                                 Cite as 2014 Ark. App. 459

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                       No. CV-13-1100


                                                   Opinion Delivered   September 10, 2014

SUSAN ANNETTE VER WEIRE                            APPEAL FROM THE POPE COUNTY
                   APPELLANT                       CIRCUIT COURT
                                                   [NO. CV-10-253]
V.
                                                   HONORABLE DENNIS CHARLES
                                                   SUTTERFIELD, JUDGE
WAYNE STYLES and PATTY STYLES
                     APPELLEES                     REVERSED AND REMANDED



                             KENNETH S. HIXSON, Judge


       This is the second appeal in this premises-liability case. The appellees, Wayne and

Patty Styles (the “Styleses”), own Centerville Dragway (the “raceway”). Appellant Susan

Annette Ver Weire was a spectator at a racing event held at the raceway, and she filed a

negligence suit against the Styleses after sustaining personal injuries at the event. In her

complaint, Ms. Ver Weire alleged that the appellees were negligent in their maintenance of

the raceway bleachers, and that a bleacher board in the bleachers came loose, causing her to

fall to the ground and suffer multiple ankle fractures.

       The first appeal to this court came after the trial court granted the Styleses’ motion for

summary judgment on the ground that a release form signed by Ms. Ver Weire prior to the

racing event released the Styleses from any and all liability. However, in Ver Weire v. Styles,

2013 Ark. App. 208, 427 S.W.3d 112, we held that the release relied on by the Styleses did
                                  Cite as 2014 Ark. App. 459

not operate as a bar to Ms. Ver Weire’s cause of action for her damages allegedly caused by

the Styleses’ negligence in failing to properly maintain the bleachers. Accordingly, we

reversed the summary judgment and remanded the case.

       After our remand, the Styleses filed another motion for summary judgment, this time

arguing that Ms. Ver Weire could not sustain her claim of negligence. Specifically, the

Styleses asserted that there was no evidence that either of them created the alleged defect with

the bleachers or that such a defect was reasonably apparent to them. The trial court granted

the Styleses’ summary-judgment motion, and this second appeal followed. We agree with

Ms. Ver Weire’s argument that summary judgment was erroneously entered against her on

her negligence claim, and we again reverse and remand.

       Summary judgment should be granted only when it is clear that there are no genuine

issues of material fact to be litigated, and the moving party is entitled to judgment as a matter

of law. Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 231

S.W.3d 720 (2006). The purpose of summary judgment is not to try the issues, but to

determine whether there are any issues to be tried. Id.

       Arkansas law provides that a property owner has a general duty to exercise ordinary

care to maintain a reasonably safe condition for the benefit of his invitees. Kroger Co. v. Smith,

93 Ark. App. 270, 218 S.W.3d 359 (2005). To recover for the failure of a possessor of

property to use ordinary care, the business invitee has to show (1) that the premises were

defective; (2) that the possessor created the defect, or that the defect was apparent or by the

exercise of ordinary care should have been apparent, so that a reasonably prudent possessor


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would correct the defect or warn the invitee of it; and (3) that the defect caused the injury.

Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993). The owner is not an insurer of the

safety of invitees on his premises, but his liability to an invitee must be based upon negligence.

Ollar v. Spakes, 269 Ark. 488, 601 S.W.2d 868 (1980).

       The Styleses attached two evidentiary exhibits in support of their motion for summary

judgment—excerpts from a deposition given by Ms. Ver Weire and an affidavit of Wayne

Styles. In Ms. Ver Weire’s deposition, she testified about her visit to the raceway on July 3,

2005. Ms. Ver Weire had taken her two young nephews to the raceway and they ascended

the bleachers near the starting line where they sat and watched several races. Ms. Ver Weire’s

nephews wanted to change locations to the finish line, and the older nephew jumped off the

back of the bleachers to the ground. Ms. Ver Weire then picked up the younger nephew and

lowered him to the ground from the side of the bleachers.

       Ms. Ver Weire stood on a wooden bleacher board and attempted to exit from the side.

She stated that when she put her weight on the end of the bleacher board “the whole thing

tipped with me,” causing her to fall to the ground and sustain injuries. Ms. Ver Weire

indicated that a person in the crowd inspected the bleacher board and said, “well, it’s not

attached.” Ms. Ver Weire further testified that she knew the bleacher board was not attached

when it threw her, stating that “the whole thing went up in the air and it went bang, bang,

bang, bang . . . when it hit.” Ms. Ver Weire stated, “I stood up and when I got my foot over

the edge of whatever was supporting it, the whole thing went.”




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       In Wayne Styles’s affidavit, he stated:

       1.     I am an officer of Centerville Dragway, Inc., which operates the Centerville
              Dragway racetrack in Centerville, Arkansas.
       2.     I am over the age of 18, mentally and legally competent to testify, and have
              personal knowledge of the matters asserted herein.
       3.     In my capacity with Centerville Dragway, Inc., I would personally inspect the
              bleachers at the track. This was and continues to be my routine, habit, and
              custom, predating July 3, 2005. I conduct my inspection on a weekly basis,
              every Friday before the weekend races.
       4.     As part of my inspection, I visually inspect the bleachers, row by row and
              section by section. I visually look for broken boards, boards which are out of
              place or out of position, and for loose bolts. As part of my inspection, I visually
              inspect under the bleachers and where the bleacher boards are physically
              attached to the bleachers. I also walk on each of the boards to physically
              confirm that they are secure.
       5.     I perform these inspections on a weekly basis every Friday and have done so
              since before July 3, 2005.
       6.     On Friday, July 1, 2005, I personally inspected the bleachers before the
              weekend racing events. I visually inspected the bleachers, row by row and
              section by section. I visually looked for broken boards, boards which were out
              of position or out of place, and for loose bolts on the bleachers. As part of my
              inspection, I visually inspected under the bleachers and where the bleacher
              boards were physically attached to the bleachers. I also physically walked on
              the boards to ensure they were securely fastened. Upon inspection, there was
              no evidence of disrepair or that the bleacher boards were not securely affixed
              to the bleachers.
       7.     On Saturday, July 2, 2005, the Centerville Dragway opened for racing and the
              bleachers were full of patrons. There were no reported incidents involving the
              bleachers that night nor did any patron report a problem or hazard with the
              bleachers or bleacher boards.
       8.     Centerville Dragway, Inc. has had no reports of injuries or prior complaints
              related to the bleachers or bleacher boards before the alleged incident involving
              plaintiff, Susan Annette Ver Weire, on July 3, 2005.

       In this appeal, Ms. Ver Weire argues that summary judgment was erroneously entered

in favor of the Styleses because there were genuine issues of material fact as to whether the

Styleses were negligent. We agree that summary judgment was inappropriate.



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       In the appellees’ brief, the Styleses contend that no consideration should be given to

the hearsay statement of the unknown raceway patron allegedly said the bleacher board was

not attached at the opposite end of where appellant had fallen. Indeed, we have held that a

statement that is not based on personal knowledge, but on inadmissible hearsay, will not be

accepted as the basis for finding a genuine issue of material fact to deny entry of summary

judgment. Cowan v. Ellison Enters., Inc., 93 Ark. App. 135, 217 S.W.3d 175 (2005). Here,

we do not reach the issue of whether this alleged statement by a third person is admissible or

not admissible because Ms. Ver Weire testified of her own personal knowledge that she knew

the bleacher board was not attached when it “threw her” and she fell. Therefore, Ms. Ver

Weire’s testimony alone constituted some relevant evidence from which the trier of fact could

reasonably infer or conclude that the bleachers were defective.

       The appellees also rely on Mangum v. Pigue, 359 Ark. 373, 198 S.W.3d 496 (2004),

where the supreme court said that negligence is not imposed in the absence of proof, and the

fact that an accident occurred with nothing more is not evidence of negligence on the part

of anyone. That principle is sound, but not applicable here because Ms. Ver Weire did not

simply present proof of an accident; she also presented proof, if believed, that the accident was

caused by a loose bleacher board. Moreover, on the evidence presented, reasonable jurors

could reach different conclusions as to whether the Styleses should have known of the

defective bleachers in the exercise of ordinary care.

       Our opinion in Van DeVeer v. RTJ, Inc., 81 Ark. App. 379, 101 S.W.3d 881 (2003),

is persuasive for the case at bar. In Van DeVeer, the trial court granted summary judgment to


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the defendant because the material facts were not in dispute. However, the court of appeals

reversed the summary judgment and held that the finder of fact could reasonably draw

different and inconsistent conclusions from those undisputed facts.

       A brief discussion of Van DeVeer is helpful. Mr. Van DeVeer was working at a

greenhouse owned by RTJ, Inc., installing windows. Van DeVeer opened a door to descend

a staircase. There was a gap between the boards on the landing and Van DeVeer fell, causing

personal injuries. Van DeVeer filed a premises-liability suit against RTJ, Inc., generally

alleging negligence. RTJ, Inc., filed a motion for summary judgment alleging, among other

things, that the gap in the boards was open and obvious. The facts were not in dispute. In

other words, there was not a genuine issue of material fact; however, those undisputed facts

could lead to inconsistent and different inferences or conclusions. In reversing summary

judgment, the Van DeVeer court discussed the issue as follows:

       In Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000), the
       supreme court said:

                    Summary judgment is not proper, however, “where evidence, although
              in no material dispute as to actuality, reveals aspects from which inconsistent
              hypothesis might reasonably be drawn and reasonable minds might differ.”
              Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991).

                      As we further explained in Wallace v. Broyles, 332 Ark. 189, 961
              S.W.2d 712 (1998), we will not engage in a “sufficiency of the evidence”
              determination. We have ceased referring to summary judgment as a drastic
              remedy. We now regard it simply as one of the tools in a trial court’s efficiency
              arsenal; however, we only approve the granting of the motion when the state
              of the evidence as portrayed by the pleadings, affidavits, discovery responses,
              and admission on file is such that the nonmoving party is not entitled to a day
              in court, i.e., when there is not any genuine remaining issue of fact and the
              moving party is entitled to judgment as a matter of law. Id. However, when there
              is no material dispute as to the facts, the court will determine whether “reasonable minds”

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               could draw “reasonable” inconsistent hypotheses to render summary judgment
               inappropriate. In other words, when the facts are not at issue but possible inferences
               therefrom are, the court will consider whether those inferences can be reasonably drawn
               from the undisputed facts and whether reasonable minds might differ on those hypotheses.
               340 Ark. at 569–70, 11 S.W.3d at 536.

                There are no factual disputes in this case about the physical condition of the
       stairs, such as the fact that the stairs contained no landing and were hidden by a door.
       Regarding Van DeVeer’s knowledge of the dangerous condition, it is also undisputed
       that Van DeVeer had never used the stairs in question, and although while working
       on the lower level, he had noticed that the stairs did not have a handrail, he stated that
       he did not know that there was no landing at the top of the stairs. However, even if there
       are no disputed questions of fact regarding whether Van DeVeer had knowledge of the dangerous
       condition or whether the stairs were an obvious danger, we conclude that reasonable men could
       reach different conclusions from these facts regarding the duty owed by RTJ, and summary
       judgment was inappropriate in this instance.

               ....

       We agree [with Van DeVeer] and conclude that reasonable men could reach different
       conclusions as to whether RTJ should have anticipated that harm to its invitee might
       arise under the circumstances presented in this case; thus, we hold that summary
       judgment was also inappropriate on this issue.

Van DeVeer, 81 Ark. App. at 388–90, 101 S.W.3d at 886–87 (emphasis added).

       The circumstances in this case present the occasion for a similar Van DeVeer analysis.

For the limited purpose of reviewing the appropriateness of summary judgment, the material

facts herein are not in dispute. The appellant, Ms. Ver Weire, stepped on the end of a

bleacher board, the other end of the bleacher board rose into the air, and Ms. Ver Weire fell

to the ground and sustained personal injuries. Ms. Ver Weire testified, “[W]hen I put my

weight on the end of the board, the whole thing tipped with me. . . . It [the bleacher board] was just

sitting on the frame but it wasn’t attached to the frame because the whole thing—I knew it wasn’t

attached when it threw me. The whole thing went up in the air and it went bang, bang, bang, you


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know, when it hit.” On the other hand, Mr. Styles testified in his affidavit that he personally

inspected the bleachers on Friday and did not discover any defect. Mr. Styles further stated

that no one complained regarding the condition of the bleachers on Friday or Saturday nights

and the Ver Weire accident occurred on Sunday night. Applying the rationale and holding

in Van DeVeer to the facts in this case, we arrive at the same conclusion.

       We conclude that reasonable men could reach different conclusions from these facts

regarding whether the Styleses breached their duty to maintain its premises in a reasonably safe

condition and whether the Styleses should have anticipated that harm to its invitee might arise

under the circumstances presented in this case. Thus, we hold that summary judgment was

inappropriate in this instance.

       Reversed and remanded.

       WYNNE and BROWN, JJ., agree.

       Jon R. Sanford, P.A., by: Jon R. Sanford, for appellant.

       Anderson, Murphy & Hopkins, L.L.P., by: Mark D. Wankum, for appellees.




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