Hurd v. Hurt

Cite as 2017 Ark. App. 228

ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-621

Opinion Delivered April 12, 2017

ULYSSES HURD APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. 18CV-13-95]
V.
HONORABLE THOMAS FOWLER,
JUDGE
BOB HURT AND SUE HURT
APPELLEES REVERSED AND REMANDED

LARRY D. VAUGHT, Judge

After appellant Ulysses Hurd’s leased mobile home exploded, causing him personal

injury, he filed suit against appellees Bob and Sue Hurt for negligence. The Crittenden County

Circuit Court entered an order of summary judgment finding that the Hurts owed no duty to

Hurd and dismissed his complaint. On appeal, Hurd argues that the circuit court erred in

granting summary judgment because material issues of facts are in dispute on the issues of

whether (1) the Hurts assumed a duty to repair the mobile home; (2) the Hurts failed to warn

Hurd; (3) the Hurts violated the Arkansas Fire Code; and (4) the caveat-lessee doctrine set

forth in Arkansas Code Annotated section 18-16-110 (Repl. 2015) applies. We reverse and

remand.

Hurd testified in his deposition that in January or February 2010, he moved into a

mobile home at the Broadway Trailer Park that he leased from Bob Hurt. There was no written

lease agreement. Hurd and Hurt orally agreed that Hurd would pay monthly rent of $475.
 Cite as 2017 Ark. App. 228

Hurd stated that while he lived there, he had asked Hurt to make repairs to the toilet, stove,

air conditioner, and shower. Hurd testified that he sometimes saw Bob Hurt make the repairs

and at other times the repairs were made while Hurd was at work. Hurd further testified that

when he first moved into the home he requested that Bob Hurt repair the refrigerator because

it was not cooling properly. When Hurd returned from work, the refrigerator was working.

Hurd testified that the refrigerator problem recurred on August 27, 2010. Hurd said

that he woke up that morning around 10:00 a.m. and went to his sister’s home for two to three

hours. When he returned home, he heard a loud “hysterical” hissing sound. Hurd walked

across the street to a furniture store operated by the Hurts and reported the noise to Bob Hurt.

Hurd said that he asked Bob Hurt if the hissing sound could cause an explosion, and Hurt

said no. Hurt also told Hurd that he (Hurt) put Freon in the bottom of the refrigerator and

that the noise should stop by the time Hurd returned from work. Hurd returned home and

turned on the gas stove to light a cigarette. The mobile home exploded, and Hurd was severely

burned.

It was later determined by the fire marshal that the origin of the fire was the furnace in

Hurd’s mobile home, which the fire marshal found was “located beside the refrigerator.” The

flex gas line of the furnace was disconnected, which allowed gas to escape into the mobile

home. The gas was ignited when Hurd used the stove.

Hurd filed a negligence suit against the Hurts 1 seeking compensatory and punitive

damages for the personal injuries he sustained. He alleged that the Hurts failed to maintain the

1Hurd’s complaint also pled negligence against Carolina Restrepo (the Hurts’ daughter-
in-law) and Broadway M.H.P. LLC, as potential owners of the mobile-home park. The record
reveals that at the time of Hurd’s accident, Restrepo was the record owner of the mobile-home
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furnace and mobile home in a reasonably safe condition after they had undertaken a duty by

their actions to maintain the premises; failed to warn him that the hissing sound could have

been gas escaping; and violated the Arkansas Fire Code by allowing the gas line to the furnace

to be disconnected.

The Hurts filed a motion for summary judgment, contending that there was no dispute

that they did not own the mobile home and that they did not enter into a written lease or any

other agreement with Hurd; therefore, they did not owe a common-law, statutory, or

contractual duty to him. In response, Hurd argued that there were material facts in dispute

about (1) the Hurts’ ownership and management of the mobile-home park; (2) the Hurts’

assumption of the duty by their conduct to maintain or repair the mobile home; and (3) the

Hurts’ violation of the Arkansas Fire Code. Hurd also argued that statutory protection of

landlords applies only to “the premises,” which does not include the disconnected gas line.

An order of summary judgment was entered on March 29, 2016, wherein the circuit

court found that “there are no genuine issues of material fact regarding the duty the [Hurts]

owed [Hurd]” and that “as a matter of law the [Hurts] owed no duty to [Hurd] in this matter.”

This appeal followed.

On appeal, we determine if summary judgment was appropriate based on whether the

evidentiary items presented by the moving party in support of the motion leave a material

question of fact unanswered. Moody v. Tarvin, 2016 Ark. App. 169, at 2, 486 S.W.3d 242, 243.

This court views the evidence in the light most favorable to the party against whom the motion

park. Hurd’s claims against Restrepo and Broadway M.H.P. were dismissed with prejudice in
an order filed June 8, 2016. They are not parties to this appeal.
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was filed, resolving all doubts and inferences against the moving party. Id. at 3, 486 S.W.3d at

243. Summary judgment should be granted 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. Id., 486 S.W.3d at 243. Once a moving party has established 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., 486 S.W.3d at 243.

Hurd’s first point on appeal is that the circuit court erroneously entered summary

judgment in favor of the Hurts based on its finding that they owed no duty to Hurd. Arkansas

has recognized the common-law doctrine of caveat lessee 2 for almost a century, and under

that rule, unless a landlord agrees with his tenant to repair leased premises, he cannot, in the

absence of statute, be compelled to do so or be held liable for repairs. Propst v. McNeill, 326

Ark. 623, 624, 932 S.W.2d 766, 767 (1996); see also Majewski v. Cantrell, 293 Ark. 360, 362, 737

S.W.2d 649, 651 (1987) (stating that a lessor under common law owes no duty of repair of the

premises to the lessee but that a landlord who agrees to such repairs can be held liable for

them).

The Arkansas legislature decidedly approved of the caveat-lessee doctrine by enacting

Arkansas Code Annotated section 18-16-110 in Act 928 of 2005. Hadder, 2016 Ark. App. 303,

at 9, 495 S.W.3d at 633. In section 1 of Act 928 of 2005, explaining the legislative purpose and

intent of this statute, our legislature declared that the Arkansas Supreme Court had “properly

and correctly interpreted and applied the law and that existing law should not be altered or

lessee is also known as “tenant beware.” Hadder v. Heritage Hill Manor, Inc., 2016
2Caveat

Ark. App. 303, at 4, 495 S.W.3d 628, 631.
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extended.” Hadder, 2016 Ark. App. 303, at 9, 495 S.W.3d at 633–34 (citing Acts of 2005, Act

928, § 1(c)(1)). The legislature further declared that the purpose and intent of the act was to

codify the existing Arkansas common-law rule. Id., 495 S.W.3d at 634 (citing Acts of 2005, Act

928, § 1(c)(2)). The statute states as follows:

No landlord or agent or employee of a landlord shall be liable to a tenant or a tenant’s
licensee or invitee for death, personal injury, or property damage proximately caused
by any defect or disrepair on the premises absent the landlord’s:

(1) Agreement supported by consideration or assumption by conduct of a duty to
undertake an obligation to maintain or repair the leased premises; and

(2) Failure to perform the agreement or assumed duty in a reasonable manner.

Ark. Code Ann. § 18-16-110.

In this case, the facts are undisputed that there was no written lease or proof of any

other agreement or contractual undertaking creating a legal duty on the part of the Hurts to

maintain or repair Hurd’s mobile home. 3 The only other means to attach a duty would be

through an assumption by conduct of a duty to maintain or repair the leased premises. One

who assumes to act, even though gratuitously, may thereby become subject to the duty of

acting carefully, if he acts at all. Hadder, 2016 Ark. App. 303, at 9, 495 S.W.3d at 634.

Hurd argues that there is a question of fact on the issue of whether the Hurts assumed

by conduct the duty to maintain or repair Hurd’s mobile home. He cites Hurst v. Feild, 281

Ark. 106, 661 S.W.2d 393 (1983); Majewski v. Cantrell, supra; and Thomas v. Stewart, 347 Ark. 33,

60 S.W.3d 415 (2001) in support of his position. In these three cases, the evidence was

undisputed that the parties had not entered into written lease agreements; however, there was

3Hurd makes no argument that the parties entered into an oral agreement that imposed
a legal duty on the Hurts to maintain or repair the mobile home.
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evidence in each case that the landlord/sublessor agreed to make repairs and/or made repairs

to the leased premises, and such evidence was held to be sufficient to raise a question of fact

to defeat summary judgment on the issue of whether the landlord/sublessor assumed by

conduct the duty to make repairs. Hurst, 281 Ark. at 108–09, 661 S.W.2d at 395; Majewski, 292

Ark. at 362, 737 S.W.2d at 651; Thomas, 347 Ark. at 41, 60 S.W.3d at 420.

Hurd argues that based on Hurst, Majewski, and Thomas, reversal in the case at bar is

required because facts are in dispute as to whether the Hurts assumed by conduct the duty to

repair Hurd’s mobile home. Hurd points to his deposition testimony that he asked Bob Hurt

to make repairs to the toilet, the stove, the air conditioner, and the shower; and that Hurt, or

someone on Hurt’s behalf, made repairs to the stove and the air conditioner.

Hurd also stated that when he first moved into the mobile home, he reported problems

with the refrigerator to Bob Hurt, who fixed the problem by adding Freon to it. Hurd further

said that on August 27, 2010, when he heard the hissing in his mobile home, he reported it to

Hurt and asked if it could explode. Hurt said no, that he had added Freon to the refrigerator

and that the noise should stop by the time Hurd returned from work. Bob Hurt confirmed in

his deposition that he had a conversation with Hurd on the day of the explosion about the

refrigerator. Hurt said Hurd had reported that the refrigerator was making a “bubbly gurgling

sound” and asked if it could “blow up.” Hurt explained that Hurd “was probably hearing the

high side [of the refrigerator compressor] bleed into the low side.”

Finally, Hurd attached the affidavits of Laquita Clark, Sireta Alexander Coleman, and

Opal Gonzales, all of whom were tenants of the mobile-home park at the time of the

explosion. Each tenant stated in her affidavit that Bob Hurt was at the mobile-home park

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regularly making repairs or hiring someone to make repairs. Based on this evidence, we hold

that there is a genuine issue of material fact whether the Hurts assumed by conduct the duty

to maintain or repair Hurd’s refrigerator.

The Hurts contend that summary judgment was appropriate because it is undisputed

that they did not assume by conduct the duty to maintain or repair the gas line to the furnace.

They point out that no evidence was presented that they had made any repairs or agreed to

make repairs to the furnace. They claim that any assumed duty to repair the refrigerator did

not extend to a general duty for all repairs, including the furnace gas line, and that the

refrigerator repairs were unrelated to the leaking gas line.

Our law is well settled that when a landlord undertakes to repair the premises, the

landlord is liable for any negligence in making those repairs. Barnes, Quinn, Flake & Anderson,

Inc. v. Rankins, 312 Ark. 240, 244, 848 S.W.2d 924, 926 (1993) (citing Sparks v. Murray, 120 Ark.

17, 178 S.W. 909 (1915)); see also Ark. Code Ann. § 18-16-110 (providing that a landlord is

required to perform an assumed duty in a reasonable manner).

Here, Hurd argues that the Hurts assumed by conduct the duty of repairing his

refrigerator and that there is a genuine issue of material fact as to whether they made the

repairs in a reasonable manner. He argues that in making the repair to the refrigerator, Hurt,

or someone on his behalf, “unknowingly disconnected” or “dislodged the flex line during the

installation of the Freon,” resulting in an accumulation of gas, which exploded when Hurd

turned on his stove. He cites the fire marshal’s investigative report that concluded that the

origin of the fire was the gas line running to the furnace, which was “located beside the

refrigerator.” He cites his testimony that Bob Hurt, or someone at his direction, put Freon in

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the refrigerator the day of the explosion and that just minutes before the explosion Hurt said

that he had put Freon in the bottom of the refrigerator. Hurt acknowledged that he and Hurd

had a conversation about the refrigerator that day.

Whether these facts demonstrate that the Hurts performed the repairs to the

refrigerator in a reasonable manner or whether the facts rise to the level of negligence is for

the jury to decide. Barnes, 312 Ark. at 244, 848 S.W.2d at 926. In either case, summary judgment

is not appropriate. Accordingly, we reverse and remand.

We do not reach Hurd’s second, third, and fourth points on appeal because the circuit

court did not rule on these claims. The sole basis for the circuit court’s grant of summary

judgment was that the Hurts did not owe a duty to Hurd. It is well settled that the failure

to obtain a ruling from the circuit court is a procedural bar to our consideration of the issue

on appeal. Ark. Okla. Gas Corp. v. City of Van Buren, 85 Ark. App. 157, 165, 148 S.W.3d 282,

288 (2004). It is incumbent upon the appealing party to obtain a ruling on an issue to preserve

it for review. Id., 148 S.W.3d at 288. Accordingly, Hurd’s second, third, and fourth points on

appeal are not preserved.

Reversed and remanded.

ABRAMSON and KLAPPENBACH, JJ., agree.

Rogers, Coe & Sumpter, Attorneys, by: Joe M. Rogers, for appellant.

Bart Ziegenhorn, for appellee.

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