City of Fayetteville, David Jurgens, Mark Risk, David Fournet, Andrea Fournet v. Jeanny Romine
Annotate this Case
Download PDF
SUPREME COURT OF ARKANSAS
No.
07-1088
CITY OF FAYETTEVILLE, DAVID
JURGENS, MARK RISK, DAVID
FOURNET, ANDREA FOURNET,
APPELLANTS,
VS.
JEANNY ROMINE,
APPELLEE,
Opinion Delivered May 1, 2008
AN APPEAL FROM THE CIRCUIT
COURT OF WASHINGTON
COUNTY, ARKANSAS, NO. CIV-051221-4, HONORABLE MARY ANN
GUNN, CIRCUIT JUDGE
REVERSED AND REMANDED.
TOM GLAZE, Associate Justice
This case presents an issue of whether a city employee is immune from suit in a civilrights action.
The appellee, Ms. Jeanny Romine, lives at 11 Trenton Boulevard in
Fayetteville. Around September of 1998, she began to notice the smell of raw sewage in her
back yard. Romine notified the City of Fayetteville about the sewage odor, and subsequent
testing by the City revealed that the source of the odor was raw sewage that was seeping
downhill from her neighbors’ clogged sewer lines and overflowing from a clean-out meter
box in Romine’s yard. Although, at the time, the City had determined that the sewer lines
were private lines, rather than city-owned lines, it nonetheless cleaned out the sewer drains
that were causing the problem. In addition, in October of 1998, the City offered to pay
Romine $880 for an easement over her property. The easement would have allowed the
City to go on to Romine’s property, reline the existing sewer pipe, and replace the clean-out
box with a manhole for future access.
07-1088
However, Romine refused the offer of $880 for the easement, believing the offer was
not sufficient compensation for her land. After she refused to accept the easement, the City
informed her that, because the sewer lines were private, there was nothing else the City could
do for her. For the next seven years, sewage continued to seep over Romine’s land from the
defective sewer lines, and Romine filed suit against the City of Fayetteville in 2005. In
addition, Romine sued her uphill neighbors — David and Andrea Fournet and Mark Risk
— and appellant David Jurgens, the Superintendent of the Water and Sewer Division for the
City of Fayetteville.
Romine’s complaint raised counts of inverse condemnation, outrage, and negligence
against the City; outrage, negligence, public nuisance, and trespass against the neighbors; and
“toxic assault and battery” against both the City and the neighbors. In addition, Romine
brought a civil-rights claim against the City and Jurgens. Specifically, Romine alleged that
Jurgens was personally aware of the presence of raw, untreated sewage on her property in
1998 and was aware of the hazards of exposure to raw sewage. Further, she contended that,
after she declined the City’s offer of $880 for an easement, “Jurgens informed [her] that the
offer was withdrawn and that the City of Fayetteville would take no further steps to remedy
the sewage problem.” Jurgens’s actions in “withdrawing” the offer for the proposed
easement, Romine claimed, constituted a deprivation of her Fifth Amendment rights to be
free from governmental takings of her property without just compensation.
Jurgens answered, contending that any contact he had with Romine was solely in his
official capacity as a city employee, and as such, he was immune from suit. On July 23, 2007,
-2-
07-1088
Jurgens moved for summary judgment, arguing that, because he was sued in his official
capacity, he was protected from suit by Ark. Code Ann. § 21-9-301 (Repl. 2004).
He
alleged that, because he had acted in good faith in his dealings with Romine, and she had not
pled any facts establishing that he acted with malice, he was entitled to summary judgment.
After a hearing on September 7, 2007, the Washington County Circuit Court denied
Jurgens’s summary-judgment motion, finding that there were disputed facts as to whether
Jurgens had acted with conscious indifference towards Romine’s problems. Jurgens filed his
notice of appeal on September 18, 2007.
As a general rule, the denial of a motion for summary judgment is neither reviewable
nor appealable. See Arkansas River Educational Servs. v. Modacure, 371 Ark. 466, ___ S.W.3d
___ (2007). However, that general rule does not apply where the refusal to grant a
summary-judgment motion has the effect of determining that the appellant is not entitled to
immunity from suit, as the right of immunity from suit is effectively lost if a case is permitted
to go to trial. See Modacure, supra. The issue of whether a party is immune from suit is purely
a question of law, see Smith v. Brt, 363 Ark. 126, 211 S.W.3d 485 (2005), and is reviewed de
novo. Modacure, supra.
Arkansas affords a measure of immunity from suit to municipal corporations and their
employees. Ark. Code Ann. § 21-9-301 (Repl. 2004) provides as follows:
(a) It is declared to be the public policy of the State of Arkansas that all
counties, municipal corporations, school districts, special improvement districts,
and all other political subdivisions of the state and any of their boards,
commissions, agencies, authorities, or other governing bodies shall be immune
from liability and from suit for damages except to the extent that they may be
covered by liability insurance.
-3-
07-1088
(b) No tort action shall lie against any such political subdivision because
of the acts of its agents and employees.
This court has consistently held that § 21-9-301 provides city employees with immunity from
civil liability for negligent acts, but not for intentional acts. See Smith v. Brt, 363 Ark. at 130,
211 S.W.3d at 489; Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 720 (1992).
In this case, Romine sued Jurgens in his official capacity as Sewer and Water
Maintenance Supervisor for the City of Fayetteville.1 In cases involving the existence of
immunity under § 21-9-301, this court has utilized the analysis performed in interpreting the
counterpart qualified-immunity statute that applies to state employees, Ark. Code Ann. § 1910-305 (Repl. 2007). See Smith v. Brt, supra; City of Farmington v. Smith, 366 Ark. 473, 237
S.W.2d 1 (2006). Section 19-10-305 provides state employees with qualified immunity from
civil liability for non-malicious acts occurring within the course of their employment. City
of Farmington, supra; Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). In interpreting
§ 19-10-305, we have traditionally been guided by the analysis adopted by the United States
Supreme Court for qualified-immunity claims in federal civil-rights actions. See Fegans v.
Norris, 351 Ark. 200, 89 S.W3.d 919 (2002) (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
1
In her brief, Romine attempts to argue that her suit was actually against Jurgens in
his individual capacity, but her assertion is belied by her express representations to the trial
court. Her complaint alleged that she sued Jurgens solely in his official capacity, and at the
hearing on Jurgens’s summary-judgment motion, the circuit court specifically asked
Romine whether she was suing him in his official capacity. She replied that she was suing
Jurgens in his official capacity, not “privately.” The court specifically referenced this
exchange in its order, writing that “plaintiff’s counsel confirmed on the record that the
allegations as against David Jurgens are solely in his official capacity.”
-4-
07-1088
In both Smith v. Brt, supra, and City of Farmington v. Smith, supra, this court has
explained the qualified immunity issue as follows:
Under that analysis, a motion for summary judgment based upon qualified
immunity is precluded only when the plaintiff has asserted a constitutional
violation, demonstrated the constitutional right is clearly established, and raised
a genuine issue of fact as to whether the official would have known that the
conduct violated that clearly established right. Fegans v. Norris, supra (citing
Baldridge v. Cordes, 350 Ark. 114, 120-21, 85 S.W.3d 511, 514-15 (2002)). An
official is immune from suit if his or her actions did not violate clearly
established principles of law of which a reasonable person would have
knowledge. Id. (citing Harlow v. Fitzgerald, 451 U.S. 800 (1982)). The objective
reasonable-person standard utilized in qualified-immunity analysis is a legal
inquiry. Baldridge v. Cordes, supra.
The inquiry outlined above is a restatement of the standard used by this
court to evaluate motions for summary judgment on the ground of qualified
immunity. See Baldridge v. Cordes, supra (citing Pace v. City of Des Moines, 201
F.3d 1050 (8th Cir. 2000)). The Eighth Circuit Court of Appeals has
emphasized, however, that such a restatement of the standard is incomplete:
“Courts deciding questions of qualified immunity must also recognize that
‘whether summary judgment on grounds of qualified immunity is appropriate
from a particular set of facts is a question of law.’” Pace v. City of Des Moines,
201 F.3d at 1056 (citing Lambert v. City of Dumas, 187 F.3d 931, 935 (1999)).
City of Farmington v. Smith, 366 Ark. at 478-79, 237 S.W.3d at 5-6; Smith v. Brt, 363 Ark. at
131, 211 S.W.3d at 489.
Applying these rules, Romine’s suit against Jurgens is therefore barred unless she has
“asserted a constitutional violation, demonstrated the constitutional right is clearly established,
and raised a genuine issue of fact as to whether the official would have known that the
conduct violated that clearly established right.” Smith v. Brt, 363 Ark. at 131, 211 S.W.3d at
489; see also Fegans v. Norris, supra; Baldridge v. Cordes, supra. Because of the interlocutory
nature of this type of appeal, our court is limited to determining whether the law or right
-5-
07-1088
Jurgens is alleged to have violated was clearly established at the time of the alleged violation,
and whether a reasonable person would have known about it. City of Farmington, 366 Ark.
at 479, 237 S.W.3d at 6.
Romine asserts that she had a constitutional right to be “free from uncompensated
governmental takings of her property.” Although Jurgens counters that there was no “taking”
at all, let alone an uncompensated taking, Romine appears to be contending that the fact that
the sewage overflow on her property constituted a form of inverse condemnation. See
Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990). In Robinson, a homeowner
sued the City of Ashdown because a city-owned sewer line consistently failed and caused
sewage to overflow into the homeowner’s home over a period of nine years. This court held
that a continuing trespass or nuisance, in the form of constantly overflowing sewage, could
ripen into inverse condemnation. More specifically, the Robinson court held that, “[w]hen
a municipality acts in a manner which substantially diminishes the value of a landowner’s land,
and its actions are shown to be intentional, it cannot escape its constitutional obligation to
compensate for a taking of property on the basis of its immunity from tort action.” Robinson,
301 Ark. at 232, 783 S.W.2d at 56-57. Thus, it would appear that Romine has asserted a
clearly established constitutional right — i.e., the right to be free from government action that
diminishes the value of her land. See Ark. Const. art. 2, § 22 (“The right of property is before
and higher than any constitutional sanction; and private property shall not be taken,
appropriated or damaged for public use, without just compensation therefor.”).
-6-
07-1088
However, that is not the end of the analysis. Even though Romine has asserted a
constitutional violation and demonstrated that the constitutional right was clearly established,
she must still raise a genuine issue of fact as to whether the official would have known that
his conduct violated that clearly established right. See City of Farmington, 366 Ark. at 478, 237
S.W.3d at 5. Romine alleges that Jurgens should have known that “refusing to maintain a
public sewer system because an affected landowner refused to sell her property for less than
fair market value violated constitutionally protected rights.”
Romine’s argument is premised on her assertion that Jurgens failed to maintain a public
sewer system — i.e., one that was the City’s responsibility. However, at the time of Jurgens’s
sole encounter with Romine in 1998, he determined that the faulty sewer lines had not been
installed by the City and that the City did not own the line at any time prior to 1997 or
thereafter. Jurgens’s determination was based on the facts that: 1) the City had no easement;
2) the line had bends in it; and 3) it did not have a manhole at the end. Jurgens averred that
city-owned sewer lines “are laid straight, have manholes on the ends, are six inches in
diameter, and have easements or are in rights-of-way.” Romine’s own expert witness, James
Moore, Ph.D., testified that a city engineer looking at Romine’s pipes could, reasonably and
in good faith, make the determination that the sewer lines were private. Therefore, Jurgens
did not, as Romine accuses, “refuse to maintain a public sewer system.” Rather, he declined
to trespass on private property without the homeowner’s consent when the homeowner
rejected the City’s offer to purchase an easement.
-7-
07-1088
A party opposing a motion for summary judgment must meet proof with proof. See
Gallas v. Alexander, 371 Ark. 106, ___ S.W.3d ___ (2007); City of Farmington v. Smith, supra.
In his motion for summary judgment, Jurgens asserted that he met with Romine on one
occasion in the fall of 1998 in order to discuss the easement. By deposition testimony, Jurgens
further explained that he was there as the project manager for the larger sewer rehabilitation
project that Fayetteville was undertaking at the time, and he was the most knowledgeable
person about that project. Jurgens stated that he did not “withdraw” the City’s offer to
purchase an easement, but instead simply advised Romine that, without an easement, the City
would later be unable to do the specific repair work it proposed at that time. He explained
to her that if she refused the easement, neither he nor any other employee of the City would
be able to unclog or provide any other maintenance to the line in the future. Jurgens further
stated it was his understanding that, if the City did not have a legal easement over a sewer
line, then it could not legally maintain or improve the line, because the City would, in those
circumstances, be trespassing on private property.
Romine offered nothing to rebut the factual assertions raised in Jurgens’s deposition
offered in support of his motion for summary judgment. In her response to his motion,
Romine alleged that, “[r]egardless of whether Jurgens withdrew his initial offer, or whether
Romine refused an insufficient and ineffective offer, Jurgens still had a duty to prevent sewage
from overflowing onto Romine’s property.” Her argument, however, does not refute
Jurgens’s factual assertion that, if the sewer lines were not owned by the City, but were
instead private lines, the City — and by extension, Jurgens — owed no duty to Romine.
-8-
07-1088
Thus, while Romine may have arguably alleged a violation of a clearly established
constitutional right, she has failed to raise a genuine issue of fact as to whether Jurgens should
have known that his actions as a city employee violated that right. In the absence of evidence
showing that Jurgens knew or should have known that he was violating her rights, the circuit
court should have found that Jurgens was entitled to immunity and granted his motion for
summary judgment on that basis.
The parties raise additional arguments, but it is unnecessary to dwell on them at any
length. For instance, Jurgens also cites cases interpreting § 19-10-305 that hold government
officials are immune for non-malicious acts occurring within the course of their employment.
See, e.g., Simons v. Marshall, 369 Ark. 447, ___ S.W.3d ___ (2007) (discussing malice); Fegans
v. Norris, supra; Fuqua v. Flowers, 341 Ark. 901, 20 S.W.3d 388 (2000). However, those cases
were all specifically brought under § 19-10-305 and involved civil-rights actions brought
against State employees. Section 19-10-305 explicitly provides that “[o]fficers and employees
of the State of Arkansas are immune from liability and from suit, except to the extent that
they may be covered by liability insurance, for damages for acts or omissions, other than
malicious acts or omissions, occurring within the course and scope of their employment.” Ark.
Code Ann. § 19-10-305(a) (Repl. 2007) (emphasis added).
The instant case, by contrast, is governed by the analysis in Smith v. Brt and City of
Farmington v. Smith, as those cases deal specifically with § 21-9-301, which does not contain
the same kind of language about “other than malicious acts or omissions.” Therefore,
although the parties go into some depth about the question of malice, it is irrelevant.
-9-
07-1088
Also irrelevant — to some degree — is the discussion of whether malice could be
inferred by Jurgens’s “conscious indifference” to Romine’s situation. The circuit court based
its ruling, in part, on its belief that there were disputed facts as to whether Jurgens and the
City acted with conscious indifference. In her arguments to the trial court and in her
appellate brief, Romine urges that malice could be inferred by applying a “conscious
indifference” standard. However, that standard was adopted in Shepherd v. Washington County,
331 Ark. 480, 962 S.W.2d 779 (1998), a case involving a civil-rights claim brought against
the State Police when an inmate under police custody escaped and shot a bystander. This
court held that, to infer malice from a state actor’s conscious indifference, it must be shown
that, “indifferent to consequences, the defendant intentionally acted in such a way that the
natural and probable consequence of his act was injury to the plaintiff.” Shepherd, 331 Ark.
at 504, 962 S.W.2d at 790.
However, Shepherd was strictly limited to its facts, see id. at 501, 504-05, 962 S.W.2d
at 789, 790, and its reach was severely limited by this court in Grayson v. Ross, 369 Ark. 241,
___ S.W.3d ___ (2007), in which this court held that the standard applicable to claims under
the Arkansas Civil Rights Act involving a pretrial detainee is “deliberate indifference.”
Accordingly, because both Shepherd and Grayson present fact situations vastly different from
the situation involved in the instant case, Romine’s reliance on them is inapposite.
In sum, Jurgens established that he was entitled to qualified immunity under Ark. Code
Ann. § 21-9-301, and the circuit court erred in denying his motion for summary judgment.
The case is reversed and remanded for entry of an order consistent with this opinion.
-10-
07-1088
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.