432 S.W.3d 627
Ark.2014Background
- Certified question from Western District of Arkansas FTCA case over ARUS 18-11-307(1) meaning of malicious.
- Roeder, as administratrix for multiple estates, sued the United States under FTCA alleging Forest Service negligence.
- Albert Pike Recreation Area flood in June 2010 caused multiple camper deaths; 20 fatalities.
- ARUS immunizes landowners from liability for recreational use, with two exceptions including malicious failure to guard or warn against a known ultrahazardous condition.
- Statute language lacks a statutory definition of malicious and ambiguity arises; legislature amended 1983 version to include “malicious, but not mere negligent” and require actual knowledge of danger.
- Arkansas Supreme Court holds that malicious includes conduct in reckless disregard of consequences from which malice may be inferred; strict construction applied due to derogation of common law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ‘malicious’ in ARUS 18‑11‑307(1) include reckless disregard? | Roeder argues broadly that malice can be inferred from reckless disregard. | United States argues malicious means actual malice or intent to harm. | Yes; malicious includes reckless disregard. |
Key Cases Cited
- Carlton v. Cleburne County, 93 F.3d 505 (8th Cir. 1996) (persuasive on inferred malice under ARUS)
- Chicago, Rock Island & Pac. Ry. Co. v. Whitten, 190 Ark. 462 (Ark. 1909) (negligence alone not sufficient; requires malice or its equivalent)
- St. Louis, Iron Mountain & S. Ry. Co. v. Dysart, 89 Ark. 261 (Ark. 1909) (added element of intentional wrong or conscious indifference)
- Stein v. Lukas, 308 Ark. 74 (Ark. 1992) (malice may be inferred from conscious indifference or reckless disregard)