Allen v. Nature Conservancy

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

STEPHEN R. ALLEN, as Administrator

of the Estate of J.R.A., a Minor, Deceased PLAINTIFF

VS. CASE NO. 4:23-CV-661-JM

THE NATURE CONSERVANCY;

CLAYTON WORD; and

FEDERAL INSURANCE COMPANY DEFENDANTS

ORDER

This case arises out of the tragic drowning death of seven-year old J.R.A. Stephen Allen

is the father and administrator of his son’s estate. He named three defendants in this wrongful

death and survival action: The Nature Conservancy (“TNC”); one if its former employees,

Clayton Word; and Federal Insurance Company (“Federal”). Pending are Plaintiff’s motion to

remand, TNC and Word’s motion to dismiss, and Federal’s motion to dismiss. All three are ripe

for decision.

Background Facts1

The Allen family was on a family trip in when they discovered the Lydalisk Bridge over

the Middle Fork of the Red River in Stone County, Arkansas. This is a concrete low-water bridge

with ten culverts to allow water to flow through, also referred to as a vented dam. The morning

of June 19, 2021, the family noticed that water was flowing about four inches over the bridge.

The culverts were submerged and barely visible. J.R.A. entered the river on the inlet side of the

culverts, staying close to his mother. Shortly thereafter and without warning, he was pulled into

one of the culverts by the current where he became trapped. Plaintiff was able to free his son

after a period of about ten minutes, but he died the following day. There were no posted signs or

1 Taken from the complaint (Doc. No. 2).

other warnings regarding underwater currents.

The Nature Conservancy is a non-profit corporation that owned the undeveloped and

unenclosed tracts of land on both sides of the Middle Fork of the Red River where the accident

occurred. The Bridge existed on the land when it was purchased by TNC in February of 2019 as

part of County Road 195. In April of 2021, TNC commissioned site reviews of the Lydalisk

Bridge and another low-water vented bridge on nearby land that it owned, the Alberg Bridge.

The site reviews were performed by an engineer with the West Tennessee River Basin Authority.

Plaintiff alleges that Clayton Word was the project manager of “the projects being undertaken” at

both bridges. (¶ 38).

The engineer’s site report of the Alberg Bridge was completed in May 2021, the month

before the accident. (Doc. No. 2, p. 25). In addition to expressing ecological concerns about the

structure of the bridge, the report also warned that “the existing pipes also present a safety

concern for anyone using the area for recreation” with “the inlet for the pipes is often submerged

and approach velocities near the pipes are enough to pull a person in to the pipe flow.” (Id. ¶ 40).

The report also stated that “at least one case of [a person being pulled into the pipe flow] was

reported by local fishermen.” (Id. ¶ 42). The site report for the Lydalisk Bridge was completed in

August 2021. It contained the same concerns for the danger of the inlet pipes to swimmers and

reported the occurrence of J.R.A.’s fatal accident.

Plaintiff filed this action in the Circuit Court of Pulaski County, Arkansas where his

family resided at the time of the accident. Defendants filed a notice of removal asserting federal

subject matter jurisdiction on the basis of diversity. 28 U.S.C. 1332(a). This requires that the

amount in controversy exceed $75,0002 and that “[n]o plaintiff can be a citizen of the same state

2 It is undisputed that the amount in controversy exceeds the threshold requirement.

as any defendant.” M & B Oil, Inc. v. Federated Mut. Ins. Co., 66 F.4th 1106, 1109 (8th Cir.

2023).

Motion to Remand

The Court must first determine if it has subject matter jurisdiction. It is Defendants’

position that while Word is a resident of Arkansas as is Plaintiff, he was fraudulently joined to

destroy diversity. The issue before the Court is whether Defendants have met their burden of

proving that Plaintiff’s claim against Word has “no reasonable basis in fact and law.” Halsey v.

Townsend Corp. of Indiana, 20 F.4th 1222, 1226 (8th Cir. 2021) (quoting Filla v. Norfolk S. Ry.

Co., 336 F.3d 806, 810 (8th Cir. 2003)).

Plaintiff’s sole claim against Word is for negligence. The complaint alleges that Word

was TNC’s project manager and had “overall responsibility” for certain evaluations, analyses,

and construction work to be performed on the Lydalisk Bridge where J.R.A. drowned. Plaintiff

alleges that the engineering analyses and resultant bridge reports expressly warned Word about

the existence of safety concerns due to the often-submerged culvert inlets that were strong

enough to pull a person into the culvert. Plaintiff also alleges that Word failed to post any

warnings after being made aware of the dangers, and Arkansas law imposed a duty on him as a

person with superior knowledge of the danger posed by the bridge.

In response to Plaintiff’s motion to remand, Defendants submitted the affidavit of Jeff

Fore, Word’s supervisor at the time of the accident. (Doc. 27-1). Fore stated that Word had “no

role in the stewardship and management” of the subject property, or in any of TNC’s property, in

his role as River Conservation Manager. He expressly contradicts Plaintiff’s allegation that Word

had overall responsibility for the Lydalisk Bridge and denies that Word could have taken any of

the safety measures suggested by Plaintiff.

Plaintiff takes the position that his complaint contains sufficient allegations to establish

that Word owed a duty to J.R.A. He does not submit any evidence in support of either his motion

to remand or his response to the motion dismiss, which he incorporates. Plaintiff argues he is

entitled to the benefit of the doubt, that the allegations of his complaint must be taken as true at

this stage. But that is not the case when, as here, the jurisdictional challenge is of a factual

nature rather than a facial challenge. Branson Label, Inc. v. City of Branson, Mo., 793 F.3d 910,

915 (8th Cir. 2015) (In a factual challenge, the nonmoving party does “not enjoy the benefit of

the allegations in its pleadings being accepted as true.”). The Court in this instance is required to

“weigh the evidence and satisfy itself . . . of its power to hear the case.” Osborn v. United

States, 918 F.2d 724, 730 (8th Cir. 1990) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n,

549 F.2d 884, 891 (3d Cir. 1977)). This includes consideration of affidavits and other evidence

outside the pleadings. Branson Label, 793 F.3d at 914.

In his motion to remand, Plaintiff argues several cases to support his claim that Word

owed a duty to J.R.A. under Arkansas law. First, he cites to Stiewel v. Borman, 37 S.W. 404

(Ark. 1896) for the proposition that there is “no sound reason why a person who, acting as

principal, would be individually liable to third persons for an omission of a duty, becomes

exempt from liability for the same omissions of duty because he was acting as servant or agent.”

Id. at 406. However, both Stiewel and the 1894 Alabama Supreme Court case from which

Plaintiff’s quote is taken3 gave that opinion in the context of an agent “who has the complete

control and management of the property.” Stievel at 405. Defendant has established by affidavit

that Word had no control over the property.

Next Plaintiff cites to Watkins v. Arkansas Elder Outreach of Little Rock, Inc., 420

3 Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611, 16 So. 620 (1894).

S.W.3d 477 (Ark. 2012) to argue that an employee can have personal liability for torts

committed in the course and scope of his employment as long as the employee was “personally

involved in the events surround an injury.” In Watkins, a nursing home administrator was granted

summary judgment on the evidence that she was never personally involved in any way in the

care and treatment of the resident that was the subject of the wrongful death action. Similarly,

through the affidavit of Jeff Fore, Defendants have established that Word was not personally

involved in the stewardship of the Lydalisk Bridge.

Finally, Plaintiff relies on Missouri Pac. R. Co. v. Lemons, 127 S.W.2d 120 (Ark. 1939)

for the proposition that a person with superior knowledge of a danger has a duty to warn a person

who is unaware of the danger. His reliance is misplaced. Lemons involved the last clear chance

doctrine and the relative duties of the train engineer and the driver of an automobile as both

approach a crossing. In each of the thirteen cases Lemons has been cited since it was decided in

1939, the discussion was limited to the duty of a railroad or its employee to warn at railroad

crossings. It has no application to the issue of what duty is owed under the facts of this case.

On this record, the Court finds that Word was fraudulently joined. The conclusory

allegations of Word’s alleged responsibilities for the Lydalisk Bridge have been disproved by

Defendants’ evidence. The site reports Plaintiff attached to his complaint do not mention Word

by name or otherwise indicate that he received them. The complaint contains no detailed factual

allegation or evidence to permit the Court to draw the inference that Word owed a duty to J.R.A.

Whether as a premises liability claim as argued by TNC or a simple negligence claim as argued

by Plaintiff, the Court is convinced that Plaintiff lacks a reasonable basis for a claim against

Word.

The Court is unpersuaded by Plaintiff’s alternative arguments for remand (comity and

federalism considerations). The motion to remand is denied, and the claims against Word will be

dismissed without prejudice for lack of subject matter jurisdiction. See Wivell v. Wells Fargo

Bank, N.A., 773 F.3d 887, 896 (8th Cir. 2014) (dismissal of non-diverse defendant is pursuant to

12(b)(1) rather than 12(b)(6)). With his dismissal, the Court finds that it has subject matter

jurisdiction over this controversy.

TNC’s Motion to Dismiss4

TNC has moved to dismiss Plaintiff’s negligence claims against it for failure to state a

claim upon which relief can be granted pursuant to Rule 12(b)(6). A complaint must contain “a

short and plain statement of the claim that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). The complaint must give the defendant fair notice of what the claim is and the grounds

upon which it rests and must also contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 570). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.” Id.

TNC makes four arguments for dismissal. Each hinges on whether TNC owed a duty to

J.R.A. The Court will address the arguments in the order in which TNC presented them, noting at

the outset, however, that it finds merit only in TNC’s final argument.

First, TNC argues that it did not own the site where the accident happened—specifically

the water and the bridge—and, therefore, had no duty to inspect, repair, or warn of any

conditions on the property. It argues that the Lydalisk Bridge is part of County Road 195 and as

such as owned by Stone County, citing to Arkansas statutes declaring county roads to be public

4 Word joined in this motion to dismiss, but his arguments will not be addressed given his dismissal

pursuant to Rule 12(b)(1).

roads and the responsibility of the county.5 The Middle Fork of the Little Red River, it asserts, is

a navigable waterway and thus is held by the State in trust for the public. To support its argument

that this portion of the river is navigable and thus public, TNC points to the following allegation

in Plaintiff’s complaint: “Low water bridges and the streams they traverse . . are commonly used

for outdoor recreation. Activities such as fishing, swimming, or canoeing are commonplace.”6

The Court finds that these allegations are insufficient to establish the river’s navigability at the

accident site and thus the state’s ownership of the river. Plaintiff alleged that the TNC owned or

was otherwise in control of the property on which the Lydalisk Bridge was located and had

commissioned an engineer’s site review of the bridge prior to the accident. Drawing all

reasonable inference in favor of Plaintiff, his allegations are sufficient to state a claim against

TNC as the owner of the property.

TNC’s second argument is based on J.R.A.’s legal status on the property. TNC argues

that J.R.A. was “at most” a licensee, on the property for his own purpose and not for mutual

benefit; that TNC was unaware of his presence on the property; and therefore, it owned no duty

to J.R.A.7 The duty a landowner owes to a licensee is to refrain from injuring him through willful

or wanton conduct, defined as “a course of action which shows a deliberate intention to harm or

utter indifference to, or conscious disregard of, the safety of others.” Bader v. Lawson, 320 Ark.

561, 565, 898 S.W.2d 40, 43 (1995). A landowner “must also warn a licensee of hidden dangers

5 Ark. Code Ann. §§ 27-66-201-202; 14-298-101; 14-299-101, -102.

6 Doc. No. 2, ¶ 30.

7 Plaintiff argues that J.R.A. was a public invitee by virtue of what he calls TNC’s open invitation to

the public to use its property for recreation. The duty of a landowner to an invitee is to “exercise

ordinary care to maintain the premises in a reasonably safe condition” and includes a duty to warn

an invitee of “defects or conditions such as hidden dangers, traps, snares, pitfalls and the like” that

“are known to the owner but not to the invitee and would not be observed by the latter in the

exercise of ordinary care.” Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 777 S.W.2d 861 (1989); Dollar

Gen. Corp. v. Elder, 600 S.W.3d 597, 603 (Ark. 2020). The Court need not determine whether J.R.A.

was a licensee or a public invitee to rule on the motion to dismiss.

if the licensee does not know or have reason to know of the risk.” Lively v. Libbey Mem'l

Physical Med. Ctr., Inc., 311 Ark. 41, 47, 841 S.W.2d 609, 613 (1992). Under Arkansas law,

this duty arises once the presence of the licensee is known or reasonably should be known. See

Ark. Model Jury Instr., Civil AMI 1103; Daniel Const. Co. v. Holden, 266 Ark. 43, 49, 585

S.W.2d 6, 9–10 (1979).

The Court finds Plaintiff has adequately pleaded the existence of a duty to J.R.A. and a

breach of that duty. It is reasonable to infer from Plaintiff’s allegations that TNC should have

known that members of the public were using the location for recreational purposes. Doc. No. 2,

¶ 30. Likewise, the allegations that TNC had notice in May of 2021 of the serious danger to

recreational users of the property posed by the similarly constructed Alberg Bridge permits the

inference that TNC acted with utter indifference or conscious disregard of the safety of others in

not warning of the danger posed by the hidden danger of the submerged culverts by the time of

J.R.A.’s fatal accident on June 19, 2021.

For its third ground for dismissal, TNC argues that Plaintiff has not plausibly alleged that

it voluntarily undertook any duties regarding the Lydalisk Bridge. Under Arkansas law a party

with no legal duty to a third-party can become liable to another by undertaking a duty—either by

agreement or by conduct—and performing it negligently. Steward v. McDonald, 330 Ark. 837,

841, 958 S.W.2d 297, 299 (1997) (quoting Keck v. American Employment Agency, Inc., 279 Ark.

294, 652 S.W.2d 2 (1983); and Restatement (Second) of Torts § 323 (1965)). Plaintiff alleges

that TNC “undertook a duty to use ordinary care to identify and guard against safety deficiencies

associated with the Lydalisk Bridge” and the risks posed to recreational users of the bridge and

the surrounding stream. It supports this allegation with reference to TNC’s conduct in

commissioning an engineer’s site review of both the Arlberg and the Lydalisk Bridges, both of

which are attached as exhibits to the complaint. The allegations of the complaint allow the

reasonable inference then when it received the site review of the Arlberg Bridge that it had

commissioned, and the report warned against the “very real” risk of approach velocities at the

culverts’ intakes that were strong enough to pull a person into the pipe flow, that TNC breached

the duty it had undertaken to guard against the hidden safety risk of both bridges. TNC argues

that even if had become aware of the risks associated with the Lydalisk Bridge, it had no duty to

warn of the risks located on someone else’s property because it did not own the bridge or the

river, citing Gray v. Marianna Hous. Auth., 2020 Ark. App. 203, 6, 599 S.W.3d 337, 340 (2020).

However, as discussed above, the issue of navigability of the river at the accident site has not

been conclusively determined, and Plaintiff must be given all reasonable inferences at this stage.

The Court finds that the issue of whether TNC assumed a duty survives its motion to dismiss.

TNC saves for last its argument that the Arkansas Recreational Use Statute, Ark. Code

Ann. § 18-11-301 et seq. (“ARUS”) bars Plaintiff’s claims. “Generally, the ARUS provides

immunity from liability to landowners who make their property available for the recreational use

of others.” Roeder v. United States, 2014 Ark. 156, 2–3, 432 S.W.3d 627, 630 (2014). The

statute declares that a landowner “owes no duty of care to keep the premises safe” or “to give

any warning of a dangerous condition” to recreational users of its property. § 18-11-304. There

are two exceptions to this immunity, one of which is at play here.

An exception to immunity applies “when the landowner maliciously fails to guard or

warn against an ultrahazardous condition, structure, use, or activity actually known to the

landowner to be dangerous.” Id.; Ark. Code Ann. § 18–11–307 (liability not limited “[f]or

malicious, but not mere negligent, failure to warn against ultra-hazardous condition. . .”). In

2015, the Arkansas General Assembly defined “malicious” under the ARUS to mean “an

intentional act of misconduct that the actor is aware is likely to result in harm,” clarifying that

“[m]alicious does not mean negligent or reckless conduct.” Ark. Code Ann. § 18-11-302(4).

Plaintiff argues that this exception applies because he alleged that TNC knew of the

ultrahazardous condition and maliciously, intentionally, and consciously chose not to engage in

various actions to make the condition safer or to warn against its dangers.

Assuming for purposes of this motion that the dangerous approach velocities at the

submerged culverts qualified as an ultrahazardous condition,8 the Court finds that Plaintiff has

failed to plead sufficient factual matter to bring this case within the exception for malicious

conduct. “Malice is not an easy bar to clear under the statute.” Hutchinson v. United States, 71

F.4th 1115, 1119 (8th Cir. 2023).

In 2013, the Supreme Court of Arkansas accepted certification of the following question

from Judge Susan O. Hickey of the United States District Court for the Western District of

Arkansas: “Whether ‘malicious’ conduct, under Ark. Code Ann. § 18–11–307(1), includes

conduct in reckless disregard of the consequences from which malice may be inferred.” Roeder

v. United States, 2013 Ark. 451, 1, 430 S.W.3d 667 (2013), certified question answered, 2014

Ark. 156, 432 S.W.3d 627 (2014). The court answered in the affirmative. Roeder v. United

States, 2014 Ark. 156, 432 S.W.3d 627 (2014). Finding ambiguity in the phrase “malicious but

not mere negligent,” the court strictly construed the statute as being in derogation of common

law. Giving the exception its broadest reading, the court held that malicious conduct “includes

conduct in reckless disregard of the consequences from which malice may be inferred” rather

8 TNC contests that the condition was ultrahazardous. Plaintiff would have to prove that

swimming under the conditions present during J.R.A.’s accident “(1) cannot be performed

without a risk of serious harm to the person or another, regardless of any precautions taken; and

(2) does not normally occur in that community.” Carr v. Nance, 2010 Ark. 497, 20, 370 S.W.3d

826, 838 (2010).

than “actual malice” as argued by the government. Id. at 635. The court noted that its decision

was formulated "in the absence of explicit direction from the General Assembly.” Id. at 634.

If this were still the state of the law in Arkansas, Plaintiff’s complaint might survive the

motion to dismiss, as the failure to act after having been given notice of the danger could allow

for an inference of malice. However, as stated above, the General Assembly amended the ARUS

in 2015 to clarify that the term malicious does not mean negligent or reckless. And it had

previously eliminated liability under the ARUS for “willfull . . . failure to guard or warn” in

1983. Roeder, 432 S.W.3d at 633.

In this legal context, Plaintiff’s allegations that TNC owned the property where the

accident occurred, that it learned of the dangerous condition of the bridge before the accident,

that it did nothing to warn of or protect against the danger, and that a young boy lost his life as a

result are insufficient to bring this action under the exception in the ARUS for malicious

conduct. The Court finds that Plaintiff’s allegations of TNC’s failure to warn or protect do not

contain a factual basis that allows the inference that an intentional act of misconduct occurred.

For example, Plaintiff does not allege that anyone at TNC made a conscious decision not to post

warning signs. See Moss v. United States, No. 4:12-CV-4030, 2017 WL 1158087, at *7 (W.D.

Ark. Mar. 28, 2017), aff'd, 895 F.3d 1091 (8th Cir. 2018). And while the Alberg Bridge report

relays an account of local fishermen of “at least one case” where a person had been pulled into

the pipe flow, this account was not verified in the report (and has not been since). The Arkansas

General Assembly has set a high bar to establish malicious conduct for purposes of the ARUS,

nudged even higher with the 2015 amendment, and Plaintiff has not chinned this bar.

Plaintiff also challenges the constitutionality of the ARUS.9 He argues—in a single

page—that the statute violates four sections of the Arkansas Constitution: the right to trial by

jury,10 the open courts provision,11 the privileges and immunities clause,12 and the prohibition on

damages limitations.13 The parties agree that the constitutionality of this statute is analyzed under

the rational basis standard. Davis v. Parham, 362 Ark. 352, 363, 208 S.W.3d 162, 169 (2005).

Plaintiff has the burden of overcoming the presumption of the statute’s constitutionality. Id. The

Court’s role is to “merely consider whether there is any rational basis which demonstrates the

possibility of a deliberate nexus with state objectives so that the legislation is not the product of

arbitrary and capricious government purposes.” Id. The purpose of the ARUS is “to encourage

owners of land to make land and water areas available to the public for recreational purposes by

limiting their liability toward persons entering thereon for such purposes.” Ark. Code Ann. § 18-

11-301. The Court finds that Plaintiff has not met his burden of overcoming the presumption that

there is no rational basis for this stated purpose.

With the conclusion that Plaintiff’s claims are barred by the ARUS, TNC’s motion to

dismiss the complaint against it will be granted.

FIC’s Motion to Dismiss

In addition to its claims against TNC, Plaintiff brings an alternate claim for direct action

against Federal Insurance Company (“Federal”) as an insurer of TNC pursuant to Ark. Code

Ann. § 23-79-210. This statute allows for “a direct cause of action against the insurer with

9 He sets forth two pages of allegations in his complaint “related to the unconstitutionality” of the

statute though he does not in fact request a declaratory judgment on the issue. Doc. No. 2, ¶¶

106-119. Plaintiff alleges that the Arkansas Attorney General was served with a copy of the

complaint; no response was filed by the government.

10 Ark. Const. Art II, § 7.

11 Id., § 13.

12 Id., § 18.

13 Id., Art. V, § 32.

which the liability insurance is carried to the extent of the amounts provided for in the insurance

policy as would ordinarily be paid under the terms of the policy” when the insured 1s not subject

to a tort suit. /d. In light of the Court’s ruling that TNC is immune from suit, Federal’s motion to

dismiss is denied.

Motions to Amend

After the above motions to dismiss became ripe, Plaintiff filed two motions to amend his

complaint to add additional insurers pursuant to the direct-action statute. (Doc. Nos. 40, 45).

TNC and Federal have responded to both, and Plaintiff has filed a reply.'* After consideration of

the arguments and the law, the motions to amend are granted.

THEREFORE,

1. Plaintiff's motion to remand (Doc. No. 20) is DENIED, and Defendant Clayton

Word is dismissed without prejudice;

2. The Nature Conservancy’s motion to dismiss (Doc. No. 4) is GRANTED as the

Court finds that it has immunity pursuant to the Arkansas Recreational Use Statute; and

3. Federal Insurance Company’s motion to dismiss (Doc. No. 6) is DENIED.

4. Plaintiff's first and second motions for leave to file an amended complaint (Doc.

Nos. 40, 45) are GRANTED.

5. Federal Insurance Company has until April 15, 2023 to file its answer to the

complaint.

IT IS SO ORDERED this 15th day of March, 2024.

an Ge □□ eicrober

The reply has not been separately filed. It is attached as an exhibit to the motion for leave to

file, which motion was granted. Doc. Nos. 46-1, 47.

13