570 S.W.3d 510
Ark. Ct. App.2019Background
- Plaintiff Paul Noel, a non-homeowner and social guest of two homeowners in Majestic Lake Village POA, fell from a 42-inch retaining wall in a common-area boardwalk at night and was injured.
- Noel accessed the POA common area (including stairs and a landing) to visit friends and returned home in the dark when he fell over the unguarded retaining wall.
- The POA (through its board/minutes) had recognized the retaining wall as dangerous and discussed installing a railing or barrier but had not acted before the accident.
- Noel sued the POA for negligence, alleging failure to install a guardrail and failure to exercise ordinary care.
- The trial court granted summary judgment for the POA, treating Noel as a licensee who knew of the wall and its lack of railings, and concluding the danger was open and obvious. Noel appealed.
- The Court of Appeals reversed and remanded, finding genuine issues of material fact (open-and-obvious danger, lighting, visibility, and possible assumed contractual duty) making summary judgment inappropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Visitor status (invitee v. licensee) | Noel: social guest for homeowners but invitee of POA for ingress/egress | POA: Noel was a social guest (licensee) on common area | Court: Noel was a licensee; social guest rule applies |
| Scope of duty owed | Noel: POA owed ordinary care to fix/warn dangerous condition; may have assumed duty by agreement | POA: duty limited to warning of hidden dangers or to refrain from willful/wanton conduct | Court: As licensee rule applies, duty is limited, but factual issues remain about assumed contractual duty and ordinary-care obligations |
| Open-and-obvious defense | Noel: in dark, dim lighting, landscaping, and proximity to stairs made the drop-off not obvious to a reasonable person | POA: Noel knew of the wall and absence of guardrail; danger was open and obvious so no duty to warn | Held: Whether the condition and risk were open and obvious is a factual question (summary judgment improper) |
| Assumption of duty (contract/board actions) | Noel: POA’s recognition/discussion of the hazard (and possible homeowner mitigation) created an assumed duty to repair/warn | POA: no contractual obligation or completed repair; any homeowner planting does not eliminate POA’s duty | Held: Existence and scope of assumed duty are factual questions for the jury |
Key Cases Cited
- Moses v. Bridgeman, 355 Ark. 460 (2003) (summary-judgment standard and burdens)
- Heigle v. Miller, 332 Ark. 315 (1998) (social guests as licensees and duty to licensees)
- Bader v. Lawson, 320 Ark. 561 (1995) (invitee definitions and duties)
- Van DeVeer v. RTJ, Inc., 81 Ark. App. 379 (2003) (definition of "obvious" danger for premises liability)
- Lloyd v. Pier West Property Owners Ass'n, 470 S.W.3d 293 (Ark. App. 2015) (condominium POA common-area duties and guest status)
- Majewski v. Cantrell, 293 Ark. 360 (1987) (landlord/lessor liability where repairs are contractually assumed)