                                Cite as 2017 Ark. App. 186


                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CV-16-32

                                             Opinion Delivered   March 29, 2017

           JASON HARRIS               APPEAL FROM THE SALINE
                            APPELLANT COUNTY CIRCUIT COURT
                                      [NO. 63CV-2015-59-2]
           V.
                                             HONORABLE GARY ARNOLD,
           NORMAN BETH                       JUDGE
                              APPELLEE
                                             AFFIRMED


                           BRANDON J. HARRISON, Judge

       Jason Harris appeals the Saline County Circuit Court’s denial of his motion for

summary judgment. 1 He argues that the circuit court erred in finding that he was not

entitled to immunity pursuant to Ark. Code Ann. § 21-9-301 (Supp. 2015). We affirm the

circuit court.

       Harris is an officer with the Little Rock Police Department K-9 Unit and was

assigned a canine officer named Ammo in October 2012. As part of his duties, Harris was

required to house Ammo at his private residence in Saline County, and he and Ammo were

required to be available on a twenty-four-hour, on-call basis to assist other officers as

needed. In August 2014, Norman Beth, Harris’s neighbor, was doing yard work at his




       1
         This case was originally filed in the court of appeals, but the supreme court assumed
jurisdiction in March 2016. The case was fully briefed by early June 2016, but the supreme
court took no action on the case and transferred it back to this court in February 2017.
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home when he was bitten on the leg by Ammo, who had escaped from Harris’s backyard.

Harris was not home at the time of the incident.

       In January 2015, Beth filed a complaint against Harris alleging negligence and strict

liability for housing an animal known to have dangerous tendencies.               Beth sought

compensatory and punitive damages for the injuries to his leg. Harris responded by denying

the allegations in their entirety and by affirmatively pleading qualified immunity.

       In June 2015, Harris moved for summary judgment, arguing that there were no

genuine issues of material fact and that he was entitled to immunity pursuant to Ark. Code

Ann. § 21-9-301(a):

       It is declared to be the public policy of the State of Arkansas that all counties,
       municipal corporations, school districts, public charter schools, special
       improvement districts, and all other political subdivisions of the state and any
       of their boards, commissions, agencies, authorities, or other governing bodies
       shall be immune from liability and from suit for damages except to the extent
       that they may be covered by liability insurance.

Harris argued that this immunity is extended to a municipality’s employees for acts of

negligence committed in their offical capacities and that he was acting in his official capacity

for the Little Rock Police Department by maintaining Ammo at his residence and remaining

on call twenty-four hours a day. In support, he cited Autry v. Lawrence, 286 Ark. 501, 696

S.W.2d 315 (1985), which confirmed that Ark. Stat. Ann. § 12-2901 (now codified as Ark.

Code Ann. § 21-9-301) immunized city employees when they were accused of negligence

in the performance of their official duties.

       In response, Beth argued that § 21-9-301 was inapplicable because Harris was not

acting in his official capacity when the incident occurred. Beth asserted that he had never

alleged Harris was liable in his official capacity, but even if he had, Harris’s home was
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covered by a homeowner’s insurance policy, which Beth attached as an exhibit. So Harris

would be immune from liability only “to the extent that [he] may be covered by liability

insurance.” Harris replied that “the issue of insurance is not that provided to Defendant

Harris in his individual capacity but that provided to him through the City of Little Rock

in his official capacity,” so the homeowner’s policy was irrelevant.

       The circuit court held a summary-judgment hearing in October 2015, during which

Harris continued to argue that one of his ongoing job duties was to care for and secure the

dog on his property, so he was acting in his official capacity. He also reasserted that the

insurance coverage to which the statute refers is the insurance coverage on the municipality

and stated, “So in this particular case, obviously the City of Little Rock is not participating

here. There’s no insurance coverage exception for this particular instance.” Beth responded

that it was not the intent of the statute to give blanket immunity to municipal employees

for their negligence. He also denied that Harris was acting within the course and scope of

his employment and that a factual question existed as to whether Harris had actually secured

Ammo in his kennel that day. Instead, Harris was sued “as a private individual for having

an inherently dangerous animal on his property, an attack dog, and not having it secured

and allowing it to get out and attack neighbors. . . . [T]he fact that he is an employee of

the Little Rock Police Department doesn’t change the fact.”

       In its oral ruling, the circuit court found that this was a question of law and that

Harris’s argument was compelling. Nonetheless, the court ruled that the statute did not

provide immunity in this case, because if it did, “there is absolutely in my mind no way that

the Defendant could be liable for whatever that dog did anytime, anywhere. I can’t believe

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that’s what the statutes were intended to do and, therefore, the Motion for Summary

Judgment is denied.” In its written order denying summary judgment, the court found that

“the defendant is not entitled to immunity, [and] that Ark. Code Ann. [§] 21-9-301 and

the holding in Autry v. Lawrence, 286 Ark. 501, 696 S.W.2d 315 (1985) do not apply.”

Harris timely appealed. 2

       Summary judgment is to be granted by a circuit court 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. Sykes v. Williams, 373 Ark. 236, 239–40, 283 S.W.3d 209,

213 (2008). Once a 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. Id. After reviewing undisputed facts, summary judgment should be

denied if, under the evidence, reasonable minds might reach different conclusions from

those undisputed facts. Id. On appeal, we determine if summary judgment was appropriate

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

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. In reviewing questions of law, appellate review

is de novo. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844.



       2
          As a general rule, the denial of a motion for summary judgment is neither reviewable
nor appealable. Ark. Elder Outreach of Little Rock, Inc. v. Thompson, 2012 Ark. App. 681,
425 S.W.3d 779. The general rule does not apply, however, where the refusal to grant a
summary-judgment motion has the effect of determining that the appellant is not entitled
to its defense of immunity from suit, because the right of immunity from suit is effectively
lost if a case is permitted to go to trial. Id. This case is therefore appealable.
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       The same arguments that the circuit court heard are made again on appeal. Harris

says again that the circuit court erred in finding that he was not acting in his official capacity

and denying him immunity because “[w]hen it comes to activities involving Ammo, Officer

Harris is an extension of LRPD or the City of Little Rock and should be afforded the

immunity set forth to protect the City of Little Rock.” In support, he cites Eshleman v.

Key, 774 S.E.2d 96 (Ga. 2015), in which the Georgia Supreme Court, in a similar fact

situation, reversed the denial of summary judgment on immunity grounds and stated:

       As a DeKalb County Police officer and dog handler, Eshleman is responsible
       for the care and maintenance of Andor at all times, even when she is not
       working. For this reason, the allegation that Eshleman failed to secure the dog
       outside her home concerns her performance of an official function, and
       Eshleman presumptively is entitled to official immunity.

Id. at 98. Beth again argues that the circuit court did not err in denying summary judgment

because (1) Harris’s negligence in securing the dog did not occur within the course and

scope of his employment, so § 21-9-301 does not apply, and (2) Harris carries applicable

insurance that may cover these claims.

       We affirm the circuit court’s decision because Harris failed to establish a prima facie

entitlement to summary judgment. Section 21-9-301 provides immunity to municipal

employees for acts committed during the performance of their official duties except to the

extent there is liability coverage. In Vent v. Johnson, our supreme court made clear that the

defendant had to plead and prove an absence of liability coverage to be entitled to the

immunity afforded by the statute. 2009 Ark. 92, at 14, 303 S.W.3d 46, 53. The same

black-letter principle was recently applied again in City of Little Rock v. Yang, 2017 Ark. 18,

___ S.W.3d ___. Like Vent and Yang, Harris failed to plead and prove that the city lacks

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liability coverage. This fact is reason enough to affirm the circuit court’s denial of summary

judgment.

       Affirmed.

       GLADWIN and MURPHY, JJ., agree.

       Matthews, Sanders & Sayes, by: Mel Sayes, for appellant.

       The Brad Hendricks Law Firm, by: Mattheew E. Hartness; and Robert S. Tschiemer, for

appellee.




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