Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Rodney Shanner and Rita Shanner v. United States of America
Case Number: 19-2764
Judge: Sarah E. Pitlyk
Court: United States Court of Appeals
For the Eighth Circuit
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
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.
sidewalk was obvious, the Government was not entitled to summary judgment
because Mr. Shanner was forced to encounter the uneven sidewalk to perform his
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
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
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.
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
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.
Outcome: For the foregoing reasons, we reverse the District Court’s entry of summary
judgment and remand for further proceedings consistent with this opinion.