                                Cite as 2017 Ark. App. 394


                ARKANSAS COURT OF APPEALS
                                  DIVISIONS III & IV
                                    No. CV-16-305
                                             Opinion Delivered   June 21, 2017

BRYAN L. POWELL, IN HIS
CAPACITY AS SPECIAL                          APPEAL FROM THE WASHINGTON
ADMINISTRATOR OF THE ESTATE                  COUNTY CIRCUIT COURT
OF AALYAH JERWAN, DECEASED,                  [NO. 72-15-1495]
AND
JELINA LEWIS, IN HER CAPACITY                HONORABLE DOUG MARTIN,
AS SPECIAL ADMINISTRATRIX OF                 JUDGE
THE ESTATE OF AALYAH JERWAN,
DECEASED                                     AFFIRMED

                          APPELLANTS
V.

ISC NORTH, LLC, ET AL.

                             APPELLEES


                            DAVID M. GLOVER, Judge

       This appeal arises from the trial court’s summary judgment against consolidated

complaints filed on behalf of the estate of a young girl who drowned in a pond located in

Washington County. We affirm the dismissal.

       On September 1, 2012, Aalyah Jerwan drowned in a retention pond located on

private property. She was twelve years old at the time. Two lawsuits were filed with respect

to Aalyah’s death—one by Special Administratrix Jelina Lewis (CIV-2015-1485-4) and the

other by Special Administrator Bryan L. Powell (CIV-2015-1495-1). The original

complaints were filed in August 2015 against ISC North, LLC; ISC South, LLC; Joe
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Edwards; Joe Edwards, as trustee of the Joe Edwards Revocable Trust, as amended and

restated u/t/d November 5, 2007; and several other named defendants. The complaints

were virtually identical and alleged the defendants were responsible for the wrongful death

of Aalyah. The complaints were based on the attractive-nuisance doctrine and negligence.

The administrators of Aalyah’s estate subsequently moved to consolidate the two cases, and

the court allowed it.

       On October 19, 2015, after the consolidation order had been entered, the defendants

answered the complaint and moved to dismiss the case pursuant to Rule 12(b)(6) of the

Arkansas Rules of Civil Procedure. They contended the complaint failed to state a claim

upon which relief could be granted because a pond is not an attractive nuisance under

Arkansas law, and as a result, there was no legal duty owed to Aalyah. They further asserted

that any cause of action would be barred by landowner immunity under Arkansas Code

Annotated section 18-11-305 (Repl. 2015).

       On November 16, 2015, the administrators amended their complaint to allege that

a partially submerged truck-bed liner located at the edge of the pond had created a trap or

hidden inherent danger and that defendants were negligent in placing the truck-bed liner

there, or at least in allowing the submerged truck-bed liner to remain in the pond, when

they knew or should have known that children went onto the property and played in and

around the pond where the truck-bed liner was located. On the same date, the

administrators responded to the defendants’ motion to dismiss. They submitted supporting

documents (photographs of the pond and truck-bed liner, a police report, and defendants’

answers to requests for admission), explained how they had stated claims for which relief


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could be granted under Arkansas law, and stated that a jury should determine any

unanswered material fact questions that this case presented.

       On November 24, 2015, the defendants filed an answer and moved to dismiss the

amended complaint pursuant to Rule 12(b)(6). They argued that “because a pond and truck

bed liner are not attractive nuisances under Arkansas law,” and “[i]n addition, any cause of

action is barred by landowner immunity” pursuant to Arkansas Code annotated section 18-

11-305, the case should be dismissed.

       On December 7, 2015, the administrators responded to the motion to dismiss the

amended complaint, essentially reasserted their position that whether the truck-bed liner

functioned as a trap or hidden danger was a question for the jury, and explained why the

recreational-use immunity statute did not apply.

       On January 14, 2016, the trial court dismissed the amended complaint, “after having

reviewed the pleadings and briefs filed by the parties, based on the reasons set forth in the

motion and supporting briefs.” This appeal followed, with the administrators contending

the trial court erred in dismissing their consolidated complaints because genuine issues of

disputed material facts existed regarding the application of the attractive-nuisance doctrine

and the alleged negligence of appellees; they also contested whether the recreational-use

statute could apply under these circumstances. We affirm the dismissal.

       According to the facts alleged in the pleadings and exhibits the administrators

submitted with their responses to the motions to dismiss, on the day Aalyah drowned, she

was playing “tag” with other children on and around a truck-bed liner that was partially

submerged in the retention pond. She was “tagged” by a playmate, fell in the deeper water


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surrounding the liner, and drowned. The pond was located in a vacant lot about 700 feet

from the apartment complex where Aalyah lived in Springdale, Arkansas. According to the

administrators’ theory of the case, Aalyah and the other children were attracted to the truck-

bed liner, and the “bed liner conveyed a definitive message, and that message was incorrect,

misleading and deadly to Aalyah,” i.e., that the pond was shallower near the bed liner than

it actually was. Aalyah’s body was recovered from the pond in six to seven feet of water

approximately fifteen feet north of the spot on the south bank where the truck-bed liner

was located. According to a police report, which was not objected to when submitted in

response to the motion to dismiss, there were footprints around the area where the truck-

bed liner was located, and the water near the liner was muddier than the rest of the pond.

       The administrators alleged that the defendant landowners negligently allowed a

partially submerged truck-bed liner to remain in the pond, creating the illusion that the

pond was shallower than it really was, and that Aalyah was not aware of the hazardous

condition and ultimately fell into the deep area and drowned. As we have mentioned, they

asserted liability based on the attractive-nuisance doctrine and general negligence.

       The summary disposal of this case was initiated with a Rule 12(b)(6) motion. The

order of dismissal merely states: “[A]fter having reviewed the pleadings and briefs filed by

the parties, based on the reasons set forth in the motion and supporting briefs, the court

finds that the Motion to Dismiss Amended Complaint should be and hereby is granted.”

The parties agree, however, that the Rule 12(b)(6) motion was converted to an issue of

summary judgment because the trial court was also presented with evidentiary items that

were not expressly excluded.


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       In reviewing summary-judgment cases, 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 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. DeKros, 2014 Ark. App. 254, 435 S.W.3d 19.

       For the first point of appeal, the administrators contend the trial court erred in

concluding the attractive-nuisance doctrine did not apply to this case. We disagree.

       The administrators contend that they were pursuing two “independent but

complementary elements” of the attractive-nuisance doctrine: 1) that the bed liner itself,


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resting on the pond, was an attractive nuisance and 2) that the pond contained a trap or

hidden danger in the form of the bed liner and its positioning on the pond that allowed

recovery as an attractive nuisance. In other words, this case does not involve a body of water

“by itself”; it involves an additional element of attraction (the liner), and it also involves a

hidden danger or trap (the liner). We are not persuaded that the truck-bed liner itself was

the attractive nuisance. Therefore, we will concentrate on the liner/pond combination

because that is what this case is really about.

       In Carmichael v. Little Rock Housing Authority, 227 Ark. 470, 472, 299 S.W.2d 198,

199 (1957), our supreme court explained the attractive-nuisance doctrine:

       Broadly stated, the doctrine embraces the proposition that one who maintains upon
       his premises a condition, instrumentality, machine, or other agency which is
       dangerous to children of tender years by reason of their inability to appreciate the
       peril therein, and which may reasonably be expected to attract children of tender
       years to the premises, is under a duty to exercise reasonable care to protect them
       against the dangers of the attraction.

The Carmichael court was confronted for the first time with the issue of “whether the

attractive nuisance doctrine [was] applicable to a pond under a situation similar to that

presented here.” Id. The pond in Carmichael had existed for at least fifty years; it was lined

with sweet gum trees and smaller willow trees; there was a large rock at the eastern edge;

small fish lived in the pond; it was unenclosed and children from the heavily populated area

congregated there in the shade of the trees and on the large rock to watch and throw rocks

at the fish; and while parents in the area cautioned their children against playing around the

pond, they had difficulty keeping them away. The court explained that the

       weight of authority in this country is to the effect that ponds, lakes, streams,
       reservoirs, and other bodies of water do not constitute an attractive nuisance in the
       absence of any unusual element of danger. See 56 Am. Jur., Waters, Sec. 436, where

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       the textwriter further says: ‘In some cases, the view has been taken that the proprietor
       may be held liable where some additional or unusual element of danger is involved
       in the situation as where the pond or pool is in close proximity to a highway or a
       playground, or where it is located in an urban or densely populated community, but
       the weight of authority appears to hold to the contrary, except where the facts bring
       the case within the rule respecting pitfalls or hazards adjacent to highways.’

        Since water hazards exist everywhere, the tendency of a majority of the courts which
       recognize the attractive nuisance doctrine under other circumstances, is to refuse to
       apply it to permit recovery for the drowning of a child in a pond or other body of
       water unless it constitutes a trap or there is some other hidden inherent danger.

Id. at 473, 299 S.W.2d at 200 (citations omitted). The court concluded that since the

evidence indicated they were dealing with a natural condition in the case at bar, it was

unnecessary to determine whether the court would subscribe to the minority view, in which

“a few jurisdictions hold that an ordinary pond, artificially created, can constitute such an

attractive nuisance as to impose liability on the landowner for the drowning of a child

therein.” Id. at 474, 299 S.W.2d at 200. The court distinguished its earlier case of Brinkley

Car Works & Manufacturing Co. v. Cooper, 60 Ark. 545, 31 S.W. 154 (1895), explaining that

it “involved unusual elements of danger and artificial features which point up the natural

characteristics of the pond involved in the instant case. This pond [in Carmichael] is not

unusually dangerous and contained no trap or hidden hazard which the immature mind

would be unlikely to appreciate.” Carmichael, 227 Ark. at 474, 299 S.W.2d at 200–01.

       In the Brinkley case, the court reversed a plaintiff’s judgment and remanded the case

for a new trial based on erroneous instructions given to the jury. The surrounding facts of

the six-year-old plaintiff’s scalding injuries were in part:

       The appellee, who was about six years old, play[ed] around it, walked into the water,
       and was scalded.




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              It was shown that the mill and the pool were on the private grounds of the
      appellant, and were about 300 feet from the nearest street or traveled way in the
      town of Brinkley. It was also shown that children sometimes played, on Sundays, on
      the pile of sawdust at the mill, which was about 150 feet from the water; that this
      reservoir might have been covered without inconvenience. There was some
      evidence tending to show that children were not allowed to play around the sawdust
      pile, and that they had not, before the day of the injury, ever been seen at the pool;
      that the pool was partially covered with bark, but that the water was clear, and could
      be seen; that no pathway ran over these grounds. It was not alleged in the complaint,
      or shown in the evidence, that this pool of water was known to children before the
      day of the injury, or that it or its immediate surroundings were attractive to children.

              The complaint alleged “that defendant negligently and carelessly failed and
      neglected to cover and [e]nclose said pit, or post any notices or sign indicating that
      it contained boiling water, but negligently and carelessly and wantonly deposited in
      said pit pieces of bark from the logs or timber brought to its yards, which said pieces
      of bark congregated and floated so thickly on the top of the boiling water in said pit
      that persons passing near it could not see the water in said pit,” and then that the
      plaintiff, not being able to see the water, walked into it, and was scalded.

             It appeared that when the watchman let the water out of the boiler his little
      son and the plaintiff were present, and that he cautioned them not to go about the
      water, as it was hot.

60 Ark. at 546, 31 S.W. at 154. The Brinkley court went on to explain:

              The jury should have been instructed in this case that in determining whether
      the defendant was liable or not for the injury received by the child, they should
      consider whether it appeared from the evidence that the pool of water in which he
      was scalded was attractive to children of the age of appellee, and whether this was or
      ought to have been known to the appellant, and whether, from all the circumstances
      in evidence, it appeared that the appellant, as a reasonably prudent person, ought to
      have anticipated that children of the age of the plaintiff would probably receive such
      injury as the plaintiff did receive, by reason of the situation and condition of the pool
      of water at the time the plaintiff received his injury. Children are required to exercise
      only such care and prudence as may reasonably be expected of those who possess
      only the intelligence and maturity of judgment which they possess. The owner of
      land is not required to provide against remote and improbable injuries to children
      trespassing thereon. But he is liable for injuries to children trespassing upon his private
      grounds, when it is known to him that they are accustomed to go upon it, and that,
      from the peculiar nature, and exposed and open condition, of something thereon,
      which is attractive to children, he ought reasonably to anticipate such an injury to a
      child as that which actually occurs.


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               “It would put the proprietors of real estate under an oppressive burden, to
       make them insurers against remote and improbable injuries to children while
       trespassing thereon.”

60 Ark. at 548–49, 31 S.W. at 155 (citations omitted).

       In Jones v. Comer, 237 Ark. 500, 374 S.W.2d 465 (1964), our supreme court affirmed

the grant of summary judgment in a situation involving three children who had drowned

in a pond. The case highlights the general rule that bodies of water do not constitute an

attractive nuisance in the absence of any unusual element of danger; noting, however, that

if a pond or other body of water constituted a trap or there was some other hidden inherent

danger, the attractive-nuisance doctrine would apply. The court considered whether a bag

swing located 150 feet north of the pond or an old boat located on the opposite shore of

where the bodies were found constituted traps or hidden dangers. The court noted that

nothing indicated the boat or bag swing contributed to the tragedy but that “even if” it

could be said they were instrumental in attracting the children to the pond to play, “still

that would not be sufficient to make applicable the attractive nuisance doctrine.” Id. at 505,

374 S.W.2d at 468. The opinion then listed several cases from other jurisdictions holding

the attractive-nuisance doctrine inapplicable—some of which involved floating rafts, boards,

logs, and planks that children slipped off and into the water. The supreme court concluded

that the facts of the Comer case did not bring it within the attractive-nuisance doctrine and

affirmed the summary judgment.

       This appeal boils down to whether the partially submerged truck-bed liner

sufficiently obscured the nature of the otherwise open-and-obvious pond to create a jury

question on whether it constituted a dangerous instrumentality that was attractive to


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children and about which they could not have realized or appreciated the danger. We have

concluded it did not, and the trial court did not err in dismissing this case. The truck-bed

liner, although partially submerged, was not hidden, and it did not mask the inherently

dangerous nature of the pond, which was open and obvious.

       For their second point of appeal, the administrators contend that the trial court also

erred in dismissing the complaint’s negligence claims. We disagree.

       There are three general categories of entrants upon the land of another: trespassers,

licensees, and invitees. Bader v. Lawson, 320 Ark. 561, 898 S.W.2d 40 (1995). The

administrators of Aalyah’s estate argue that questions of fact existed regarding her status as a

licensee because the defendants knew or reasonably should have known that children

frequented the premises because the pond was located approximately 700 feet from an

apartment complex where young children played, and the land owners did nothing to

prevent, deter, or keep the children off the premises. They further argue that these questions

of fact relate to the duty owed to Aalyah because if the jury were to find that she was a

licensee on the property, the duty owed would be reasonable care and there would also be

questions of fact regarding whether the property owners breached their duty to her by not

taking measures to secure the area.

       The problem here is that even if the jury were to conclude that Aalyah was a licensee

rather than a trespasser, a question we do not decide, the facts presented to the trial court

still support its dismissal of the negligence claims. A licensee is one who goes upon 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. Bader, supra. No duty is owed a licensee until the


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licensee’s presence on the property is known or reasonably should be known, Kirkwood v.

Dial, 2013 Ark. App. 536, and once the presence is known, the duty owed to the licensee

is to refrain from injuring the licensee through willful or wanton conduct. Id. To constitute

willful or wanton conduct, there must be a course of action that shows a deliberate intent

to harm or utter indifference to, or conscious disregard of, the safety of others. Id. If the

landowner knows or has reason to know of a condition on the premises that is not open

and obvious and that creates an unreasonable risk of harm to the licensee, the landowner is

under the duty to use ordinary care and to make the condition safe or to warn those licensees

who do not know or have reason to know of the danger. Id.

       Here, the proof submitted to the trial court did not establish that the landowners

knew or should have known Aalyah and the other children were on the property.

Moreover, even if that fact had been established, for the reasons previously discussed with

respect to the inapplicability of the attractive-nuisance doctrine, there was no condition on

the land that was not open and obvious. Consequently, even if Aalyah were found to be a

licensee, the duty owed to her was to refrain from causing her injury by willful or wanton

conduct. No allegations of willful or wanton conduct by the defendant landowners were

pleaded. No proof of such conduct was presented to the trial court. We therefore find no

basis to reverse the trial court’s dismissal of the negligence claims.

       Finally, because we have found no error in the trial court’s judgment against the

attractive-nuisance and negligence claims for the reasons previously discussed, it is not

necessary to address the landowners’ alternative contention that those claims would

nevertheless fail under the immunity provided to landowners under Arkansas Code


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Annotated section 18-11-305, which is part of the Arkansas Recreational Use Statutes. Ark.

Code Ann. §§ 18-11-301 to -307.

       Affirmed.

       ABRAMSON, HARRISON, and HIXSON, JJ., agree.

       VIRDEN and MURPHY, JJ., dissent.

       BART F. VIRDEN, judge, dissenting. I respectfully dissent because I believe that

the trial court erred in granting summary judgment regarding the issue of the presence of a

trap or hidden and inherent danger, and I disagree with the conclusion that there was no

evidence to support the existence of a duty owed by ISC to Aalyah Jerwan.

                                    I. Attractive Nuisance

       I agree with the majority that the crux of this appeal is whether the submerged truck-

bed liner obscured the nature of the retention pond; however, I believe that the appellants

presented facts sufficient to give rise to a question for the jury regarding whether the

submerged truck-bed liner constituted a dangerous instrumentality that was attractive to

children and about which they could not realize the danger.

       The majority states that the truck-bed liner was partially submerged, though not

entirely hidden and that “it did not mask the inherently dangerous nature of the pond,

which was open and obvious.” Herein lies the substance of this dissent: whether the partially

visible truck-bed liner, which created an ideal place for children to play, was the condition

to which the children were specifically attracted, and whether the truck-bed liner created

the dangerous illusion of shallow water where the water was deep—a hidden danger that




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was not open and obvious. I believe that the appellants provided sufficient proof to raise

that question to a jury.

       Many of the following facts are stated in the majority opinion; however, they bear

repeating. It is undisputed that the Crutcher Street Apartments, where many children live,

are located about 700 feet from the pond. Appellants presented photographs showing the

bed liner and the deceptively shallow appearance created by the bed liner. A police-report

transcript of the call requesting that a water rescue was needed sets forth that “[t]here is a

truck-bed liner over here, looks like they were playing on it.” Another police report states

that Aalyah’s body was found in six to seven feet of water, fifteen feet north of the spot on

the south bank where the bed liner was positioned. The officer stated that the pond was

large and murky, particularly so around the truck-bed liner. In the report, the officer noted

footprints around the bed liner. Another report sets forth that “by all accounts” the children

were playing tag in the shallow edge of the water. There were differing accounts of how

Aalyah came to fall into the deeper water; however, any discrepancy in the testimony would

be for the jury to weigh. See Aronson v. Harriman, 321 Ark. 359, 374, 901 S.W.2d 832, 840

(1995) (It is within the province of the jury to weigh the credibility of the witnesses.).

       The majority holds that “the truck-bed liner, although partially submerged, was not

hidden, and it did not mask the inherently dangerous nature of the pond, which was open

and obvious.” By contrast, I would hold that a reasonable conclusion a jury could reach is

that the partially submerged truck-bed liner constituted a hidden trap or danger by creating

the illusion of safe, shallow water where the water was deep and that the truck-bed liner

itself was specifically sought out by the children playing on the lot.


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       I cannot foresee what a jury would conclude; I can only say that it is the province of

a jury to decide the questions raised by the facts of this case. Given that reasonable minds

could differ as to the conclusions that can be drawn from the facts presented, summary

judgment should not have been granted in regard to the attractive nuisance claim.

                                          II. Negligence

       The majority states that even if the jury had concluded that Aalyah was a licensee

rather than a trespasser, the facts presented to the trial court still support its dismissal of the

negligence claims. I respectfully disagree with this holding.

       Appellants presented sufficient evidence to support the existence of a duty owed by

ISC to Aalyah. I will base my discussion of negligence on the assumption that she was a

licensee rather than a trespasser, as I believe it is clear that a jury could find that Aalyah was

a licensee.

       It is helpful to restate the duty of care owed to a licensee. In Bader v. Lawson, 320

Ark. 561, 564–65, 898 S.W.2d 40, 42–43 (1995), our supreme court set forth that

       [a] landowner owes a licensee the duty to refrain from injuring him or her through
       willful or wanton conduct. To constitute willful or wanton conduct, there must be
       a course of action which shows a deliberate intention to harm or utter indifference
       to, or conscious disregard of, the safety of others. If, however, a landowner discovers
       a licensee is in peril, he or she has a duty of ordinary care to avoid injury to the
       licensee. The 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.

(Emphasis added.)

       Based on the facts presented, the owners of the vacant lot should have known that

children, who live so close by, would come onto the premises. The truck-bed liner located

on the south bank of the retention pond presented a danger that was not open and obvious


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to licensees who went onto the property, as discussed above. Knowing that children could

be in peril because of this hidden, dangerous condition, the owners had a duty to warn them

of it. All parties agree that there was no fence blocking off the area, and no warning signs

had been posted. These facts are sufficient to show that ISC negligently breached its duty

of care to Aalyah. The appellants presented a prima facie case of negligence, and the trial

court erred in dismissing the claim.

       Last, I would like to note that discovery was ongoing at the time the motion to

dismiss was filed, and I believe that the appellants were deprived of the opportunity to fully

develop the facts of this case when summary judgment was granted.

       I respectfully dissent.

       MURPHY, J., joins.

       Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; Robinson Law Firm,

L.L.C., by: Jon P. Robinson; and Masri Law Firm, L.L.C., by: Ziad Masri, for appellants.

       Friday, Eldredge & Clark, LLP, by: Clifford W. Plunkett, for appellees.




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