                                 Cite as 2015 Ark. App. 487

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                       No. CV-14-905




GARY STEVE LLOYD                                  Opinion Delivered   SEPTEMBER 16, 2015
                               APPELLANT
                                                  APPEAL FROM THE GARLAND
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CV-12-435]

PIER WEST PROPERTY OWNERS                         HONORABLE MARCIA R.
ASSOCIATION AND STATE FARM                        HEARNSBERGER, JUDGE
FIRE & CASUALTY COMPANY
                    APPELLEES                     REVERSED AND REMANDED



                            KENNETH S. HIXSON, Judge


       Appellant Gary Steve Lloyd was seriously and permanently injured as the result of a

fall from a second floor common-area balcony of a condominium building located at 100

Bayou Point in Hot Springs, Arkansas. The property is known as Pier West Condominiums.

Lloyd attended a party as a social guest of a friend who leased Unit D-4 in the condominium

complex. Lloyd alleged that during the party, the wooden guardrail attached to the second

floor balcony collapsed, causing him to fall to the ground below and sustain personal injuries.

Lloyd filed suit against appellee, Pier West Property Owners Association (“Pier West POA”),

alleging that Pier West POA was negligent in its installation and maintenance of the balcony

railing.1 The trial court granted summary judgment to Pier West POA finding that, as a

       1
       Lloyd also filed suit against Hot Springs Property Management, LLC (the property
management company contracted to manage these condominiums), State Farm Fire and
Casualty Company (the insurance company that issued a residential community association
                                 Cite as 2015 Ark. App. 487

matter of law, Lloyd’s status was that of a licensee, that there was no willful or wanton

conduct on the part of Pier West POA, that Lloyd failed to produce evidence that Pier West

POA had knowledge of the alleged dangerous condition, and that Lloyd failed to present any

evidence of a conscious disregard of the safety of others. Lloyd appeals the entry of summary

judgment against him and posits the following arguments for reversal and remand for trial:

       (1) That Pier West owed a duty of reasonable care to Lloyd;
       (2) That Pier West’s assumption of that duty extends to all persons on the property
       whether an invitee or licensee;
       (3) That Pier West’s purchase of business liability insurance is further evidence that it
       assumed a duty of care to third party invitees such as Lloyd; and
       (4) That Pier West owed a duty to Lloyd, who was a public invitee.

       This appeal returns to us after we ordered supplementation of the record and

appellant’s addendum to include necessary documents pertinent to our appellate review. Lloyd

v. Pier West Prop. Owners Ass’n, et al., 2015 Ark. App. 244. Those materials have been

provided, and thus we address the merits at this time.

       We hold that the trial court correctly determined that Lloyd was a licensee and not an

invitee. We disagree with the trial court, however, that there was no evidence to support the

existence of a duty owed by Pier West POA to Lloyd.

       There are at least three possible sources that could impose a duty of ordinary care on

the part of Pier West POA to maintain and repair the balcony to Unit D-4. First, Pier West

POA could have the duty to use ordinary care to make the condition safe or to warn a


liability policy on the property), and Deborah Shackleford (the owner of Unit D-4, the unit
rented by Monda Conner, the resident who invited Lloyd to the party). Summary judgment
was entered in favor of all these defendants as well, but Lloyd does not appeal those
summary-judgment orders.

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licensee who does not have reason to know of the danger. Second, Pier West POA may have

contractually assumed the duty of ordinary care. Third, Pier West POA may have assumed

the duty of ordinary care by agreeing to repair and maintain the balcony. We hold that there

is evidence in the record that supports that Pier West POA assumed the duty of ordinary care,

which renders fact questions remaining on whether it breached that duty and whether it

proximately caused Lloyd’s damages.

       The standard of review that we apply to cases in which summary judgment has been

granted is well settled. Our court 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. 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 and inferences 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 of

material fact and that the moving party is entitled to 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. Summary

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

can be drawn from the facts presented. Id.




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       In order to prevail on a claim of negligence, the plaintiff must prove that the defendant

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

was the proximate cause of the plaintiff’s damages. Branscumb v. Freeman, 360 Ark. 171, 200

S.W.3d 411 (2004). The first issue in deciding whether there was actionable negligence is

whether Pier West POA owed any duty to Lloyd, and if so, what duty is owed. Young v.

Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). Duty is a concept that arises out of the

recognition that the relationship between individuals may impose on one a legal obligation

for the other. Yanmar Co. v. Slater, 2012 Ark. 36, 386 S.W.3d 439. The question of the duty

owed by one person to another is always a question of law and never one for the jury.

Kowalski v. Rose Drugs of Dardanelle, Inc., 2011 Ark. 44, 378 S.W.3d 109; Moses v. Bridgeman,

355 Ark. 460, 139 S.W.3d 503 (2003). We review questions of law de novo. Gulfco of La.

v. Brantley, 2013 Ark. 367, 430 S.W.3d 7.

       The first possible source of the imposition of duty of ordinary care arises as a duty to

a licensee. In Arkansas, for purposes of premises liability, there are three basic categories of

persons present on another’s property who may allege injury against the landowner: trespasser,

licensee, and invitee. Arkansas courts adhere to common law distinctions between the duties

owed to these three categories of persons. Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146

(1988). When determining whether a visitor qualifies as either an invitee or licensee, it is

important to look to the purpose of the visit and the property owner’s invitation. Slavin v.

Plumbers & Steamfitters Local 29, 91 Ark. App. 43, 207 S.W.3d 586 (2005).




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       A licensee is one who goes on the premises of another with the consent of the owner

for one’s own purposes and not for the mutual benefit of oneself and the owner. Heigle v.

Miller, 332 Ark. 315, 965 S.W.2d 116 (1998). Our supreme court has generally held that a

primarily social guest is a licensee. Id. An invitee, in contrast, is one induced to come onto

property for the business benefit of the possessor. Bader v. Lawson, 320 Ark. 561, 898 S.W.2d

40 (1995). There are two types of invitees: public and business. A public invitee is invited

to enter or remain on the property as a member of the public for a purpose for which

the property is held open to the public, such as a hospital or library. Lively v. Libbey Mem’l

Physical Med. Ctr., Inc., 311 Ark. 41, 841 S.W.2d 609 (1992). A business invitee is invited to

enter or remain on the property for a purpose directly or indirectly connected with the

business dealings of the possessor of the property. Id. Our supreme court has declined to

expand the definition of invitee beyond that of a public or business invitee to one whose

presence is primarily social. Heigle, supra; Bader, supra. As stated above, we hold that the trial

court was correct in its determination that Lloyd was a licensee. There remain no disputed

questions of fact on this issue, nor is there any other reasonable conclusion to be drawn except

that Lloyd was a licensee. We reject Lloyd’s argument that he was a public invitee.

       A landowner owes a licensee the duty to refrain from injuring him through willful or

wanton conduct, except that where the landowner discovers that a licensee is in peril, he has

a duty of ordinary care to avoid injury to the licensee. Bader, supra. That duty takes the form

of warning a licensee of hidden dangers if the licensee does not know or have reason to know

of the conditions or risks involved. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998).


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To constitute willful or wanton conduct, there must be deliberate intention to harm or an

utter indifference to, or conscious disregard of, the safety of others. Young v. Paxton, supra.

The duty to warn, however, does not extend to obvious dangers or risks that the licensee

should have been expected to recognize. Id. If, however, the landowner knows or has reason

to know of a condition on the premises that is not open and obvious and which creates an

unreasonable risk of harm to licensees, then it is under a duty to use ordinary care to make the

condition safe or to warn those licensees who do not know or have reason to know of the

danger. AMI–Civ. 1103. Heigle v. Miller, supra.

       The second possible source of the imposition of a duty of ordinary care arises where

a party contractually assumes the duty to maintain or repair premises. In Bartley v. Sweetser,

319 Ark. 117, 890 S.W.2d 250 (1994), our supreme court noted that since 1932, we have

adhered to the rule that a landlord is under no legal obligation to a tenant for injuries sustained

in common areas, absent a statute or agreement. Similarly, in Majewski v. Cantrell, 293 Ark.

360, 362, 737 S.W.2d 649, 651 (1987), our supreme court stated that Majewski was correct

that a lessor, under the common-law rule that Arkansas follows, owes no duty of repair of the

premises to the lessee; but it is also true that a landlord, who agrees to such repairs, can be held

liable for making those repairs in a negligent fashion. Majewski expanded the discussion,

holding that a landlord is subject to liability for physical harm caused to the tenant and others,

upon the leased property with the consent of the tenant or his subtenant, by a condition of

disrepair existing before or arising after the tenant has taken possession if: (1) the landlord has

contracted by a promise in the lease or otherwise to keep the leased property in repair;


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(2) the disrepair creates an unreasonable risk to persons upon the leased property, which the

performance of the landlord’s agreement would have prevented; and (3) the landlord fails to

exercise reasonable care to perform his contract. Id. at 362–63, 737 S.W.2d at 651. See also

Steward v. McDonald, 330 Ark. 837, 843 44, 958 S.W.2d 297, 300 (1997).

       While we acknowledge that Pier West POA may, or may not, be a typical landlord

as existed in Majewski, Bartley, and Steward, we believe that these cases are compelling

authority for the proposition that one who contracts or promises to repair and maintain

premises does so with the attendant responsibility to perform that duty with reasonable care.

       Further, a condominium association may be held to the landlord standard of care as to

common areas under its control. 62 Am. Jur. 2d § 25. In Schoondyke v. Heil, Heil, Smart &

Golee, Inc., 411 N.E.2d 1168, 1171–73 (Ill. 1980), the plaintiff was injured by slipping and

falling on snow and ice in a condominium parking lot. The plaintiff, a non-owner occupant

of a unit in the condominium, sued the condominium association, and the trial court granted

the condominium summary judgment. The issue was whether the condominium association

owed the plaintiff a duty. The bylaws of the condominium association provided that the

association would be responsible for snow removal. In overturning summary judgment, the

Schoondyke court stated:

       In the case at bar defendants [the condominium association] by their agreement
       with the unit owners as contained in the ‘Declaration of Condominium’ and
       ‘Condominium By-Laws,’ have assumed a duty of snow removal not imposed upon
       them by common law. . . . In the instant case, because defendants, by virtue of the
       Declaration of Condominium and Condominium By-Laws, have voluntarily assumed
       a duty of snow removal not imposed upon them by common law, we conclude that
       as a matter of law, defendants owed a duty to plaintiff herein to remove natural
       accumulations of snow and ice. We must also conclude, therefore, that the trial court

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       erred in granting defendants’ motion for summary judgment based upon the argument
       that defendants owed no duty to plaintiff.

       Arkansas Code Annotated section 18-13-108 (Repl. 2003) requires that horizontal

property regimes be governed by bylaws that are part of a master deed.2 The bylaws are

required to address, among other things, the form of administration as well as the upkeep of

the building and its general or limited common elements and services. Id. at subsections (b)(1)

and (b)(3). Further, bylaws of a voluntary association constitute a contract between the

association’s members that is binding on each member so long as the bylaws remain in effect.

See Diamante v. Dye, 2013 Ark. App. 630, 430 S.W.3d 196. Whether there exists such a

contract or promise by Pier West POA, to maintain or repair the common areas that carries

with it the duty to use ordinary care, is discussed below.

       The third possible source of the imposition of the duty of ordinary care arises where

a party voluntarily assumes that duty. Even if the bylaws do not contractually bind Pier West

POA to use ordinary care to repair and maintain the common areas, Pier West POA could

be charged with the duty of ordinary care if it voluntarily assumed that responsibility. As held

in Chatman v. Mills, 257 Ark. 451, 464, 517 S.W.2d 504, 512 (1975), “It is ancient learning

that one who assumes to act, even though gratuitously, may thereby become subject to the

duty of acting carefully, if he acts at all.” See also Yanmar, supra; Haralson v. Jones Truck Line,

223 Ark. 813, 270 S.W.2d 892 (1954). Thus, even where no duty arises, if a person

undertakes to act, they must do so carefully or they may be liable for negligence. Thomas v.


       2
       The Master Deed to Pier West Condominiums provides that it is a horizontal
property regime.

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Stewart, 347 Ark. 33, 60 S.W.3d 415 (2001); Steward v. McDonald, supra; Keck v. Am. Emp’t

Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). Like in Wilson v. Rebsamen Ins., Inc., 330

Ark. 687, 957 S.W.2d 678 (1997), here we have a situation where the degree of the

undertaking defines the scope of the duty of care owed to the third party.

       We examine in more detail the facts presented to the trial court.        Pier West

Condominiums is comprised of several buildings with individual residential condominium

units in each building. In the building designated as Unit D, there were six condominium

units, three upstairs and three downstairs. Scattered among the condominium buildings are

common areas or common elements such as corridors, stairways, entry/exit ways, and

structural components. Pier West POA admitted in its answer to the Second Amended

Complaint that the balcony to Unit D-4 from which Lloyd fell was a common area.3 Pier

West POA’s individual condominium unit owners are all members of the property owners

association and fractional owners of the common areas. Monthly dues are collected from each

unit owner for the purposes of upkeep and maintenance, and the bylaws provide that the unit

owners may be assessed for the costs of maintenance.

       The bylaws of Pier West POA go into great detail to separate the ownership and use

of the common areas from that of the individual condominium units and to separate the

responsibilities and obligations regarding the common areas from that of individual

condominium units.




       3
       The phrase “common area” and “common element” are used interchangeably herein.

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       •      Article VI provides that a unit owner shall have the exclusive ownership of his
              unit and shall have a common right to share, with the other co-owners, in the
              common elements of the property.
       •      Article VII provides that the common elements shall remain undivided and shall
              not be the object of a partition action.
       •      Article VIII provides that each co-owner may use the common elements if they
              do not hinder or encroach upon the lawful rights of other co-owners.
       •      Article XXI, section 7 provides that the Board of Administration of the POA
              has the exclusive right and duty to repair and provide maintenance of the common areas.
       •      Article XXI, section 8 provides that if the Board of Administration is required
              to secure or pay for maintenance or repairs of the common areas, the Board has
              the right to assess those costs to the owners of the units.
       •      Article XXXI, section 2 provides that there shall be no obstruction in the
              common areas and nothing shall be stored in the common areas without prior
              consent of the Board of Administration.
       •      Article XXXI, section 3 provides that nothing shall be done in any common
              area that would increase the rate of insurance for the common area and that no
              waste will be committed in the common area.
       •      Article XXXI, section 7 provides that nothing shall be altered or constructed
              in or removed from a common area, except by written consent of the Board
              of Administration; and finally,
       •      Article XXXII provides that the Board of Administration may enter any unit
              when necessary in connection with the maintenance for which the Board of
              Administration is responsible.

In addition to distinguishing the rights and duties of the unit owners vis-a-vis Pier West POA

regarding the common areas, the bylaws also require Pier West POA to provide insurance for

the common areas. Article XXI requires in section 3 that an insurance policy must be

acquired to insure the board of administration and the unit owners against any liability.

       To determine which maintenance or repairs should be performed at the

condominiums, Pier West POA routinely (typically quarterly) conducted meetings for that

purpose, as this authority is not vested in the individual unit owners. The minutes of these

meetings were recorded. There was a history of repairs and maintenance to the buildings and

common areas, including Unit D. The records indicate that between 2005–2012, Pier West

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POA had discussed, authorized, or had performed the following repairs or maintenance to

Unit D and nearby common areas including, but not limited to:

       •      replacement and repaint of wood, including exterior decking;
       •      repair of water leaks;
       •      replacement of edging;
       •      removal of accumulated water under the deck;
       •      repair of light poles;
       •      replacement of the flat roof;
       •      repair of broken boards and railings on the boardwalk;
       •      repair on two doors within Unit D; and
       •      notation of damage from sun and moisture on Unit D railings.

       On March 24, 2012, Lloyd was invited to a party at Unit D-4. The partygoers used

the accompanying upstairs balcony area. Lloyd leaned against, or lost his balance and fell into,

the balcony’s wooden railing. The railing collapsed, and Lloyd fell about twelve feet and

landed on his head.

       In his complaint, Lloyd alleged that Pier West POA was negligent in failing to properly

maintain and repair the balcony railing as needed, and further that the balcony railing was

unsafe and below minimum building code standards. In moving for summary judgment, Pier

West POA contended that as to a licensee like Lloyd, it owed only a duty of not injuring him

by willful or wanton conduct, or, if it knew or had reason to know that the railing created a

risk of harm, to use ordinary care to make the condition safe or warn Lloyd of its dangerous

condition. Pier West POA denied the existence of a duty or breach of either of these

potential duties. Pier West POA attached deposition testimony of Lloyd along with an

affidavit of Pier West POA’s board president, who denied any knowledge or reason to know

of any defect or problem with the balcony railing at Unit D-4.


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       In response, Lloyd asserted that Pier West POA failed to abide by standard building

codes on weight bearing of the railing by providing an engineer’s report as expert evidence

of noncompliance. Lloyd also focused on the undisputed facts that Pier West POA admitted

that it was obligated and had the exclusive duty and right to maintain the common areas of

the condominium, including the balcony and railings, borne out by its controlling bylaws,

records of repair, and collection of monthly property owner dues.

       Pier West POA did not deny that specific repairs and upgrades were made periodically,

and Pier West POA did not deny the history of maintenance and repairs at Unit D, some of

which are set forth above. Pier West POA also admittedly purchased a liability insurance

policy that provided coverage to protect Pier West POA and individual unit owners.

       There was additional evidence presented by Lloyd that Pier West POA should have

had knowledge of defects in this particular guardrail. Michelle Keever testified by deposition

that she informed the owner of Unit D-4, at some point prior to Lloyd’s fall, that the upstairs

balcony railing was loose, to which the owner replied, “We’ll try to get it taken care of.”

       The undisputed facts show that Pier West POA contractually forbade a unit owner to

do anything that could increase the liability or risk to any common area and unequivocally,

exclusively reserved the right and duty in its bylaws to maintain and repair the common areas.

It is clear that Pier West POA assumed such a duty, despite Pier West POA’s arguments to

the contrary. Pier West POA’s undertaking of this duty triggers fact questions as to whether

Pier West POA exercised reasonable care to perform its assumed duty. Because Pier West

POA contractually promised or voluntarily agreed to repair and maintain the common areas,


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we do not need to decide whether Pier West POA owed a duty of due care to Lloyd as a

licensee. We agree that summary judgment was inappropriate under these circumstances.

       Reversed and remanded.

       KINARD and GRUBER, JJ., agree.

       Jackson Law Firm, PA, by: Jim Jackson; Cullen & Co., PLLC, by: Tim Cullen; and Callis
L. Childs, PA, by: Callis Childs, for appellant.

       Elliott Law Firm, by: Jeffrey C. Elliott, for appellee.




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