Rodney Shanner and Rita Shanner v. United States of America

St. Louis, MO - Personal injury lawyer represented Plaintiffs - Appellants with alleging negligence and loss of consortium claims.

On March 4, 2015, Mr. Shanner was leaving the Central Arkansas Veterans

Healthcare System after visiting a hospitalized member of his congregation. Finding

his usual door blocked, he exited through a different one. As he exited, he was

looking out at other pedestrians and traffic when he tripped on the sidewalk, lost his

balance, and ultimately fell onto his right shoulder and face.

After bystanders helped Mr. Shanner into a wheelchair, he identified an

uneven part of the sidewalk as the cause of his fall. A hospital police officer who

reported to the scene and took Mr. Shanner's statement estimated that there was a

height difference of roughly half an inch between the slabs in the sidewalk at the

spot Mr. Shanner indicated.

The Shanners sued the United States in the United States District Court for

the Eastern District of Arkansas for negligence and loss of consortium. The

Government moved for summary judgment, arguing that the Shanners' claims failed

as a matter of law because the uneven sidewalk was open and obvious, and therefore

the Shanners could not prevail on a negligence claim as a matter of law. The District

Court agreed and granted the Government's motion for summary judgment.2





On appeal, the Shanners argue that the District Court erred in granting the

Government's motion because there was a genuine dispute as to whether the uneven

sidewalk was an obvious hazard. They argue further that, even if the uneven

2

The parties agree that the disposition of Mrs. Shanner's loss-of-consortium

claim on summary judgment depends on that of Mr. Shanner's negligence claim.

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sidewalk was obvious, the Government was not entitled to summary judgment

because Mr. Shanner was forced to encounter the uneven sidewalk to perform his

pastoral duties.3



II

We review a district court's grant of summary judgment de novo. Argenyi v.

Creighton Univ., 703 F.3d 441, 446 (8th Cir. 2013). We construe the facts in the

light most favorable to the nonmoving party—in this case, the Shanners—and give

them the "benefit of all reasonable inferences in the record.” Id. Summary judgment

is appropriate only if "there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

When analyzing actions brought under the FTCA, courts apply the substantive

law of the state in which the events giving rise to the complaint occurred. Little

White Man v. United States, 446 F.3d 832, 835 (8th Cir. 2006) (citing 28 U.S.C.

§ 1346(b)). The Shanners' FTCA claims are thus governed by Arkansas state law.

To prove that the United States was negligent under Arkansas law, the Shanners

must show that: (i) the United States owed Mr. Shanner a duty, (ii) the United States

breached that duty, and (iii) the breach was the proximate cause of Mr. Shanner's

injuries. Yanmar Co., Ltd. v. Slater, 386 S.W.3d 439, 449 (Ark. 2012). Whether a

particular duty is owed is a question of law for the court. D.B. Griffin Warehouse,

Inc. v. Sanders, 76 S.W.3d 254, 262 (Ark. 2002).

The parties agree that Mr. Shanner was an invitee of the hospital at the time

of his fall. Under Arkansas law, a property owner has "a duty to exercise ordinary

care to maintain [the] premises in a reasonably safe condition for the benefit of an

invitee.” Delt v. Bowers, 249 S.W.3d 162, 164-65 (Ark. Ct. App. 2007) (citing

Conagra v. Strother, 5 S.W.3d 69 (Ark. Ct. App. 1999)). Where, as here, an invitee

is injured, "[t]he property owner is liable if he or she has superior knowledge of an

3

Because we find that there is a genuine factual dispute as to whether the

uneven sidewalk was obvious, we do not reach whether Mr. Shanner was forced to

encounter it.

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unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does

not or should not know.” Hope Med. Park Hosp. v. Varner, 568 S.W.3d 818, 822

(Ark. Ct. App. 2019). But "[a]n Arkansas landowner generally does not owe a duty

to an invitee if a danger is known or obvious.” Dollar Gen. Corp. v. Elder, 600

S.W.3d 597, 603 (Ark. 2020).



On summary judgment, the Government argued that Mr. Shanner could not

show negligence on the part of the hospital because the uneven sidewalk was "open

and obvious.” Arkansas law holds that a condition is obvious if "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.”

Shook v. Love's Travel Stops & Country Stores, Inc., 536 S.W.3d 635, 639 (Ark. Ct.

App. 2017) (quoting Van DeVeer v. RTJ Inc., 101 S.W.3d 881, 885 (Ark. Ct. App.

2003)). In support of its claim, the Government pointed out to the District Court

that, after the accident, both Mr. Shanner and the responding police officer observed

where the sidewalk was uneven. The Government also cited the testimony of a

hospital safety specialist that the sidewalk "obviously has the potential to cause

someone to trip.”

In response, the Shanners argued that summary judgment was not proper

because whether the uneven sidewalk was an obvious hazard was in dispute. In

support, they collected evidence from the record that a reasonable person in Mr.

Shanner's position would not have noticed the uneven sidewalk. Specifically, they

noted that the same hospital safety specialist relied on by the Government had also

testified that "there was nothing about the sidewalk that said to [him], wow, that's a

tripping hazard.” And they cited an engineer who, after inspecting the site of the

fall, indicated that black material in the jointed area between slabs made the

unevenness of the sidewalk less noticeable than it might otherwise have been, and

stated that he was unsure if he would have noticed the hazard if he had not been

looking for it.



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Where a plaintiff has submitted evidence that a reasonable person in his

position would not have been aware of a dangerous condition, Arkansas courts have

found summary judgment inappropriate. See, e.g., Noel v. Cox, 570 S.W.3d 510,

515 (Ark. Ct. App. 2019) (dispute over the obviousness of a hazard "present[ed] an

issue of fact not properly resolved by summary judgment”); Shook, 536 S.W.3d at

639 (where the plaintiff "presented evidence that a reasonable person in [plaintiff's]

position . . . would not have recognized or appreciated the risk,” "the record presents

an issue of fact not properly resolved by summary judgment”). This case is such a

case. The Shanners made a showing that a reasonable person in Mr. Shanner's

position would not have recognized the danger posed by the uneven sidewalk.

Construing the factual record in the light most favorable to the Shanners, there was

a genuine dispute of material fact about whether the uneven sidewalk was obvious.



In resolving the obviousness question in favor of the Government, the District

Court relied on the fact that, after the incident, both Mr. Shanner and the

investigating police officer were able to identify the uneven portion of the sidewalk.

During the pendency of this appeal, the Supreme Court of Arkansas has clarified

that whether a hazard is identifiable in a targeted after-the-fact search is not

dispositive of whether the hazard would have been obvious to someone exercising

ordinary caution in the conduct of his or her normal activities. See Elder, 600

S.W.3d at 604 ("[A]n 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.”). Although the after-the-fact examination in Elder was conducted by an

expert, not a layperson, the status of the examiner is not decisive. It defies

experience and common sense to hold a person exercising ordinary care while going

about his or her normal activities to the same epistemic standard as someone who is

searching for the cause of an accident after it has taken place.

Because after-the-fact recognition of the uneven sidewalk is not dispositive of

what would have been apparent to a reasonable person "exercising ordinary

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perception, intelligence, and judgment,” Shook, 536 S.W.3d at 639, and the Shanners

produced evidence that the uneven sidewalk would not have been apparent to such

a person, the District Court erred in granting summary judgment to the Government

on that issue.

The District Court further held that even if the sidewalk was not obvious, the

Government was entitled to summary judgment because there was no evidence the

hospital was aware of the hazardous condition or should have anticipated an

unreasonable risk of harm. It is true that, under Arkansas law, invitors owe a duty

of care only when they know of, or "by the exercise of reasonable care would

discover,” a dangerous condition on the property. Van DeVeer, 101 S.W.3d at 883-

84 (quoting Restatement (Second) of Torts, § 343 (1965)). But that issue was not

raised by either party during the summary judgment proceedings; therefore, the

District Court should not have entered summary judgment on it. Heisler v. Metro.

Council, 339 F.3d 622, 631 (8th Cir. 2003) ("We have repeatedly held that in the

Eighth Circuit, a district court commits reversible error when it grants summary

judgment on an issue not raised or discussed by the parties.”). And although this

Court may affirm a grant of summary judgment on any ground supported by the

record, Jacobson v. McCormick, 763 F.3d 914, 916-17 (8th Cir. 2014), the record

here is underdeveloped as to whether the hospital would have discovered the uneven

sidewalk "by the exercise of reasonable care.” Accordingly, we cannot affirm

summary judgment on that basis.

For the foregoing reasons, we reverse the District Court’s entry of summary

judgment and remand for further proceedings consistent with this opinion.