ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

RANDAL MOSELEY, SR.

APPELLANT

V.

PARADISE LANDING & FISHING

VILLAGE and M. S. BURGESS

APPELLEES

CA 03-807

DECEMBER 17, 2003

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT

[NO. CV-2001-389]

HONORABLE CHARLES EDWARD

CLAWSON, JR., JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Randal Moseley appeals the entry of summary judgment in favor of appellees Paradise Landing & Fishing Village (Paradise) and the sole owner, Mr. M.S. Burgess. Appellant filed an action in the Faulkner County Circuit Court alleging negligence on the part of Paradise and Burgess after Moseley stepped out of his boat at a Lake Conway landing and into a rut left in the gravel ramp. Moseley broke his ankle and eventually had to have his leg amputated below the knee. Moseley claimed that the defendants were negligent by failing to maintain the gravel area and allowing deep tire ruts to remain in the gravel as a danger to invitees.

Before addressing appellant's arguments, we examine more fully the undisputed facts. Moseley was a longtime member of Paradise, located in Mayflower, Arkansas, on and around Lake Conway. Membership permitted Moseley access to Paradise's landing area. Moseley fished on Lake Conway many times a year dating back to 1978, and he lived in Mayflower. Mr. Burgess purchased Paradise in 1993, acting as the sole owner and operator. It was alleged that Mr. Burgess did nothing to maintain the graveled launch area since his purchase, but there is no testimony in the record to support that assertion1.

Moseley testified in his deposition that he was aware that Lake Conway was to be drawn down in September 1998, which is why he went to move his boat. On the afternoon of August 31, 1998, which was a sunny day, Moseley drove his boat across the lake toward the landing at issue. Moseley's friend was waiting with a truck and trailer, and Moseley positioned the boat on the trailer. Moseley then exited the boat at the front and stepped onto the ground into a rut. He said that he did not see the rut before he stepped into it, but "there was just a rut there; a lot of ruts were there." He confirmed that he knew there were ruts in the ramp and to the side of the ramp of depths he guessed to be four, six, or eight inches. Moseley said that he remembered that in the past a friend of his had leveled the landing with a tractor, but "over a period of time it would rut out again." Moseley admitted that he had used boat ramps in the area for many years, including this particular one. Moseley stated that he had seen ruts in the ramps, and he opined that some were made by the water draining from the boats and some of varying depth by the vehicles and trailers used to pull the boats out. Moseley explained that ruts in gravel ramps were unavoidable.

Appellees moved for summary judgment attaching several pages of appellant's deposition testimony, basically asserting that appellant was a licensee, but that even if he were an invitee on the premises, no duty was breached because the ruts were well known to appellant and obvious. Appellant responded with a brief but no supporting affidavits or testimony. Appellant argued in the brief that he must be considered an invitee, that appellees owed a duty to maintain the premises in a reasonably safe condition, and that they failed to do so or to warn of the increased hazard caused by frequent use of the landing just prior to the lake's draining. A hearing was conducted, after which the Faulkner County Circuit Court trial judge entered judgment in appellees' favor.

In the summary-judgment order, the circuit judge found Moseley to be an invitee on the premises with the commensurate duty of care on the landowner, that the condition of the boat-landing ramp was obvious to any person who looked down, that Moseley had fished there for many years and was aware of ruts, that he stepped into the rut during the daylight hours, that there was no duty to warn invitees of obvious danger, and that appellees were entitled to judgment as a matter of law. Appellant filed a timely notice of appeal. Appellant argues on appeal that the circuit judge erred in entering summary judgment when there remained genuine issues of material fact, and erred in applying the wrong law to the circumstances.

In reviewing a summary-judgment case, we need only decide if the trial court's grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Aka v. Jefferson Hosp. Assoc., 344 Ark. 627, 42 S.W.3d 508 (2001). The purpose of summary judgment is not to try the issues but to determine whether there are any issues to be tried. See, e.g., Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). We have ceased referring to summary judgment as a drastic remedy. Flentje v. First Nat'l Bank of Wynne, supra. We now regard it simply as one of the tools in a trial court's efficiency arsenal. Id.

The moving party always bears the burden of sustaining a motion for summary judgment. Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996). All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Id. However, the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2000); Robert D. Holloway, Inc. v. Pine Ridge Add'n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Mount Olive Water Ass'n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). The response and supporting material must set forth specific facts showing that there is a genuine issue for trial. Id.; see also Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). The adverse party may not rest upon mere allegations or denials of the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994); Lubin v. Crittenden Hosp. Assn., 295 Ark. 429, 748 S.W.2d 663 (1988). A party opposing a motion for summary judgment must be diligent in countering the motion, and mere general allegations that do not reveal detailed and precise facts will not prevent the award of summary judgment. BWH, Inc. v. Metropolitan Nat'l Bank, 267 Ark. 182, 590 S.W.2d 247 (1979).

The law in this area is summarized in Van Deveer v. RTJ, Inc., 81 Ark. App. 379, 101 S.W.3d 881 (2003). A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:

(c) fails to exercise reasonable care to protect them against the danger.

Id. (citing to Restatement (Second) of Torts, § 343 (1965)). The basis for a premises owner's liability under this rule is the superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Jenkins v. Hestand's Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995).

Appellant Moseley argues that the trial court erroneously failed to apply the above-stated standard and instead applied the standard of law applicable in the typical slip-and-fall case. While we agree that this case does not fit into the typical slip-and-fall category, we disagree that this is the analysis applied by the trial court. In order to prevail in a typical slip-and-fall case involving an invitee, the plaintiff must show either (1) that the presence of a substance upon the premises was the result of the defendant's negligence, or (2) that the substance had been on the premises for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Kopriva v. Burnett-Croom-Lincoln-Paden, 70 Ark. App. 131, 15 S.W.3d 361 (2000). However, where the slippery condition is not the result of an isolated incident but is instead a recurring one, the traditional slip-and-fall analysis is inapplicable, and the question is simply whether the business owner used ordinary care to keep his premises free from dangerous conditions likely to cause injury to invitees. Conagra, Inc. v. Strother, 68 Ark. App. 120, 5 S.W.3d 69 (1999); see also Heigel v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). The trial court focused its analysis on the ordinary care required for invitees. It found that Moseley was an invitee, he was owed this ordinary care, and the rut was an open and obvious danger that the invitee could have avoided with reasonable care and for which there was no duty to warn, citing to Jenkins v. Heston Grocery Store, Inc., supra.

Arkansas cases have recognized the general duty that a premises owner owes to an invitee and the exception to this duty where the dangerous condition is either known or obvious to the invitee. See, e.g., Jenkins v. Hestand's Grocery, supra; Jenkins v. Int'l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Carton v. Missouri Pac. R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990); Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974); Ramsey v. American Auto. Ins. Co., 234 Ark. 1031, 356 S.W.2d 236 (1962). Section 343A of the Restatement, which discusses known or obvious dangers, defines "known" as "not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves." "Thus the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated." Id.

There is no other conclusion to be drawn in this case except that this alleged danger was obvious and that Moseley, by the use of reasonable care of looking prior to stepping, could have avoided the danger. "[T]here is no liability by the occupier or possessor of the premises for injuries from dangers that are obvious, or as well known to the plaintiff injured as to the occupier or possessor of the premises." Jenkins, supra at 488.

Appellant expands on is argument to the trial court by arguing on appeal that even if the danger was obvious, this did not remove the landowner's duty where appellant was forced to confront the danger, and there was a fact question as to that issue. This theory rests on the Restatement (Second) of Torts § 343A and is incorporated into the Arkansas Jury Instruction 1104. If the landowner should reasonably anticipate that the invitee will be exposed to the danger despite his knowledge of it, or its obvious nature, then the duty owed by the owner is not abrogated. AMI 1104; Restatement (Second) of Torts § 343A. Section343A lists examples of situations where the landowner should reasonably anticipate that harm to an invitee may arise, notwithstanding the known or obvious danger of the condition. However, this exception to the "open and obvious danger" rule has been applied in Arkansas in only one situation, where the invitee is forced, as a practical matter, to encounter the danger in order to perform his job. See Jenkins v. International Paper Co., supra; Carton v. Missouri Pac. R.R. Co., supra. Although we need not decide whether the present case presents a fact question as to whether it fits this narrow exception because the argument is made for the first time on appeal, see, e.g., Cole v. Laws, 349 Ark. 177, 76 S.W.3d 787 (2002), we note that Moseley was not forced to use appellees' ramp inasmuch as he acknowledged that other launching sites existed around the lake and that he had used them.

Based upon the arguments and undisputed facts presented to the trial court for resolution, reasonable minds could reach no other conclusion. Summary judgment was appropriate.

Affirmed.

Vaught and Crabtree, JJ., agree.

1 Moseley's counsel made reference to excerpts from a deposition taken of Mr. Burgess in the brief in resistance to the motion for summary judgment. However, no affidavits or testimony was appended to the brief, and none of the Burgess deposition appears in the record. The trial judge could not consider the assertions of counsel as proof, and neither do we.