Mildred "mima" Cazort and Laura Wallace-Pangle, as Co-Special Personal Representatives of the Estate of Adron Benton, a Minor v. Hershey Garner, M.D., and Denise Garner
2022 Ark. App. 186
| Ark. Ct. App. | 2022Background
- Six-year-old Adron Benton (diagnosed with autism) left an unfenced elementary-school playground during recess, crossed a street, and was found drowned in an unenclosed residential swimming pool on neighboring property.
- The Garners owned the home with the pool; the playground was ~82 feet from the shared property line and the pool ~238 feet from the line, with a 12–15 foot natural buffer of trees/underbrush; the pool was not visible from the playground.
- Appellants (co-special personal representatives of Adron’s estate) sued appellees for attractive nuisance and negligence, alleging the unenclosed pool near an elementary school would foreseeably attract and endanger children of tender years.
- Appellees moved for summary judgment arguing (1) Arkansas precedent bars treating ordinary bodies of water (including pools) as attractive nuisances absent unusual features and (2) no duty was owed to Adron as a trespasser/licensee absent willful or wanton conduct or notice of his presence.
- The circuit court allowed limited discovery but granted summary judgment for appellees, finding no unusual condition that would mask the hazard, that the danger was open and obvious, and no proof of willful/wanton conduct or knowledge of Adron’s presence. Appellants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a residential swimming pool is an "attractive nuisance" as a matter of law | Pools are designed to invite recreation and thus should be treated as attractive nuisances requiring fencing | Under Arkansas precedent, bodies of water (natural or artificial) are not attractive nuisances absent an unusual or hidden danger | Pools are not per se attractive nuisances; Arkansas treats pools like other bodies of water — not an attractive nuisance absent unusual element |
| Whether the Garners’ pool was an attractive nuisance on these facts | The pool’s proximity to an elementary school and foreseeability of children warranted jury consideration | No unusual or concealed condition existed; hazard was open and obvious and not alleged to be masked | Court found no unusual condition or masking; pool was not an attractive nuisance |
| Duty owed to Adron under negligence principles (trespasser/licensee) | If attractive-nuisance doctrine applies, a higher duty of reasonable care exists to protect children of tender years | Adron was a trespasser or licensee; duty owed is only to refrain from willful/wanton harm and to act if presence known | Because attractive-nuisance rule does not apply here, landowner’s duty remained limited; no proof of willful/wanton conduct or notice of Adron’s presence |
| Whether summary judgment was proper | Factual disputes (foreseeability, duty, and reasonable precautions) precluded summary judgment; discovery incomplete | No genuine material facts creating liability under attractive-nuisance or negligence theories; defendants entitled to judgment as a matter of law | Affirmed: no genuine issue of material fact on attractive nuisance or negligence; summary judgment proper |
Key Cases Cited
- Carmichael v. Little Rock Housing Authority, 227 Ark. 470 (1957) (establishes that bodies of water are not attractive nuisances absent unusual or hidden dangers)
- Bader v. Lawson, 320 Ark. 561 (1995) (describes duty under attractive-nuisance doctrine to exercise reasonable care for children of tender years)
- Cooper v. Diesel Service, Inc., 254 Ark. 743 (1973) (pond not an attractive nuisance absent features beyond mere water; explains concept of a “trap”)
- In re Poston, 318 Ark. 659 (1994) (noted that swimming pools may raise distinct considerations but did not hold pools are attractive nuisances as a matter of law)
- Moses v. Bridgeman, 355 Ark. 460 (2003) (summary judgment standard and burden of proof rules)
- Webb v. Pearson, 244 Ark. 109 (1968) (explains duties owed to licensees and trespassers)