Anna Sherrill v. Rika Properties, LLC

Cite as 2020 Ark. App. 420
Reason: I attest to the
accuracy and integrity of this
document
ARKANSAS COURT OF APPEALS
Date: 2021-07-12 12:08:02 DIVISIONS IV & I
Foxit PhantomPDF Version: No. CV-19-737
9.7.5

ANNA SHERRILL Opinion Delivered: September 23, 2020

APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. 26CV-18-1273]
RIKA PROPERTIES, LLC
APPELLEE HONORABLE LYNN WILLIAMS,
JUDGE

REVERSED AND REMANDED

BART F. VIRDEN, Judge

Anna Sherrill appeals the Garland County Circuit Court decision to dismiss her claim

against Rika Properties, LLC (“Rika”). We reverse and remand.

I. Relevant Facts

On December 28, 2016, after lunch at the Brickhouse Grill located inside the

building owned by Rika, as Sherrill exited the building via the ramp located on the side of

the building, she fell and injured her shoulder. The ramp area has a roof, but it is open to

the elements. The day Sherrill fell and injured her shoulder the weather was misty, and it

had rained the day before. Sherrill stated that she had visited the Brickhouse Grill many

times over the past two decades and had never fallen on the ramp or noticed any dangerous

condition of the ramp. Sherrill filed a complaint against the building owner for negligence,

alleging the following. On the day of the accident, Sherrill was an invitee, and Rika owed

a duty of ordinary care to protect her from known dangers or dangers that Rika, with
reasonable care, might discover. Sherrill was exercising ordinary caution and care (holding

on to the handrail and walking slowly) when she fell on the ramp, which was in a defective

and hazardous condition not apparent to her but known to Rika. Specifically, the ramp is

at an extreme slope, and the surface covering the ramp is made of smooth PVC material

that captures dirt, debris, and moisture and is not appropriate for ramps. This material caused

the ramp to be particularly slippery. Rika was aware of the ramp’s defective condition and

that the ramp was unfit for its intended purpose, and Rika was aware that the ramp had

caused many other people to fall before Sherrill’s injury. Rika did not exercise proper care

after learning of the ramp’s defects by failing to adequately warn of the unsafe condition,

cure the known defect, take steps to make the ramp safe by installing slip-resistant materials

on the surface, and adhere to any of the local, state, or federal codes regarding the ramp’s

safety.

Rika filed a motion for summary judgment, asserting that there were no issues of

material fact in dispute and that it was entitled to judgment as a matter of law. Rika argued

that there was no foreign substance on the ramp, the ramp is not defective, and that Sherrill

had traversed the ramp many times and was familiar with the ramp. Moreover, it was

obvious the ramp was wet from rain, and Sherrill had other routes to the parking lot available

to her.

In her response to Rika’s motion, Sherrill asserted that reasonable minds could form

differing opinions regarding the dangerous and defective condition of the ramp and whether

the dangerous condition of the ramp was open and obvious. Sherrill offered the opinion of

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a licensed professional engineer, Justin Hall, who performed a hazard study on the ramp and

concluded that the ramp was unreasonably dangerous due to the extreme slope and the

improper surface material covering it. Hall stated that the condition of the ramp violates

multiple local, state, and federal regulations, and the defects are not obvious to the untrained

eye. Hall opined that the smooth PVC material captures dirt, debris, and moisture and that

the surface is dangerous wet or dry.

Sherrill included the deposition testimony of the manager of the Brickhouse Grill

who stated that he personally witnessed at least twenty people fall on the defective ramp,

the ramp is the only place where people regularly fall, and he notified Rika of the falls. An

employee at another restaurant located in the building stated that she had seen at least four

people fall on the ramp and that she, too, had notified Rika of the falls.

Sherrill also clarified that she never claimed, as stated by Rika, that rain caused the

defective condition of the ramp—it had not rained that day, and damp conditions alone

were not the cause of her fall. Sherrill explained that the extreme slope of the ramp, the

surface material of the ramp, and the poor condition of the surface material caused her fall

and that these dangers were not open and obvious. She had never heard of anyone falling

on the ramp, she had no idea the ramp was dangerous before she fell, and there was no

visible indication that the ramp was defective. Moreover, Sherrill claimed that Richard

Karuhn, Rika’s owner, testified that it would be unreasonable to expect Sherrill to have

been aware of the ramp’s defects. The circuit court granted summary judgment, finding that

there are no issues of material fact in dispute. This appeal follows.

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II. Standard of Review and Applicable Law

In reviewing summary-judgment cases, our court need only decide if the circuit

court’s decision to grant summary judgment was appropriate based on whether the evidence

presented by the moving party left a material question of fact unanswered. Moses v.

Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003). The moving party always bears the burden

of sustaining a motion for summary judgment. Id. 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. 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. Id. 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. Id. However, if a moving party fails to offer proof on a controverted

issue, summary judgment is not appropriate, regardless of whether the nonmoving party

presents the court with any countervailing evidence. Id. We have further stated that

summary judgment should not be granted when reasonable minds could differ as to the

conclusions that can be drawn from the facts presented. Id. The standard is whether the

evidence is sufficient to raise a factual issue, not whether the evidence is sufficient to compel

a conclusion. Johnson v. De Kros, 2014 Ark. App. 254, 435 S.W.3d 19.

The duty of care that Rika owes to its invitees is stated as follows in Restatement

(Second) of Torts § 343 (Am. Law Inst. 1965):

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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

(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and

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

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. Van DeVeer v. RTJ, 81 Ark. App. 379, 101 S.W.3d 881 (2003). No

such duty exists, however, if the condition of the premises that creates the danger was

known by, or obvious to, the invitee unless the premises owner should reasonably anticipate

that the invitee would be exposed to the danger despite his knowledge of it or its obvious

nature. Id. Whether a duty is owed is always a question of law and never one of fact for the

jury. Jordan v. Jerry D. Sweetser, Inc., 64 Ark. App. 58, 977 S.W.2d 244 (1998). The parties

agreed that Sherrill was an invitee; thus, the question of law, i.e., the duty owed her, is not

in dispute.

Here, Sherrill contends that summary judgment is inappropriate because there are

material questions of fact susceptible to differing interpretations regarding her knowledge of

the dangerous condition of the ramp and whether the condition is obvious. “Known” in

this context means “not only knowledge of the existence of the condition or activity itself,

but also appreciation of the danger it involves.” Shook v. Love’s Travel Stops & Country Stores,

Inc., 2017 Ark. App. 666, at 6, 536 S.W.3d 635, 639. “Thus the condition or activity must

5
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. A dangerous

condition is “obvious” when both the condition and the risk are apparent to, and would be

recognized by, a reasonable man in the position of the visitor exercising ordinary perception,

intelligence, and judgment. Id.

III. Discussion

Summary judgment is improper in light of the factual questions regarding the ramp’s

dangerous condition and whether it is open and obvious. A recent case, Dollar General Corp.

v. Elder, 2020 Ark. 208, 600 S.W.3d 597, mandates reversal.

In Dollar General, business invitee Karen Elder slipped and fell on the wet concrete

sidewalk near the entrance to the Dollar General store, which caused her serious injury. The

case went to trial, and at the close of Elder’s case, Dollar General moved for a directed

verdict, arguing that Elder did not introduce substantial evidence that the concrete was

unreasonably dangerous or improperly maintained. The circuit court denied the motion,

and Dollar General appealed the denial of its directed verdict. In pertinent part, Dollar

General argued on appeal that Elder failed to prove that the sidewalk she slipped on was

unreasonably dangerous and that Elder did not prove that the landlords failed to maintain

the sidewalk outside the store or failed to keep the premises in compliance with the

Americans with Disabilities Act. It is important to keep in mind that just as it is improper

to grant summary judgment when a reasonable minds could come to different conclusions,

a motion for directed verdict should be denied when there is a conflict in the evidence or

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when the evidence is such that fair-minded people might reach a different conclusion. See

Nat’l Bank of Ark. v. River Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754.

Our supreme court upheld the circuit court’s denial of the directed verdict and

recounted the evidence presented at trial as follows. There was no dispute that Elder was an

invitee. There was testimony the concrete’s texture was not uniform, one side being smooth

concrete and the other rougher concrete. Elder’s safety expert testified that the smoother

area of the concrete created the potential for an accident and a slip-resistant mat or coating

would have reduced the risk. There was testimony that other people had slipped there and

that the managers of the store were aware of the situation. On the day of Elder’s fall, the

usual precautions—placing a mat and a cart at the entrance—had not been taken; thus, our

supreme court held, substantial evidence supported the contention that a dangerous

condition existed, and Dollar General was aware of the condition.

In the instant case, it is undisputed that Sherrill was an invitee. Sherrill presented

deposition testimony that the surface of the walking area presented a dangerous condition,

the dangerous condition was not apparent, there were ways the surface could have been

made safer. Witnesses stated that they had seen other people fall on the ramp over several

years, and Rika was aware of the falls. Clearly, Dollar General applies here.

Rika argues that a similar fact pattern occurred in Jenkins v. Hestand’s Grocery, 320

Ark. 485, 898 S.W.2d 30 (1995), in which a customer fell on a wheelchair ramp, and our

supreme court affirmed summary judgment in favor of the grocery store, holding that there

was no evidence to show the ramp presented a dangerous or unreasonable risk to invitees.

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Again, the more recently decided Dollar General case is closer to the facts at issue

here. Moreover, in Dollar General, the supreme court rejected Dollar General’s comparison

of that case to Jenkins. In Jenkins, the appellant fell leaving the store as she was walking on a

“very slight slope which looked like there was no incline because the asphalt had been

‘brought right up to the sidewalk.’” Id. at 486, 898 S.W.2d at 30. The store had never

received a complaint about the area where Jenkins fell. Thousands of customers had walked

on the wheelchair ramp, and there had never been any similar incident. No expert testified

that a dangerous condition existed, and the circuit court found there was no evidence

presented to show that the condition alleged to have caused the fall constituted a danger or

that it presented an unreasonable risk, and there was no evidence presented that Hestand’s

knew that the ramp was dangerous or presented any risk to its invitees.

In rejecting Dollar General’s comparison to Jenkins, our supreme court held that

[t]his reliance is misplaced. In Jenkins, the plaintiff alleged that she slipped in the
middle of an incline that had been built to aid carts and wheelchairs in negotiating
the curb between the store and the parking lot. Evidence before the circuit court
revealed that the condition had existed for twenty-nine years and that the store had
served between 3,000 and 4,000 customers per year without incident. The circuit
court granted summary judgment in favor of the grocery store. The court concluded
that Jenkins had presented no evidence that the condition was dangerous or an
unreasonable risk and that there was no evidence that the store owners were aware
that the ramp constituted an unreasonable risk to its invitees. Jenkins, 320 Ark. 485,
898 S.W.2d 30. In contrast, here, Elder presented evidence that multiple people had
slipped on the smooth concrete and that both Dollar General and the Landlords had
been notified of the danger. Likewise, although Jennings performed a visual
evaluation of the concrete as part of his investigation, an expert’s trained eye that is
looking with 20/20 hindsight for dangerous conditions cannot be equated to a
customer who casually enters a store and may be less concerned with evaluating the
surface characteristics of the concrete walkway than with avoiding a collision with
other customers entering or leaving the store. Further, Rodney Fagan testified that
he had seen the concrete and that it did not look slippery to him. Finally, Elder

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testified that she had entered the store multiple times before and had never noticed
the differences in the concrete’s texture. Viewing the evidence in the most favorable
light to Elder, as we must, we conclude that substantial evidence supports the jury’s
verdict and affirm on this point.

Dollar General, 2020 Ark. 208, at 9–10, 600 S.W.3d at 603–04.

The supreme court held that this testimony provided substantial evidence that the

concrete presented an unreasonably dangerous condition and that Dollar General was aware

of the condition.

The same analysis applies here. Unlike Jenkins and similar to Dollar General, there is

evidence that Rika was aware of previous falls on the ramp, there was evidence presented

regarding the dangerous surface of the ramp and its nonregulation slope, and there was

evidence that a different surface could have been more slip resistant. Importantly, there was

testimony that the dangerous condition of the ramp was not open and obvious.

Our standard of review requires that the court view the evidence in the light most

favorable to Sherrill. In light of this standard and our supreme court’s holding in Dollar

General, we reverse the circuit court’s grant of summary judgment and remand for further

proceedings.

Reversed and remanded.

WHITEAKER, HIXSON, and MURPHY, JJ., agree.

HARRISON and BROWN, JJ., dissent.

WAYMOND M. BROWN, Judge, dissenting. I disagree with the majority’s

decision to reverse and remand the circuit court’s order. The facts support the circuit court’s

grant of summary judgment to appellee Rika Properties.

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On December 28, 2016, after leaving the Brickhouse Grill1 in Hot Springs, appellant

slipped and fell on the ramp outside the restaurant and broke her shoulder. The weather

was damp and misty at the time of appellant’s injury and it had rained the day before.

Appellant filed a complaint against both Rika and Deja, Inc. (d/b/a Brickhouse Grill) on

August 14, 2018, alleging that it was their negligence that led to her fall and the subsequent

need to have her left shoulder replaced as a result of her injury. She alleged that she was an

invitee at the time of her injury, and as such, Rika and Deja owed her a duty to use ordinary

care to keep the premises in a reasonably safe condition. She also argued that Rika and Deja

were negligent per se because the ramp in question was in violation of local and state laws

and regulations. Appellant sought monetary damages for past and future pain and suffering;

past and future medical bills; emotional distress; scarring and disfigurement; and any other

damages allowed by law. Rika answered the complaint on September 11, 2018, denying it

was negligent and stating that appellant’s own negligence and failure to use ordinary care

caused her injury. Deja also answered on September 11, denying negligence and contending

that appellant was negligent at the time of her fall.

Appellant served Rika and Deja with requests for admissions on March 15, 2019.

Rika submitted its response on March 26. In the response, Rika admitted that it was solely

responsible for the maintenance of the ramp at the time of appellant’s fall. However, it

1
Brickhouse Grill is a tenant in a commercial building owned by Rika at 801 Central
Avenue (also known as Spencer’s Corner).

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denied being in violation of any codes or regulations. It further denied that the elevator

located on the property was inoperable. Rika subsequently filed a motion for summary

judgment and brief in support of its motion on May 24. It attached excerpts from appellant’s

deposition testimony to support its motion. In the testimony, appellant stated that over the

years, she had been on the ramp at least fifty times and that she never had a problem with

the ramp prior to her fall. She also stated that she never heard about anyone else falling on

the ramp prior to December 2016. She testified that on the day in question, she was wearing

flat boots with rubber soles that came below her knees. She stated that she walked up the

ramp on her way to lunch with no problems. She admitted that it was misty at the time of

her fall and that the ramp was uncovered. She said that she immediately put her right hand

on the right-hand side of the rail when she reached the ramp and took maybe three steps

before her “feet went up in the air.” She contended that Rika failed to fix the ramp when

it should have and that the ramp had been “in that same condition for years.” She stated

that there was a problem with ramp because it was wet, and that it was unsafe because she

slipped and fell on it. Thus, she concluded that Rika failed to keep the ramp safe as was its

duty. She opined that the ramp was “slick as glass” and slick enough to make her fall. She

also said that she “walked down a set of wet stairs and . . . didn’t fall[,]” solidifying her

conclusion that Rika was responsible for her fall.

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Appellant filed a motion to voluntarily nonsuit Deja without prejudice on June 4.

The court granted the motion in an order filed on June 10. 2

Appellant filed a response to Rika’s summary-judgment motion on June 17. She

contended that the ramp was defective and that it “improperly functions as a walkway

connecting the upper floor where Brickhouse Grill is located to the lower floor below

where other restaurants and businesses are located, as well as where the exit and the

building’s only parking lot are located.” She maintained that the ramp’s surface material

was so slippery and its slope was so steep that she fell despite her best efforts to be careful

and protect herself. She further contended that the ramp was “the only practical and the

most convenient means by which an invitee who parks in the Rika parking lot can get to

the Brickhouse Grill. In order to get from the building’s only parking to the Brickhouse

Grill, customers typically use this ramp.” She asked the court to deny Rika’s motion as

material issues of genuine fact remained. She included the affidavit of Justin Hall, P.E., and

excerpts from several depositions to support her request. In his June 12, 2019 affidavit, Hall

stated that he was a professional engineer and had visited the site of appellant’s injury on

May 5, 2018, to perform an inspection of the ramp. He said that he prepared a hazard study

and subsequently concluded:

The ramp on which Anna Sherrill fell is in violation of ADA Standards for
Accessible Design, Arkansas Fire Prevention Code, Volumes I or II, 2007 Edition,
OSHA Regulations and applicable ICC Building Code. The ramp slope and surface

2
This does not seem to create a finality issue because more than a year has passed
since the court granted the motion, and there is no indication that appellant refiled her
complaint against Deja.

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material are in violation of the minimum requirements within those standards. This
ramp is unsafe due to these deficiencies. Because of these violations, this ramp is
defective and hazardous. These defects are not something that would be obvious to
the untrained eye.

The ramp had a 12% slope where only 8% is allowed by code and regulations.
This is a violation of identical codes found in the ADA, AFPC, ICC, and OSHA.
This violation makes this ramp defective and unnecessarily hazardous.

This defect is not something that would be known or obvious to the average
person using the ramp.

The surface of the ramp is also in violation of ICC Building Codes and
Arkansas Fire Prevention Codes, which require that the surface of ramps such as this
one be made of slip-resistant materials that are securely attached, and that the surface
be designed so that water will not accumulate. The surface of this ramp is made of
semi-smooth PVC material which captures dirt and debris. It also accumulates
moisture. This surface is not only dangerous when wet, but also dangerous when
dry. These violations make this ramp defective and unnecessarily hazardous.

This defect is not something that would be known or obvious to the average
person using the ramp.

In the excepts from appellant’s deposition, appellant stated that she did not have

anything in her hands when she fell and that she did not see a foreign substance on the ramp

or on her boots at the time of her fall. She said that she was paying attention to where she

was going because she did not want to fall on her knees since she had previously had a knee

replacement. She testified that she is “more careful” following the knee replacement. She

denied that her knees buckled or had anything to do with her fall. She said that prior to

falling, she had no idea the ramp was dangerous. She stated that Rika could have made the

ramp safer by paying attention to the history of several falls there.

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Stephanie Warman, an employee of Picante’s,3 stated in her deposition that she had

seen about four other people fall on the ramp over the years when it was rainy, cold, or

wet. She said that she was sure that someone notified Rika about the falls although she did

not personally make the notifications.

Richard J. Karuhn, the owner of Rika, stated that as the property owner, it was his

duty to keep the property safe and to warn people of any unsafe conditions that he was

aware of. He said that there had been one slip on the ramp in November 2013, and there

was a written report placed in the files. He testified that in twenty-three years, the 2013

incident was the only slip on the ramp he was aware of and that in that incident, the lady

had on cowboy boots and fell on her behind. He stated that he heard about appellant’s

incident in a letter sent to him by her attorney. He testified that he relied on Hot Springs

Code and Enforcement agents to inform him if he is in violation of any codes since they are

constantly at the building and on the ramp. He said that he did not know the code

requirements for the ramp and that the ramp had not been altered in the twenty-three years

he had owned the property. He stated that to the best of his knowledge, the ramp had been

there since 1978. He denied having knowledge about the code requirements for a ramp’s

surface material. He said that he did not have any facts to suggest that Hall’s conclusions or

findings were wrong. He testified that he had no knowledge that the ramp was dangerous

prior to appellant’s fall. He agreed that if he had no knowledge of the dangerous nature of

3
Another restaurant located in the commercial building owned by Rika located at
801 Central Avenue.

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the ramp due to the slope and surface material, appellant would not have knowledge of it

either.

In the deposition of Scott Cates, manager of Brickhouse Grill, he stated that he had

witnessed one or two people fall every year on the ramp since 1998. He said that he

informed maintenance about what he saw when he remembered to. He subsequently stated

that he had witnessed at least twenty people fall on the ramp in question.

Merrilyn Mann, appellant’s sister, testified that December 28, 2016, was the first time

appellant had ever slipped and/or fallen on the ramp. She stated that they would take the

ramp because it was closer to the parking lot. She said that there was only one parking lot

for the building and that otherwise, someone would have to park on the street. She testified

that if someone decided not to take the ramp, they would have to walk “all the way around

the court on flat surface.” She admitted that the elevator was another option but that she

did not like to use it.

Rika filed a reply to appellant’s response on June 24, 2019, contending that it was

entitled to summary judgment. An order was filed on July 1, granting Rika’s motion for

summary judgment. Appellant filed a timely notice of appeal on July 9. This appeal

followed.

It is well settled that summary judgment should be granted only when it is clear there

are no issues of material fact to be litigated, and the party is entitled to judgment as a matter

15
of law.4 Once the moving party has established a prima facie entitlement to summary

judgment, the opposing party must meet proof with proof and demonstrate the existence of

a material issue of fact.5 On appeal, viewing the evidence in the light most favorable to the

nonmoving party and resolving all doubts and inferences against the moving party, we

determine if summary judgment was appropriate by assessing whether the moving party’s

evidence in support of its motion leaves a material question of fact unanswered. 6 Our

appellate review is not limited to the pleadings, as we also focus on affidavits and other

documents filed by the parties.7

In Arkansas, a property owner has a duty to exercise ordinary care to maintain the

premises in a reasonably safe condition for the benefit of invitees.8 An invitee is one who

visits “for a purpose connected with the business dealings of the owner.” 9 The basis of a

defendant’s liability under this rule is superior knowledge of an unreasonable risk of harm

4
Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Hopkins, 2018 Ark. App. 174, 545
S.W.3d 257.
5
Id.
6
Holman v. Flores, 2018 Ark. App. 298, 551 S.W.3d 1.
7
Id.
8
Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989).
9
Young v. Paxton, 316 Ark. 655, 660, 873 S.W.2d 546, 549 (1994).

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of which an invitee, in the exercise of ordinary care, does not know or should not know.10

An owner’s duty to warn an invitee of a dangerous condition applies only to defects or

conditions such as hidden dangers, traps, snares, pitfalls and the like, in that they are known

to the owner but not to the invitee and would not be observed by the latter in the exercise

of ordinary care.11 An Arkansas landowner generally does not owe a duty to an invitee if a

danger is known or obvious.12 The obvious-danger rule, however, does not bar recovery

when the invitee is forced, as a practical matter, to encounter the obvious danger in order

to perform his or her job.13

A slip and fall by an invitee on an owner’s premises does not in itself give rise to an

inference of negligence as a matter of law. 14 Negligence is not imposed in the absence of

proof; and conjecture and speculation, however plausible, cannot be permitted to supply

the place of proof.15 To prevail on a claim of negligence, the plaintiff must prove that the

10
Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995).
11
Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001).
12
Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974).
13
Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).
14
Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994).
15
Sammons v. SEECO, Inc., 2012 Ark. App. 650, 425 S.W.3d 38.

17
defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the

breach was the proximate cause of the plaintiff’s injuries.16

Appellant relies on Dollar General Corporation v. Elder17 to support her proposition

that the court erred by granting Rika summary judgment against her. In Elder, appellee

Karen Elder slipped and fell on wet concrete outside the entrance to Dollar General while

running inside on a rainy day. Elder reported the fall that day and received medical

treatment the next day. She subsequently underwent neck, back, and shoulder surgery. She

filed a complaint nearly three years later on June 7, 2013, and an amended complaint in

August 2014. She claimed that she was injured during the fall; that she was a business

invitee; that Dollar General had a duty to use reasonable care in maintaining its business

premises; that Dollar General knew or should have known that the rain was causing the

concrete at the outside entrance to become dangerously and unexpectedly slippery; and that

if Dollar General had used reasonable care to either post appropriate signs warning of the

slippery concrete and/or ensure that mats were in place outside the entrance, her injury

would not have occurred. She claimed that she was permanently disabled because of the

fall and that she had sustained and will continue to sustain pain, medical expenses, permanent

impairment, scars and disfigurement, and loss of earnings. Dollar General answered and

denied liability.

16
Shook v. Love’s Travel Stops & Country Stores, Inc., 2017 Ark. App. 666, 536 S.W.3d
635.
17
2020 Ark. 208, 600 S.W.3d 597.

18
A jury trial took place from July 24 to July 27, 2017. Elder elicited testimony that

Dollar General was aware of the dangerous conditions caused by the wet concrete and that

the landlord, Rodney Fagan, said that it would be “taken care of.” She also elicited expert

testimony that one side of the exterior concrete had a rough finish, and the other side had

a smoother finish. Dollar General unsuccessfully moved for a directed verdict, arguing that

Elder failed to prove that the concrete was unreasonably dangerous or improperly

maintained. The jury returned a verdict in Elder’s favor for $700,000. It was reduced to

$630,000 because Elder was found to be 10 percent at fault. The court entered judgment

on the verdict on August 8, 2017. Dollar General filed a motion for JNOV or for a new

trial, which was subsequently deemed denied. Dollar General appealed, and this court

affirmed.18 Our supreme court granted Dollar General’s petition for review and entered an

opinion on May 28, 2020, affirming the lower court’s order. On the issue of negligence,

our supreme court held that the concrete created an unreasonably dangerous condition due

to the concrete’s not being uniform; that Dollar General was aware of the dangerous

condition; and that it was not an obvious danger based on Elder’s testimony that she had

been to the store numerous times and had not noticed the difference in the concrete’s surface

and on Fagan’s testimony that the concrete did not look slippery to him.

This case is distinguishable. Even viewing the evidence in the light most favorable

to appellant, summary judgment was appropriate. Assuming that the ramp was defective or

18
Dollar Gen. Corp. v. Elder, 2019 Ark. App. 526, 589 S.W.3d 437.

19
dangerous at the time of the appellant’s fall, it was an obvious danger. Appellant had been

on the ramp at least fifty times over the years, so she knew the condition of the ramp even

if she did not know the slope measurements or know that the surface material posed a risk.

An outside ramp affected by the elements—in this case, rain the day before and misting at

the time of the fall—is not an unreasonably dangerous condition. Any risk of harm by

slipping and falling on a wet ramp should have been known or obvious to appellant. That

Rika may have been informed about others who had slipped on the ramp over the years is

of no consequence under the facts of this case.

The forced-encounter argument appellant makes is not applicable in this situation.

Evidence shows that there were other means available for appellant to reach her destination

without using the ramp. Appellant chose to use the ramp because it was habit and because

it was convenient. Additionally, this exception has been used only in the context of

performing a job. Appellant was not at work but was simply leaving a restaurant the same

way she came when she fell.

I respectfully dissent.

HARRISON, J., joins.

Green & Gillespie, by: Joshua D. Gillespie; and Brian G. Brooks, Attorney at Law, PLLC,

by: Brian G. Brooks, for appellant.

Laser Law Firm, by: Kevin Staten and Brian A. Brown, for appellee.

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