ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

REBECCA CHAMBERS

APPELLANT

V.

GERALD DAVENPORT and LINDA DAVENPORT

APPELLEES

CA02-993

September 10, 2003

APPEAL FROM THE MARION COUNTY CIRCUIT COURT

HON. CHRISTOPHER CARTER, JUDGE

CIV. 2001-70-4

REVERSED AND REMANDED

Larry D. Vaught, Judge

This is an appeal from an order granting appellees Gerald and Linda Davenport's motion for summary judgment on plaintiff Rebecca Chambers's negligence claim. Appellant contends that there are material issues of fact to be resolved. We agree, and reverse and remand for trial.

In April 1999, appellant was driving to work at 6:00 a.m. when she struck a horse standing in the middle of the highway. As a result of the accident, appellant sustained a shoulder injury requiring surgery and her vehicle was damaged. Her medical bills exceeded $13,000. It was undisputed that the horse belonged to appellees.

Appellant filed a complaint against appellees, alleging that their negligence in allowing the horse to escape was the proximate cause of her personal injuries and damage to her property. Specifically, she alleged that the appellees negligently maintained their fences in a manner that allowed their horse to repeatedly escape onto the highway. Appellees filed a motion for summary judgment on April 9, 2002, alleging that no material issues of fact remained and that they were entitled to summary judgment. In support of their motion, they attached the following: deposition testimony of appellant indicating that the appellees maintained their fences and gates in good repair; their own deposition testimony, stating that they did not knowingly permit any disrepair to their fence or gate, nor did they knowingly permit their livestock to run at large; appellant's deposition testimony and Gerald Davenport's testimony that the horse involved in the accident did not escape the fenced area more than once prior to the incident. Appellees argued that there was no evidence to support that they knowingly allowed their horse to run at large or that they maintained their fence in such a condition to allow the horse to run at large.

Appellant, in response to the motion, amended her complaint to further allege that the appellees' gate posts were rotten and that appellees would have noticed the condition of the fence posts had they exercised reasonable care in inspecting the gate area. Appellant also added that the appellees had notice that their horse had escaped on previous occasions, because appellant had so informed them, and that Mrs. Davenport admitted that the horse had frequently escaped. In addition to the amended complaint, appellant filed a similar response to the motion for summary judgment, attaching her affidavit and the affidavit of her boyfriend, William Davis. She stated in her affidavit that after the April 1999 accident, she walked with Mr. Davenport to the area of the downed gate and noticed that the post holding the gate was obviously rotten. Mr. Davis stated that he arrived at the scene of the accident and Mr. Davenport asked him to help get the horse in the stable. In doing this, Mr. Davis noticed the gate on the ground and saw that the post, which would have held up the fallen gate, was rotten. Both appellant and Mr. Davis concluded in their affidavits that had the post not been rotten, the gate would not have fallen and the horse would not have escaped.

On June 20, 2002, the trial court entered an order granting appellees' motion for summary judgment. The court's decision was based on the following:

5. Plaintiff Rebecca Chambers on page 30 of her deposition indicates she drove by the Davenport fence every day and generally fourteen to twenty times a week and never noticed a problem with the fence. She did, however, state on page 44 of her deposition that the fence looked old and weathered. On page 62 of her deposition she testified under oath that she has never talked with anyone who has knowledge or purports to have knowledge about the condition of the fence. On pages 67-68 of her deposition she testified she would drive by the defendant's property fourteen times a week or so and never saw any of their horses or stock out. She never saw a fence or gate down. Then on April 16, 2002 after the motion for summary judgment was filed the plaintiff and her boyfriend each signed affidavits that indicated the fencepost was rotten and this was something "anyone could see." This completely contradicts her testimony at page 30 line 25 and page 31 lines 1 and 2 of her deposition in which she saw no problem with the fence. In addition in the deposition given April 5, 2002 at pages 44-45 she testified she was not saying it was a rotten fencepost and at page 62 she indicated she had no photos of the fence. Based on the plaintiff's testimony alone the Court cannot find any negligence on behalf of the defendants with regard to the condition of the fence.

6. The next issue is whether the horse had a habit of escaping from the fence and the only testimony the plaintiff has is a statement, contradicted by Ms. Davenport, that Ms. Davenport indicated the horse was always getting out. The plaintiff has yet to produce a witness to this fact and even her own testimony contradicts this statement. The plaintiff is wholly without evidence to submit the only other theory of recovery to a trier of fact and therefore summary judgment shall be granted....

Our standard of review in summary judgment cases is well settled. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Pollard v. Union Pac. R. Co., 75 Ark. App. 75, 54 S.W.3d 559 (2001). Once the moving party has established a primafacie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines 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. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

In a negligence action, the plaintiff has the burden of proving that she sustained damages, that the defendants were negligent, and that the negligence was the cause of her damages. Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993). Negligence is the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Id. The owner of livestock is liable when damage results from his intentionally or negligently permitting animals to run at large. Smith v. R.A. Brooks Trucking Co., 280 Ark. 510, 660 S.W.2d 1 (1983). The fact that an animal is at large is not prima facie negligence on the part of the owner. Cosby v. Oliver, 265 Ark. 156, 577 S.W.2d 399 (1979).

We must decide if questions of fact remain as to whether appellees intentionally or negligently allowed their horse to run at large or negligently maintained their fence. Reviewing the evidence in the light most favorable to appellant, we hold that fact issues remain to be litigated on both points.

First, there is a question of fact as to whether appellees had knowledge that their horse escaped on previous occasions. Appellant testified in her deposition that she had seen appellees' horse on the highway about a year prior to the accident and informed them of this. She also stated that when she was at the appellees' house after the accident, Mrs. Davenport stated, "that horse has always gotten out," although she recalled that Mr. Davenport stated that "the horse had never been out." Mrs. Davenport denied making the statement, but testified that she only knew of the horse getting out once, six years before. The trial court recognized the conflict in the testimony, but resolved it in favor of appellees in granting summary judgment. ··²SearchTerm²····²SearchTerm²··Summary judgment is not proper where it is necessary to weigh the credibility of statements to resolve an issue. See Adams v. Wolf, 73 Ark. App. 347, 43 S.W.3d 757 (2001).

Second, there is a question of fact as to whether appellees negligently maintained their fence allowing their horse to escape. The trial court found that there was no fact issue on this point because appellant testified in her deposition that she drove by the fence every day, fourteen to twenty times per week, and never noticed a problem with the fence, saw their horses or livestock out, or noticed a fence or gate down. The court further took issue with appellant's affidavit attached in response to appellees' motion for summary judgment, which indicated that the fence post was rotten, but conflicted with her previous deposition.

While appellant's affidavit seems to contradict her deposition testimony, Mr. Davis, who was not deposed, also indicated in his affidavit that the fence post was rotten. Appellant did testify in her deposition that the post looked old and weathered and that the gate was down on the ground. Mr. Davis also stated in his affidavit that the gate was on the ground. Mr. Davenport, on the other hand, testified in his deposition that the gate was leaning after the accident and that the same fence post was used in repairing the gate. However, he indicated that the fence post was "broken," elaborating that the post had been sharpened and that the point was broken off. When repairing the gate the same day as the accident, he used his auger to dig a hole to place the post deeper. Based on the evidence presented on summary judgment, we conclude that fact issues remain regarding the condition of the fence and whether the appellees negligently maintained the fence.

Reversed and remanded.

Stroud, C.J., and Bird, J., agree.