Eileen Heigle v. Jimmie D. Miller

Eileen HEIGLE v. Jimmie D. MILLER

97-652                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 19, 1998


1.   Judgment -- summary judgment -- when granted. -- Summary judgment
     should only be granted when it is clear that there are no
     genuine issues of material fact to be litigated, and the
     moving party is entitled to judgment as a matter of law; where
     reasonable minds could differ as to the conclusions they could
     draw from the facts presented, summary judgment should not be
     granted.

2.   Judgment -- summary judgment -- movant's burden. -- The burden of
     sustaining a motion for summary judgment is the responsibility
     of the moving party; once the moving party has established a
     prima facie entitlement to summary judgment, the opposing
     party must meet proof with proof and demonstrate the existence
     of a material issue of fact; the appellate court views the
     evidence in a light most favorable to the party against whom
     the motion was filed, resolving all doubts and inferences
     against the moving party.

3.   Negligence -- premises liability -- invitee and licensee distinguished. --
     An "invitee" is one induced to come onto property for the
     business benefit of the possessor; a "licensee" is one who
     goes upon the premises of another with the consent of the
     owner for one's own purposes and not for the mutual benefit of
     oneself and the owner.

4.   Negligence -- premises liability -- "invitee" category has not been
     expanded. -- The supreme court has declined to expand the
     "invitee" category beyond that of a public or business invitee
     to one whose presence is primarily social.

5.   Negligence -- premises liability -- appellant was licensee in appellee's
     home. -- The facts in the case demonstrated that appellant was
     a licensee in appellee's home: the primary purpose of
     appellant's presence on the occasion of her injury was social;
     she had been invited there for dinner and to spend the
     evening; that appellant had brought some food and cigarettes
     to appellee was merely incidental to her social purpose of
     visiting a friend; moreover, the fact that her social visit
     was emotionally beneficial to appellee did not alter the
     nature of the relationship between the two women or
     appellant's purpose for going to appellee's home.

6.   Negligence -- premises liability -- duty owed is question of law. -- The
     question of the duty owed by one person to another is always
     a question of law and never one for the jury.

7.   Negligence -- premises liability -- duty of care landowner owes licensee. -
     - A landowner owes a licensee the duty to refrain from
     injuring him or her through willful or wanton conduct; where,
     however, the landowner discovers that a licensee is in peril,
     he or she has a duty of ordinary care to avoid injury to the
     licensee; this duty takes the form of warning a licensee of
     hidden dangers if the licensee does not know or have reason to
     know of the conditions or risks involved.

8.   Negligence -- premises liability -- issue of disputed facts regarding
     appellee's duty to warn appellant of dangerous condition -- summary
     judgment inappropriate. -- Based upon testimony concerning
     appellee's bathroom, the supreme court concluded that there
     was an issue of disputed facts regarding whether appellee had
     a duty to warn appellant of the dangerous condition in the
     bathroom; a jury could have determined that the dangers
     associated with the recurring condition that made the bathroom
     floor unsafe were hidden or, at least, not easily recognized,
     especially given the darkness of the area at the time of the
     accident; summary judgment was therefore inappropriate.

9.   Negligence -- "slip & fall" case -- requirements to prevail. -- Typical
     "slip and fall" cases occur in public places, which often
     occupy a great deal of space, and involve isolated incidents
     where anything could have been spilled or placed on the floor
     by anyone at anytime without the owner's knowledge; to prevail
     in a "slip and fall" case, a plaintiff must show that: (1) the
     presence of the substance upon the premises was the result of
     the defendant's negligence, or (2) the substance had been on
     the floor for such a length of time that the defendant knew or
     reasonably should have known of its presence and failed to use
     ordinary care to remove it.  

10.  Negligence -- premises liability -- "slip & fall" analysis not required --
     determination of duty to warn of hidden dangers required -- reversed and
     remanded. -- Where the presence of a foreign substance on the
     bathroom floor was not a one-time incident; where the facts
     presented showed that there was a recurring condition that
     frequently made the bathroom floor slick and unsafe; where
     appellee admittedly knew that her husband would urinate on the
     floor virtually every time he used the restroom and further
     knew that the floor was slick when a piece of carpet was not
     in place, the supreme court concluded that the particular
     facts of the case did not require an analysis under a
     traditional "slip and fall" theory of recovery; rather, the
     issue presented required a determination of the duty to warn
     of hidden dangers; accordingly, the court reversed the ruling
     of the trial court regarding the issue of whether appellee
     breached the duty owed to appellant as a licensee and remanded
     the matter.


     Appeal from Cleburne Circuit Court; John Dan Kemp, Judge;
reversed and remanded.
     Pope, Ross, Dendy & Cazort, by: Brad A. Cazort; and John K.
Shamburger, for appellant.
     Snellgrove, Laser, Langley, Lovett & Culpepper, by: Todd
Williams, for appellee.

     Donald L. Corbin, Justice.
     This is a premises liability case.  Appellant Eileen Heigle
appeals the judgment of the Cleburne County Circuit Court granting
summary judgment to Appellee Jimmie D. Miller.  On appeal,
Appellant asserts that the trial court erred (1) in finding that
Appellant was a licensee rather than an invitee in Appellee's home;
(2) in applying the wrong standard of care to her negligence claim;
and (3) in granting summary judgment when there were genuine issues
of material fact to be adjudicated.  Our jurisdiction of this
appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(15), as it presents
questions involving the law of torts.  We find merit to
Appellant's second point, and we reverse.
     The undisputed facts are as follows.  Appellant had been
invited by Appellee to come over to Appellee's house for dinner and
to spend the night.  Appellee was essentially home bound, having to
take care of her eighty-year-old husband who suffered from
deteriorating health conditions, including incontinence and poor
eyesight.  As a result of his health problems, Appellee's husband
frequently urinated on the bathroom floor, in his attempts to
relieve himself.  On the night in question, Appellant was injured
when she slipped on Appellee's bathroom floor, which had been wet
with urine.  Appellee was asleep when the accident occurred. 
Appellee normally kept a piece of carpet on the bathroom floor to
help prevent the floor from being slick with urine when her husband
went to the rest room.  Periodically, the carpet was not in the
bathroom, as it was being cleaned and allowed to air out for
several days.  The carpet had been taken up a day or two prior to
the date that Appellant fell.  Appellant alleged in her complaint
that Appellee was negligent for failing to warn her of the slick
condition, despite Appellee's knowledge of it. 
     The trial court granted Appellee's motion for summary
judgment, finding that Appellant was a licensee in Appellee's home
and that, as a result, the duty of care owed to Appellant was to
refrain from injuring her through willful or wanton conduct or to
warn of hidden dangers where the licensee does not know or has no
reason to know of the conditions or risks involved.  The trial
court analyzed the claim as a "slip and fall" case, ruling that
Appellant must prove either (1) that the presence of a substance
upon the premises was the result of Appellee's negligence, or (2)
that the substance was on the floor for such a length of time that
Appellee knew or should have known of its presence and failed to
use ordinary care to remove it.  The trial court found that, while
it was undisputed that the bathroom floor was wet, Appellant did
not present any proof that the liquid was negligently placed there
or allowed to remain there.  The trial court found further that
there was no evidence showing that anyone had fallen previously or
that Appellee had knowledge that the bathroom floor was wet prior
to Appellant's entering the room that night and falling. 
Additionally, the trial court determined that there was no proof of
a breach of a duty to warn Appellant of any hidden dangers. 
     Summary judgment should only be granted when it is clear that
there are no genuine issues of material fact to be litigated, and
the moving party is entitled to judgment as a matter of law.  Pugh
v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).  Where reasonable
minds could differ as to the conclusions they could draw from the
facts presented, summary judgment should not be granted.  Brunt v.
Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994).  The burden
of sustaining a motion for summary judgment is the responsibility
of the moving party.  Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997).  Once the moving party has established a prima
facie entitlement to summary judgment, the opposing party must meet
proof with proof and demonstrate the existence of a material issue
of fact.  Pugh, 327 Ark. 577, 940 S.W.2d 445.  This court views the
evidence in a light most favorable to the party against whom the
motion was filed, resolving all doubts and inferences against the
moving party.  Id.   
                     I.  Appellant's Status
     For her first point for reversal, Appellant argues that the
trial court erred in ignoring the law set out in AMI 1106 and
thereby failing to recognize her status as an invitee rather than
a licensee.  She contends that she was invited to Appellee's home
and that her visit there on that evening was for a purpose mutually
beneficial to both of them.  She asserts that Appellee received
several benefits from her visit, namely that she brought Appellee
food and cigarettes and provided an emotional benefit to Appellee
by serving as an outlet for her need to socialize with someone
other than her husband.  Appellant contends that the trial court
erred in classifying her as a licensee instead of an invitee.  We
disagree.
     This court has defined "invitee" as "one induced to come onto
property for the business benefit of the possessor."  Bader v.
Lawson, 320 Ark. 561, 564, 898 S.W.2d 40, 42 (1995) (citing Lively
v. Libbey Memorial Physical Medicine Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992); Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991);
Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984)). 
A "licensee" is one who goes upon the premises of another with the
consent of the owner for one's own purposes and not for the mutual
benefit of oneself and the owner.  Id.  This court has declined to
expand the "invitee" category beyond that of a public or business
invitee to one whose presence is primarily social.  See Bader, 320
Ark. 561, 898 S.W.2d 40; Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991). 
     In Tucker, 307 Ark. 440, 821 S.W.2d 470, this court was faced
with the question of whether the meaning of "mutual benefit," as
used in the definition of "invitee," should be extended to include
situations in which the primary purpose of the invitation is
social.  There, Tucker lived in Sullivan's house and was engaged to
marry him.  During that time, Tucker was severely burned in an
accident at Sullivan's home.  Tucker filed suit against Sullivan,
alleging that he failed to use ordinary care to maintain the
premises in a reasonably safe condition, and that he knew of the
danger caused by the proximity of the gasoline to the unguarded gas
dryer, but failed to warn her.  Sullivan argued that Tucker was a
licensee, as she was either a tenant on the premises or a social
guest.  In holding that the definition of "invitee" should not be
extended to such social situations, this court stated that, even
assuming Sullivan had extended an invitation to Tucker to live with
him, "courts usually require a showing that the invitee's `presence
on the land was, actually or apparently, desired by the defendant,
generally for some purpose other than social intercourse.'"  Id. at
444, 821 S.W.2d  at 472 (quoting 62 Am. Jur. 2d Premises Liability
 89 (1990)).  This court held that Tucker was properly categorized
as a licensee, as there was no evidence that they had contemplated
anything other than a social arrangement; the fact that Tucker paid
some bills and living expenses was "merely incidental to the
romantic relationship," as there was no indication that she was
obligated to do so.  Id.
     Similarly, in Bader, 320 Ark. 561, 898 S.W.2d 40, this court
held that a child who was injured while playing on her neighbor's
trampoline was not an invitee because her presence on the
neighbor's property was primarily social.  The plaintiff, the
child's father, had argued that the child was an invitee due to the
fact that the two families often entertained each other and that,
from time to time, each family had looked after the children of the
other, thus conferring some economic benefit on one another. 
Relying on Tucker, this court declined to extend the definition of
"invitee" to a social situation.    
     Here, the facts demonstrate that Appellant was a licensee in
Appellee's home.  The primary purpose of her presence on that
occasion was social; she had been invited there for dinner and to
spend the evening.  That she brought some food and cigarettes to
Appellee was merely incidental to her social purpose of visiting a
friend.  Moreover, the fact that her social visit was emotionally
beneficial to Appellee does not alter the nature of the
relationship between the two women or Appellant's purpose for going
to Appellee's home on the night in question.  We thus agree with
the trial court's finding that Appellant was a licensee.  We now
turn to the issue of the duty of care owed to Appellant. 
                       II.  Duty of Care
     Appellant argues that even if she were properly classified as
a licensee, the trial court erred in applying the wrong standard of
care.  We agree.  
     The question of the duty owed by one person to another is
always a question of law and never one for the jury.  Bader, 320
Ark. 561, 898 S.W.2d 40.  A landowner owes a licensee the duty to
refrain from injuring him or her through willful or wanton conduct. 
Id.  Where, however, the landowner discovers that a licensee is in
peril, he or she has a duty of ordinary care to avoid injury to the
licensee.  Id.  This duty takes the form of warning a licensee of
hidden dangers if the licensee does not know or have reason to know
of the conditions or risks involved.  Id.  Here, Appellant concedes
that the facts of this case do not support a finding that Appellee
acted willfully or wantonly in causing her injuries; instead, she
argues that Appellee knew of the recurring condition that made the
bathroom floor particularly unsafe, but she failed to warn
Appellant of the danger.    
     On the subject of hidden dangerous conditions, Professors
Prosser and Keeton have written:
     The theory usually advanced in support of this duty is
     that, by extending permission to enter the land, he
     represents that it is as safe as it appears to be, and
     when he knows that it is not there is "something like
     fraud" in his failure to give warning.  The licensee may
     be required to accept the premises as the occupier uses
     them, but he is entitled to equal knowledge of the
     danger, and should not be expected to assume the risk of
     a defective bridge, an uninsulated wire, an unusually
     slippery floor, or a dangerous step, in the face of a
     misleading silence.
          The duty arises only when the occupier has actual
     knowledge of the risk, although this may be shown by
     circumstantial evidence, and he is held to the standard
     of a reasonable person in realizing the significance of
     what he has discovered. . . .  The duty ordinarily is not
     to maintain the land in safe condition, but to exercise
     reasonable care to warn the licensee of the danger; so
     that if it is known or must be obvious to him, he must
     look out for himself, and there is no further
     obligation. . . .  The perils of darkness usually are
     held to be assumed by one who voluntarily proceeds into
     it, but if the occupier has any special reason to believe
     that the licensee will encounter a particular danger
     there, of which he is unaware, there may still be a duty
     to give warning.

W. Page Keeton et al., Prosser and Keeton on the Law of Torts  60,
at p. 417-18 (5th ed. 1984) (footnotes omitted) (emphasis added). 
     In her deposition, Appellee stated that her husband had
problems controlling his bladder and that, at times, he would wet
himself.  She stated that her house had only one bathroom, and that
there was a little night light in the room that she kept on for her
husband.  She stated that she knew her husband would get up two or
three times during the night to go to the bathroom, and that every
time he did, he would miss the toilet.  She stated that she kept a
piece of carpet in the bathroom because the floor was slick.  She
stated that when the carpet was in the bathroom, the floor was not
slick.  She stated that she periodically took the carpet out of the
bathroom in order to wash it and let it air out for several days. 
She stated that she had taken up the carpet to clean it a day or
two before Appellant came to her home, and that she always left it
out for several days when she cleaned it.  She also stated that she
was asleep when the accident occurred.  She stated that after the
incident had happened, she apologized to Appellant for not warning
her about the condition of the bathroom; she admitted that had she
warned Appellant about her husband's urinating on the bathroom
floor, Appellant probably would have been more careful and would
not have slipped and hurt herself.  She stated that no one else had
ever slipped or fallen in the bathroom and that it had not occurred
to her to warn Appellant of the condition.
     Netta Sue Heigle, Appellant's sister-in-law, stated in her
deposition that she was present in Appellee's home on the date in
question.  She indicated that she had helped Appellee take care of
her husband in the past.  She stated that she saw Appellee's
husband go into the bathroom and then come out of the room.  She
stated that a few minutes later, she saw Appellant go into the
bathroom and then heard a loud thump.  She stated that she then
went into the bathroom and saw urine all over the floor.  She
stated that when the carpet was on the bathroom floor, the floor
was not slick, but that when the carpet was not in place, the floor
was definitely slick.  She stated that the night light in the
bathroom provided enough light to see the toilet and the sink, but
not enough to see the urine on the floor.  She stated that she was
aware that Appellee's husband would urinate on the floor almost
every time he went to the restroom.  She stated that she had not
heard Appellee ever warn Appellant about the condition of the
bathroom floor. 
     Based upon the foregoing testimony, we conclude that there was
an issue of disputed facts with regard to whether Appellee had a
duty to warn Appellant of the dangerous condition in the bathroom. 
A jury could have determined that the dangers associated with the
recurring condition that made the bathroom floor unsafe were hidden
or, at least, not easily recognized, especially given the darkness
of the area at the time of the accident.  See Lively, 311 Ark. 41,
841 S.W.2d 609.  As such, summary judgment was inappropriate.  
     Appellant additionally contends that the trial court
erroneously analyzed her negligence claim as a "slip and fall"
case.  Although we believe that this is a "slip and fall" case, we
agree that the particular facts alleged in this case involve a duty
of care different from that focused on by the trial court.  
     Typical "slip and fall" cases occur in public places, which
often occupy a great deal of space, and involve isolated incidents
where anything could have been spilled or placed on the floor by
anyone at anytime without the owner's knowledge.  As such, our case
law provides that in order to prevail in a "slip and fall" case, a
plaintiff must show that:  (1) the presence of the substance upon
the premises was the result of the defendant's negligence, or (2)
the substance had been on the floor for such a length of time that
the defendant knew or reasonably should have known of its presence
and failed to use ordinary care to remove it.  Mankey v. Wal-Mart
Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993).  See also Derrick
v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991);
Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373
(1991); Skaggs Co., Inc. v. White, 289 Ark. 434, 711 S.W.2d 819
(1986).  This was the legal analysis employed by the trial court. 
    Here, the presence of the foreign substance on the bathroom
floor was not a one-time incident; the facts presented show that
there was a recurring condition that frequently made the bathroom
floor slick and unsafe.  Moreover, Appellee admittedly knew that
virtually every time her husband used the restroom, he would
urinate on the floor.  She further knew that when the piece of
carpet was not in place in the bathroom, the floor was slick. 
Thus, the particular facts of this case do not require an analysis
under a traditional "slip and fall" theory of recovery; rather, the
issue presented requires a determination of the duty to warn of
hidden dangers.  Accordingly, we reverse the ruling of the trial
court as to the issue of whether Appellee breached the duty owed to
Appellant as a licensee, and we remand the case for further
proceedings consistent with this opinion.  
     Reversed and remanded.