Tracey Hollingsworth v. Lonely Creek Kennels

Cite as 2024 Ark. App. 406
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-23-415

Opinion Delivered September 4, 2024
TRACEY HOLLINGSWORTH
APPEAL FROM THE MADISON
APPELLANT COUNTY CIRCUIT COURT
[NO. 44CV-21-1]
V.
HONORABLE JOHN C. THREET,
LONELY CREEK KENNELS, TIMOTHY JUDGE
C. WORLEY, SONYA K. WORLEY,
JEANNA CARRILHO, AND JOHN DOES AFFIRMED
I–X

APPELLEES

STEPHANIE POTTER BARRETT, Judge

Appellant Tracey Hollingsworth appeals the summary judgment granted by the

Madison County Circuit Court in favor of appellees Sonya Worley, Tim Worley, and Lonely

Creek Kennels. We affirm.

Appellants Sonya Worley and Tim Worley d/b/a Lonely Creek Kennels own a dog-

breeding business specializing in bull mastiffs. Hollingsworth began working for the Worleys in

November 2018, and from the time her employment began until March 2019, Hollingsworth

did not have any issues with the dogs—including a bull mastiff named Ransom—on the Worleys’

property. In early to mid-February 2019, Jeanna Carrilho boarded her dog, Ransom, at the

Worleys’ kennel. Jeanna told the Worleys that she needed to board Ransom at Lonely Creek

Kennels because (1) she and Ransom were living with her friend when Jeanna relocated for her

job, and Ransom continued to live with Jeanna’s friend until Jeanna found a house; (2) Jeanna
purchased a house infested with bats, and it was unsafe for Ransom to live there, so Ransom

continued to live with her friend; (3) Jeanna’s friend passed away in December 2018, and the

apartment Jeanna rented after moving out of her bat-infested house was not suitable for Ransom;

and, as a result, (4) Jeanna asked the Worleys to board Ransom while she sought a suitable place

to live and recovered from a surgery that was scheduled for January 2019. Jeanna further

informed the Worleys that Ransom was a kind and gentle dog. The Worleys had no basis to

refute these facts and did not dispute Jeanna’s statement that “there was no reason for anyone,

including the Worleys, to know that Ransom would act violently or that Ransom may act

violently or attack anyone” or that “Ransom was other than a kind, loving, non-violent dog.”

On March 19, 2019, Ransom attacked Hollingsworth while she was in Ransom’s kennel.

At that time, Ransom had been on the Worleys’ property for approximately a month and a half

with no issues. According to Hollingsworth, neither she nor the Worleys were aware that

Ransom had any behavioral issues, and Hollingsworth acknowledged that the simple fact that

Ransom is a bull mastiff did not make him dangerous. After the attack, Sonya Worley was

notified by Jeanna that Ransom had snapped at her twice. Hollingsworth argues that the

Worleys should be held responsible because they did not specifically ask Jeanna whether Ransom

had ever bitten anyone.

The material facts of the case are undisputed, and the issue is one of law. Hollingsworth

asks the court to deny the motion for summary judgment because she was a business invitee,

and the Worleys should have made reasonable efforts to determine if Ransom had a bite history.

Rule 56 of the Arkansas Rules of Civil Procedure governs disposition of summary-

judgment cases. The object of summary-judgment proceedings is not to try the issues but to

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determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion

should be denied. Ark. R. Civ. P. 56; Rowland v. Gastroenterology Assocs., P.A., 280 Ark. 278, 657

S.W.2d 536 (1983). Therefore, the first consideration in a motion for summary judgment is

whether the moving party established a prima facie showing that he or she was entitled to

summary judgment. The standard of review for summary judgment has often been stated as

follows: “In these cases, we need only decide if the granting of summary judgment was

appropriate based on whether the evidentiary items presented by the moving party in support of

the motion left a material question of fact unanswered.” Mashburn v. Meeker Sharkey Fin. Grp.

Inc., 339 Ark. 411, 414, 5 S.W.3d 469, 471 (1999) (citing Nixon v. H&C Elec. Co., 307 Ark. 154,

818 S.W.2d 251 (1991)). The burden of sustaining a motion for summary judgment is always

the responsibility of the moving party. Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781

S.W.2d 31 (1989). All proof submitted must be viewed in the light most favorable to the party

resisting the motion, and any doubts and inferences must be resolved against the moving party.

Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles

E. Davis & Assocs., Inc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark.

77, 805 S.W.2d 636 (1991).

It is further well settled that once the moving party establishes a prima facie entitlement

to summary judgment by affidavits or other supporting documents or depositions, the opposing

party must meet proof with proof and demonstrate the existence of a material issue of fact. See

Ford Motor Credit Co. v. Twin City Bank, 320 Ark. 231, 895 S.W.2d 545 (1995); Wyatt v. St. Paul

Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). We recognize a “shifting burden”

in summary-judgment motions in that, while the moving party has the burden of proving that it

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is entitled to summary judgment, once it has done so, the burden then shifts to the nonmoving

party to show that material questions of fact remain. See Ford v. St. Paul Fire & Marine Ins. Co.,

339 Ark. 434, 5 S.W.3d 460 (1999). When the movant makes a prima facie showing of

entitlement to summary judgment, the respondent must discard the shielding cloak of formal

allegations and meet proof with proof by showing a genuine issue as to a material fact. Hughes

W. World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980). Facts stated in an

affidavit must be admissible in evidence if they are to be relied on in granting or denying

summary judgment. Manley v. Zigras, 2024 Ark. App. 168, 686 S.W.3d 561; Dixie Ins. Co. v. Joe

Works Chevrolet, Inc., 298 Ark. 106, 766 S.W.2d 4 (1989).

In deciding issues of law, our standard of review is de novo. De novo review means that

the entire case is open for review. A circuit court’s conclusion on a question of law is reviewed

de novo and is given no deference on appeal. First Nat’l Bank of Izard Cnty. v. Old Republic Nat’l

Title Ins. Co., 2022 Ark. App. 440, 655 S.W.3d 108. However, the question of whether a duty

is owed is always a question of law and never one of fact for the jury. Bartley v. Sweetser, 319 Ark.

117, 890 S.W.2d 250 (1994); see also Bryant v. Putnam, 322 Ark. 284, 908 S.W.2d 338; 65th

Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992).

Hollingsworth argues that as an independent contractor, she was a business invitee of

the Worleys. She argues that because she was a business invitee, the Worleys had a duty to

maintain the premises in a reasonably safe condition, including the duty to protect from dangers

that might have been discovered if they had used reasonable care. The duty owed to invitees is

much broader and the basis for a property owner’s liability is the superior knowledge of an

unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or

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should not know. See AutoZone v. Horton, 87 Ark. App. 349, 192 S.W.3d 291 (2004); see also

Restatement (Second) of Torts § 343A(1) (1965). It is undisputed that Hollingsworth was a

business invitee because she was an independent contractor hired to clean the dog kennels and

to feed and water the dogs. It would have been clear to Hollingsworth that bull mastiffs are large

dogs, and she admitted the breed does not have a reputation as being violent. As the court

explained in Hope Medical Park Hospital v. Varner, 2019 Ark. App. 82, at 5–6, 568 S.W.3d 818,

822 (citations omitted):

A property owner has a duty to exercise ordinary care to maintain his or her premises in
a reasonably safe condition for the benefit of his or her invitees. The property owner is
liable if he or she has superior knowledge of an unreasonable risk of harm of which the
invitee, in the exercise of ordinary care, does not or should not know.
In Arkansas, a landowner generally does not owe a duty to a business invitee if a danger

is known or obvious. The duty to warn an invitee of a dangerous condition applies only to

defects or conditions that are in the nature of hidden dangers, traps, snares, pitfalls, and the like

in that they are known to the inviter but not known to the invitee and would not be observed

by the latter in the exercise of ordinary care. There is no duty to guard against merely possible,

as opposed to probable, harm. In Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994),

the court recognized that dogs belong to a class of animals that is unlikely to cause injury.

Here, the affidavits presented by the Worleys in support of their motion for summary

judgment do not leave a material question of fact unanswered, see Reynolds v. Shelter Mut. Ins.

Co., 313 Ark. 145, 852 S.W.2d 799 (1993), nor do Hollingsworth’s affidavits present a genuine

issue as to any material fact. See Wyatt, supra. In fact, none of the affidavits filed by either party

put into dispute any of the facts alleged by the other. Instead, the parties agreed that the Worleys

did not know that Ransom had violent tendencies. The parties agreed that the Worleys did not

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know Ransom had snapped at Jeanna in the past until two or three weeks after Hollingsworth

had been bitten. Ransom had been at the Worleys’ kennel for a month and a half prior to the

bite with no reason for the Worleys or Hollingsworth to suspect the dog had violent tendencies.

Ransom was in its kennel when Hollingsworth was attacked as she was carrying out her duties.

There was no dispute that Jeanna told the Worleys that Ransom was a kind, loving pet who was

good with children and was nonviolent, even with other dogs. Hollingsworth’s sole allegation

was that the Worleys should have specifically asked Jeanna whether Ransom had ever bitten

anyone. There is no case law that would support such a requirement. A reasonable effort was

made by the Worleys to determine why Jeanna wanted to board Ransom at Lonely Creek

Kennels and if there were any issues with the dog.

Affirmed.

HARRISON, C.J., and ABRAMSON, J., agree.

Daniels Law Firm, PLLC, by: Willliam Haslam, for appellant.

Taylor Law Partners, LLP, by: Andrew Myers, for appellees.

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