{
  "id": 1740898,
  "name": "Charles MILAM, II v. MIDLAND CORPORATION and THEIS REALTY, INC.",
  "name_abbreviation": "Milam v. Midland Corp.",
  "decision_date": "1984-03-12",
  "docket_number": "83-232",
  "first_page": "15",
  "last_page": "19",
  "citations": [
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      "cite": "665 S.W.2d 284"
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      "category": "reporters:state",
      "reporter": "Ark.",
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      "year": 1972,
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      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "case_ids": [
        1669036
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      "year": 1978,
      "opinion_index": 1,
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        "/ark/264/0691-01"
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    {
      "cite": "246 Ark. 691",
      "category": "reporters:state",
      "reporter": "Ark.",
      "year": 1978,
      "opinion_index": 1
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    {
      "cite": "223 Ark. 314",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1650387
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      "year": 1954,
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  "last_updated": "2023-07-14T19:21:24.101080+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Purtle and Hollingsworth, JJ., dissent.",
      "Purtle, J., joins in this dissent."
    ],
    "parties": [
      "Charles MILAM, II v. MIDLAND CORPORATION and THEIS REALTY, INC."
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nThis is a suit by Charles Milam, II, for personal injuries sustained when his motorcycle was struck almost head-on by a car being driven by the principal defendant, Fred Borchert. The accident occurred on a curve in Mulberry Street, a residential street in Pine Bluff. The appellees, two real estate companies, were joined as defendants upon an allegation that they owned and managed the abutting land and had allowed visibility along the street to be obstructed by the growth of weeds next to the pavement. When it was found that the city was responsible for the weeds, the complaint was amended to assert that the real estate companies, in developing the subdivision, had made Mulberry Street too narrow and the curve in question too sharp. Recovery was sought on the theory that the defendants were strictly liable for having supplied a defective product and also were liable for their negligence in constructing a dangerous street.\nThese appellees filed a motion for summary judgment, which was submitted on various depositions. In appealing from a summary judgment for the appellees, the appellant argues the same theories asserted below: strict liability and negligence. Neither argument is supported by the law.\nFirst, strict liability. Four years before this accident Mulberry Street was designed with the city\u2019s approval, constructed and dedicated by the appellees, and accepted by the public authorities. Under our statute strict liability may be imposed upon \u201ca supplier of a product\u201d if the supplier \u201cis engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product.\u201d Ark. Stat. Ann. \u00a7 85-2-318.2 (Supp. 1983).\nThe appellant relies upon Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981), where we adhered to our view that the builder-vendor of a house impliedly warrants its habitability and went on to hold that he is also the supplier of a product and therefore strictly liable for a defective carpet in the house. The language of the statute, however, cannot conceivably be stretched to encompass a street as a product. The developer of a residential subdivision is obviously not engaged in the business of manufacturing, assembling, selling, leasing, or distributing streets.\nSecond, negligence. There are two fatal flaws in the appellant\u2019s theory of common-law liability. In the first place, a highway contractor who constructs a street is not ordinarily liable after its acceptance by the public authorities. The appellant, however, relies upon an exception that is recognized when the construction is \u201cimminently dangerous.\u201d Reynolds v. Manley, 223 Ark. 314, 265 S.W.2d 714 (1954). \u201cImminent\u201d is commonly defined as threatening to occur immediately, likely to happen at any moment. It cannot fairly be said that a four-year-old residential street, similar to thousands of others in Arkansas, is so imminently dangerous to the traveling public that its builder should be liable in a case like this one.\nThe other defect in the appellant\u2019s argument is the absence of proximate cause. The pavement on Mulberry is 31 feet wide, nine feet more than the required minimum of 22 feet. A plaintiff\u2019s expert witness thought it should be at least 35 feet wide, to include two 11-foot lanes and a parking lane. The sharpness of the curve is not explained, except that it did not conform to the city\u2019s minimum 7,160-foot radii for curves.\nAt 8:30 a.m. Borchert was driving home on Mulberry, as he had done for months. He crossed the center line to get around a parked car and had not gotten back into his lane when the collision occurred. He \u201cjust didn\u2019t see\u201d Milam approaching on his motorcycle, which \u201cbarely caught the left front fender of my vehicle. \u2019\u2019 Milam was on his side of the street, about ten feet from the curb. Borchert\u2019s testimony is not disputed, as Milam\u2019s version of the matter was not submitted.\nProximate cause is \u201ca cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.\u201d AMI Civil 2d, 501 (1974). The collision could, on the proof, have been avoided by either man if he had been attentive. The collision cannot reasonably be said to have followed in a natural and continuous sequence from the construction of the street four years earlier. Moreover, a proximate cause is one without which the damage would not otherwise have occurred. Since Milam\u2019s motorcycle barely caught the fender of the oncoming car when he had ten feet of clearance to his right, it would be pure speculation for a jury to say the accident would not have happened had the street been four feet wider. Such collisions occur daily on streets that are straight and wide.\nAffirmed.\nPurtle and Hollingsworth, JJ., dissent.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      },
      {
        "text": "P. A. Hollingsworth, Justice,\ndissenting. I disagree with the majority on the negligence issue in this case.\nMulberry Street was built by Midland and dedicated to the public on November 14,1977. The subdivision in which the street was located was incorporated into the city of Pine Bluff on January 11, 1979. Prior to the incorporation, the Pine Bluff City Council had adopted recommendations that the pavement width of two-lane collector streets, such as Mulberry, be forty-eight feet and that the minimum curve radii of such streets be 7160 feet. Other city ordinances required clearing and grading of street rights-of-way. It is undisputed that Mulberry Street is thirty-one feet wide, and the radius of the curve is substantially less than the standard adopted by the city council.\nThe appellant asserts that the trial court erred in granting summary judgment on the issue of negligence. I agree. To prove negligence, the injured party must prove a negligent act; that the act was the proximate cause of the plaintiff\u2019s damages; and that the damages were foreseeable. St. Mary\u2019s Hospital, Inc. v. Bynum, 246 Ark. 691, 573 S.W.2d 914 (1978). The appellees argue that they owed no legal duty to the appellant and that without a duty, there can be no negligent act. The appellees also argue that Midland could be viewed as a contractor in relation to the city and that the general rule in Arkansas provides that upon acceptance by a proprietor of its contractor\u2019s work, the liability of the contractor as to third persons ceases. Southwestern Bell Co. v. Travelers Indemnity Co., 252 Ark. 400, 479 S.W.2d 232 (1972). There are, however, exceptions to this general rule under which a contractor may be held liable after acceptance and approval of the completed job. One of the exceptions \u201cis where the job is \u2018turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons\u2019.\u201d Reynolds v. Manley, 223 Ark. 314, 265 S.W.2d 714 (1954). Reynolds involved a suit against a contractor for negligently, constructing a road! In holding that the condition was not so imminently dangerous as to subject the contractor to liability, the court pointed out that there was no contention that the hole in the road existed when the job was completed and that the State selected and approved all materials used. These facts make Reynolds distinguishable from the case at bar, in that here the contention is that the road was defective at the time the job was completed. The defect concerns the dimensions of the road, and since the city did not supervise the project, there can be no claim that the city controlled the manner and specifications for construction. Therefore, I would find that the question of negligence should not have been resolved upon a motion for summary judgment. I would remand to the trial court to allow the parties to develop fully the questions of causation and defective conditions on the iosue of negligence.\nPurtle, J., joins in this dissent.",
        "type": "dissent",
        "author": "P. A. Hollingsworth, Justice,"
      }
    ],
    "attorneys": [
      "The McMath Law Firm, by: Sandy S. McMath, for appellant.",
      "Anderson \u00bfr Kilpatrick, by: Overton S. Anderson, for appellees."
    ],
    "corrections": "",
    "head_matter": "Charles MILAM, II v. MIDLAND CORPORATION and THEIS REALTY, INC.\n83-232\n665 S.W.2d 284\nSupreme Court of Arkansas\nOpinion delivered March 12, 1984\nThe McMath Law Firm, by: Sandy S. McMath, for appellant.\nAnderson \u00bfr Kilpatrick, by: Overton S. Anderson, for appellees."
  },
  "file_name": "0015-01",
  "first_page_order": 41,
  "last_page_order": 45
}