Theresa ROEDER, as the Administratrix of the Estate of Esther Kay Roeder, Deceased, and on Behalf of the Wrongful Death Beneficiaries of Esther Kay Roeder; Tara Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder, and on Behalf of the Wrongful Death Beneficiaries of Bruce Wayne Roeder; and Tara Roeder, as the Administratrix of the Estate of Deborah Busby Roeder, and on Behalf of the Wrongful Death Beneficiaries of Deborah Busby Roeder, Petitioners v. UNITED STATES of America; James S. Watson, in his Individual and Official Capacity; Gloria Maples Chrismer, in her Individual and Official Capacity; Normal L. Wagoner, in his Individual and Official Capacity; James B. Kozik, in his individual and Official Capacity; and John Does 1-5, in their Individual and Official Capacity, Respondents.
No. CV-13-955.
Supreme Court of Arkansas.
April 10, 2014.
2014 Ark. 156
Abernathy, 2012 Ark. 59, 386 S.W.3d 477. Here, appellant‘s arguments are limited to conclusory allegations, and he fails to provide any facts to support his claims. He does not describe any convincing defense that counsel could have presented, show how further investigation would have been fruitful, or state how the defense suffered from any lack of communication.
Order affirmed; motion moot.
Conner Eldridge and Deborah Fennel Groom, U.S. Attorney‘s Office; and Stuart F. Delery, Mark B. Stern, and Daniel J. Lenerz, U.S. Department of Justice, for respondents.
Richard Mays Law Firm, PLLC, by: Richard H. Mays, for amicus curiae Aaron Sultz, as Special Administrator of the Estate of Eric Wayne Sultz, deceased, and on Behalf of the Statutory Wrongful Death Beneficiaries of Eric Wayne Sultz.
Ayres, Warren, Shelton & Williams, LLC, by: Lee H. Ayres and Jason W. Poe, for amici curiae Candice Smith et al. and Kerri Basinger et al.
JIM HANNAH, Chief Justice.
This case involves a question of law certified to this court by the United States District Court for the Western District of Arkansas, Hot Springs Division, in accordance with Arkansas Supreme Court Rule 6-8 (2013) and accepted by this court on November 7, 2013. See Roeder v. United States, 2013 Ark. 451, 430 S.W.3d 667. The certified question is:
Whether “malicious” conduct, under
Arkansas Code Annotated section 18-11-307(1) (Repl.2003), includes conduct in reckless disregard of the consequences from which malice may be inferred.
We answer in the affirmative.
The following facts were provided in the federal district court‘s certification order. This is one of eleven similar cases filed in federal district court1 arising from the deaths of campers who died in a tragic flood incident in June 2010 at the Albert Pike Recreation Area (“APRA“).2 Some of these campers were camping in Loop D, which is a section of the APRA designated for RV use. Others were camping upstream from Loop D, along Road 512 in the Ouachita National Forest. In the early morning hours of June 11, 2010, heavy rainfall in Montgomery County caused a rapid rise in the Little Missouri River and its tributaries. A flash flood occurred when the river overran its banks into Loop D and the surrounding areas of the APRA. According to the United States Geological Service, the Little Missouri River rose
Plaintiffs, Theresa Roeder, as the Administratrix of the Estate of Esther Kay Roeder, deceased, and on behalf of the wrongful death beneficiaries of Esther Kay Roeder; Tara Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder, and on behalf of the wrongful death beneficiaries of Bruce Wayne Roeder; and Tara Roeder, as the Administratrix of the Estate of Deborah Busby Roeder, and on behalf of the wrongful death beneficiaries of Deborah Busby Roeder (collectively referred to as “Roeder“), filed suit in federal district court against defendants, the United States of America; James S. Watson, in his individual and official capacity; Gloria Maples Chrismer, in her individual and official capacity; Norman L. Wagoner, in his individual and official capacity; James B. Kozik, in his individual and official capacity; and John Does 1-5, in their individual and official capacity (collectively referred to as the “United States” or the “government“), pursuant to the Federal Tort Claims Act (“FTCA“),
The meaning of “malicious” as used in the ARUS is at issue. Roeder contended that malicious conduct includes conduct committed in reckless disregard of the consequences, from which malice may be inferred. The United States contended that malicious conduct is limited to situations involving actual malice or a desire to harm another. Concluding that there was no controlling precedent interpreting the meaning of “malicious,” as it is used in the ARUS, the federal district court certified to this court the question of whether “malicious” conduct, under
The certified question presents an issue of statutory construction. The cardinal rule of statutory construction is to effectuate the legislative will. E.g., Woodrome v. Daniels, 2010 Ark. 244, at 8, 370 S.W.3d 190, 194. Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id., 370 S.W.3d at 194. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id., 370 S.W.3d at 194. We
The word “malicious” is not defined in the ARUS. “Malicious,” as defined by Webster‘s Third New International Dictionary 1367 (3d ed.2002), means “given to, marked by, or arising from malice.” Black‘s Law Dictionary defines “malice” as “[t]he intent, without justification or excuse, to commit a wrongful act,” the “reckless disregard of the law or of a person‘s legal rights,” and “[i]ll will; wickedness of heart.” Black‘s Law Dictionary 1042 (9th ed.2009). Thus, according to Black‘s, “malicious” conduct could include, as Roeder contends, conduct in reckless disregard of the consequences from which malice may be inferred, or, as the United States contends, “malicious” conduct could be limited to situations involving “actual malice” or a desire to harm another. Given that “malicious” is open to more than one construction, we conclude that
The ARUS was first enacted in 1965 “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Act of Feb. 12, 1965, No. 51, § 1, 1965 Ark. Acts 165, 166 (originally codified at Ark. Stat. Ann. §§ 50-1101 to -1106). To achieve this purpose, the Act limited the liability of landowners in two ways. First, the Act established that, except as specifically recognized or provided,
an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
Act of Feb. 12, 1965, No. 51, § 3, 1965 Ark. Acts 165, 166; currently codified at
an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
(a) Extend any assurance that the premises are safe for any purpose.
(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.
Act of Feb. 12, 1965, No. 51, § 4, 1965 Ark. Acts 165, 167.4
Nothing in this Act limits in any way liability which otherwise exists: (a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.
Act of Feb. 12, 1965, No. 51, § 6, 1965 Ark. Acts 165, 167 (emphasis added).
Then, in 1983, the General Assembly amended that exception, so that it now reads:
Nothing in this Act limits in any way liability which otherwise [exists]: (a) for malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use or activity actually known to such owner to be dangerous.
An Act to Amend Various Sections of Act 51 of 1965 [Ark. Stat. Ann. §§ ] 50-1101 et seq.] to Clarify the Limitation on the Liability of Landowners for Allowing Persons to Use their Land; and for Other Purposes, Act of Feb. 14, 1983, No. 168, § 6, 1983 Ark. Acts 225, 227 (emphasis added); currently codified at
The United States contends that the legislative history of the ARUS demonstrates that the General Assembly intended for malicious conduct to be limited to situations involving actual malice or a desire to harm another. In support of its argument, the government cites Mandel v. United States, 545 F. Supp. 907 (W.D. Ark. 1982), in which the United States District Court for the Western District of Arkansas construed the 1966 version of the ARUS. In that case, the plaintiff, Michael Mandel, sought a safe place to swim in the Buffalo National River, and a park ranger recommended an area known as Kyle‘s Landing. While swimming there, Mandel struck a submerged rock and broke his neck. Mandel brought an action against the National Park Service, the Boy Scouts of America, and the Insurance Company of North America, alleging that “employees of the National Park Service and the Boy Scouts of America knew that persons would use the facility with their permission, and failed to adequately warn divers of the presence of submerged rocks, and failed to properly mark or otherwise delineate safe diving areas.” Id. at 909. The defendants argued that they were immune from liability pursuant to the ARUS because the evidence did not establish a willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity on their part.
The federal district court noted that it was “unaware of any Arkansas cases” interpreting the “willful or malicious” language in the ARUS, but explained that “the Arkansas courts have many times defined ‘willful and wanton conduct.‘” Id. at 912. Because the court could “think of no
As previously noted, the Mandel court construed the 1965 version of the ARUS, which provided no immunity from liability for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. The United States contends that the 1983 amendment, which, inter alia, removed the term “willful,” was enacted in response to Mandel. The United States also contends that “willfulness” and “inferred malice” are synonymous under Arkansas law. Accordingly, the United States asserts that, because the legislature eliminated liability for a “willful ... failure to guard or warn” as part of the 1983 amendment, then the legislature must have similarly eliminated liability for situations involving “inferred malice.”
The government‘s argument would be more persuasive if, with respect to the duty of care, the General Assembly had changed the statute only by eliminating the words “willful or” before “malicious.” But it did not. Rather, the General Assembly eliminated “willful or” before “malicious” and then added “but not mere negligent” after the term “malicious.” Thus, we cannot read the term “malicious” in isolation; instead, we must construe it in the context of how it is used in the statute. This court has not construed the phrase “malicious, but not mere negligent,” in the ARUS. But for many years, this court has referred to negligent conduct to explain situations in which when malice may be inferred. For example, we have discussed the distinction between malicious conduct and other types of conduct in the context of punitive damages, noting that negligence alone will not support an award of exemplary damages; rather, there must be conduct from which malice may be inferred. See, e.g., Stein v. Lukas, 308 Ark. 74, 78, 823 S.W.2d 832, 834 (1992) (stating that “malice can be inferred either from a conscious indifference to the consequences of one‘s actions or from a reckless disregard of those same consequences“); Chicago, Rock Island & Pac. Ry. Co. v. Whitten, 90 Ark. 462, 468, 119 S.W. 835, 837 (1909) (noting that “[m]ere negligence, indifference or careless disregard of the rights of others is not sufficient upon which to base a recovery for exemplary damages” and that “[t]he acts must be such as to evince malice“); St. Louis, Iron Mountain & S. Ry. Co. v. Dysart, 89 Ark. 261, 268, 116 S.W. 224, 226 (1909) (stating that “[n]egligence alone, however gross, is not sufficient, and that there must be an added element of intentional wrong, or, what is its equivalent, conscious indifference in the face of discovered peril, from which malice may be inferred“). We conclude that “but not mere negligent” functions as an explanatory phrase in the ARUS and that the legislature used those words to clarify what type of malice must be shown to preclude immunity from liability.
Moreover, as Roeder points out, if the legislature‘s intent was to require that only “actual malice” could preclude immunity under the ARUS, then it could have expressly done so, as it has done in other statutes when the intent to harm is re-
quired
Finally, there is another reason why, in the absence of explicit direction from the General Assembly, this court should construe the words “malicious, but not mere negligent” to include conduct in reckless disregard of the consequences from which malice may be inferred. Immunity under the ARUS is in derogation of the common law,6 and any statute in derogation of the common law will be strictly construed. E.g., Thompson v. Bank of Am., 356 Ark. 576, 584, 157 S.W.3d 174, 179 (2004).7 Strict construc-
tion
Since the recreational use statute is in derogation of common law rules of tort liability, we take care to avoid an overbroad interpretation of the statute that would afford immunity that was not intended. Consequently, exceptions to the statute ... must be given the broadest reading that is within the fair intendment of the language used.
Ducey v. United States, 713 F.2d 504, 510 (9th Cir. 1983) (emphasis in original).
We agree with the reasoning of the Ducey court. In the instant case, if we give the malicious-but-not-mere-negligent exception to immunity the broadest reading that is within the fair intendment of the language used, then we must conclude that “malicious” conduct, under
Certified question answered.
***
Robert DICKINSON, and Pamela Dickinson, on Behalf of Themselves and All Residents of Arkansas that are Similarly Situated, Petitioners v. SUN TRUST MORTGAGE, INC., and Federal National Mortgage Association, Respondents.
No. cv-14-173.
Supreme Court of Arkansas.
April 10, 2014.
2014 Ark. 161
PER CURIAM.
In accordance with section 2(D)(3) of amendment 80 to the Arkansas Constitution and Rule 6-8 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, the Honorable Brian S. Miller of the United States District Court for the Eastern District of Arkansas filed a motion and certification order with our clerk on March 11, 2014. The certifying court requests that we answer a question of law that may be determinative of a