Cite as 2017 Ark. App. 186
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-32
Opinion Delivered March 29, 2017
JASON HARRIS APPEAL FROM THE SALINE
APPELLANT COUNTY CIRCUIT COURT
[NO. 63CV-2015-59-2]
V.
HONORABLE GARY ARNOLD,
NORMAN BETH JUDGE
APPELLEE
AFFIRMED
BRANDON J. HARRISON, Judge
Jason Harris appeals the Saline County Circuit Court’s denial of his motion for
summary judgment. 1 He argues that the circuit court erred in finding that he was not
entitled to immunity pursuant to Ark. Code Ann. § 21-9-301 (Supp. 2015). We affirm the
circuit court.
Harris is an officer with the Little Rock Police Department K-9 Unit and was
assigned a canine officer named Ammo in October 2012. As part of his duties, Harris was
required to house Ammo at his private residence in Saline County, and he and Ammo were
required to be available on a twenty-four-hour, on-call basis to assist other officers as
needed. In August 2014, Norman Beth, Harris’s neighbor, was doing yard work at his
1
This case was originally filed in the court of appeals, but the supreme court assumed
jurisdiction in March 2016. The case was fully briefed by early June 2016, but the supreme
court took no action on the case and transferred it back to this court in February 2017.
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home when he was bitten on the leg by Ammo, who had escaped from Harris’s backyard.
Harris was not home at the time of the incident.
In January 2015, Beth filed a complaint against Harris alleging negligence and strict
liability for housing an animal known to have dangerous tendencies. Beth sought
compensatory and punitive damages for the injuries to his leg. Harris responded by denying
the allegations in their entirety and by affirmatively pleading qualified immunity.
In June 2015, Harris moved for summary judgment, arguing that there were no
genuine issues of material fact and that he was entitled to immunity pursuant to Ark. Code
Ann. § 21-9-301(a):
It is declared to be the public policy of the State of Arkansas that all counties,
municipal corporations, school districts, public charter schools, 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.
Harris argued that this immunity is extended to a municipality’s employees for acts of
negligence committed in their offical capacities and that he was acting in his official capacity
for the Little Rock Police Department by maintaining Ammo at his residence and remaining
on call twenty-four hours a day. In support, he cited Autry v. Lawrence, 286 Ark. 501, 696
S.W.2d 315 (1985), which confirmed that Ark. Stat. Ann. § 12-2901 (now codified as Ark.
Code Ann. § 21-9-301) immunized city employees when they were accused of negligence
in the performance of their official duties.
In response, Beth argued that § 21-9-301 was inapplicable because Harris was not
acting in his official capacity when the incident occurred. Beth asserted that he had never
alleged Harris was liable in his official capacity, but even if he had, Harris’s home was
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covered by a homeowner’s insurance policy, which Beth attached as an exhibit. So Harris
would be immune from liability only “to the extent that [he] may be covered by liability
insurance.” Harris replied that “the issue of insurance is not that provided to Defendant
Harris in his individual capacity but that provided to him through the City of Little Rock
in his official capacity,” so the homeowner’s policy was irrelevant.
The circuit court held a summary-judgment hearing in October 2015, during which
Harris continued to argue that one of his ongoing job duties was to care for and secure the
dog on his property, so he was acting in his official capacity. He also reasserted that the
insurance coverage to which the statute refers is the insurance coverage on the municipality
and stated, “So in this particular case, obviously the City of Little Rock is not participating
here. There’s no insurance coverage exception for this particular instance.” Beth responded
that it was not the intent of the statute to give blanket immunity to municipal employees
for their negligence. He also denied that Harris was acting within the course and scope of
his employment and that a factual question existed as to whether Harris had actually secured
Ammo in his kennel that day. Instead, Harris was sued “as a private individual for having
an inherently dangerous animal on his property, an attack dog, and not having it secured
and allowing it to get out and attack neighbors. . . . [T]he fact that he is an employee of
the Little Rock Police Department doesn’t change the fact.”
In its oral ruling, the circuit court found that this was a question of law and that
Harris’s argument was compelling. Nonetheless, the court ruled that the statute did not
provide immunity in this case, because if it did, “there is absolutely in my mind no way that
the Defendant could be liable for whatever that dog did anytime, anywhere. I can’t believe
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that’s what the statutes were intended to do and, therefore, the Motion for Summary
Judgment is denied.” In its written order denying summary judgment, the court found that
“the defendant is not entitled to immunity, [and] that Ark. Code Ann. [§] 21-9-301 and
the holding in Autry v. Lawrence, 286 Ark. 501, 696 S.W.2d 315 (1985) do not apply.”
Harris timely appealed. 2
Summary judgment is to be granted by a circuit court only 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. Sykes v. Williams, 373 Ark. 236, 239–40, 283 S.W.3d 209,
213 (2008). Once a 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. Id. After reviewing undisputed facts, summary judgment should be
denied if, under the evidence, reasonable minds might reach different conclusions from
those undisputed facts. Id. On appeal, we determine if summary judgment was appropriate
based on whether the evidentiary items presented by the moving party in support of its
motion leave a material question of fact unanswered. Id. 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. In reviewing questions of law, appellate review
is de novo. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844.
2
As a general rule, the denial of a motion for summary judgment is neither reviewable
nor appealable. Ark. Elder Outreach of Little Rock, Inc. v. Thompson, 2012 Ark. App. 681,
425 S.W.3d 779. The general rule does not apply, however, where the refusal to grant a
summary-judgment motion has the effect of determining that the appellant is not entitled
to its defense of immunity from suit, because the right of immunity from suit is effectively
lost if a case is permitted to go to trial. Id. This case is therefore appealable.
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The same arguments that the circuit court heard are made again on appeal. Harris
says again that the circuit court erred in finding that he was not acting in his official capacity
and denying him immunity because “[w]hen it comes to activities involving Ammo, Officer
Harris is an extension of LRPD or the City of Little Rock and should be afforded the
immunity set forth to protect the City of Little Rock.” In support, he cites Eshleman v.
Key, 774 S.E.2d 96 (Ga. 2015), in which the Georgia Supreme Court, in a similar fact
situation, reversed the denial of summary judgment on immunity grounds and stated:
As a DeKalb County Police officer and dog handler, Eshleman is responsible
for the care and maintenance of Andor at all times, even when she is not
working. For this reason, the allegation that Eshleman failed to secure the dog
outside her home concerns her performance of an official function, and
Eshleman presumptively is entitled to official immunity.
Id. at 98. Beth again argues that the circuit court did not err in denying summary judgment
because (1) Harris’s negligence in securing the dog did not occur within the course and
scope of his employment, so § 21-9-301 does not apply, and (2) Harris carries applicable
insurance that may cover these claims.
We affirm the circuit court’s decision because Harris failed to establish a prima facie
entitlement to summary judgment. Section 21-9-301 provides immunity to municipal
employees for acts committed during the performance of their official duties except to the
extent there is liability coverage. In Vent v. Johnson, our supreme court made clear that the
defendant had to plead and prove an absence of liability coverage to be entitled to the
immunity afforded by the statute. 2009 Ark. 92, at 14, 303 S.W.3d 46, 53. The same
black-letter principle was recently applied again in City of Little Rock v. Yang, 2017 Ark. 18,
___ S.W.3d ___. Like Vent and Yang, Harris failed to plead and prove that the city lacks
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liability coverage. This fact is reason enough to affirm the circuit court’s denial of summary
judgment.
Affirmed.
GLADWIN and MURPHY, JJ., agree.
Matthews, Sanders & Sayes, by: Mel Sayes, for appellant.
The Brad Hendricks Law Firm, by: Mattheew E. Hartness; and Robert S. Tschiemer, for
appellee.
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