LITTLE ROCK, Ark. (Legal Newsline) - The owner of Arkansas land has escaped wrongful death litigation from a dad who watched his seven-year-old son drown during a Fathers Day vacation.
Arkansas federal judge James Moody on March 15 granted a motion to dismiss from The Nature Conservancy, which purchased land around the Lydalisk Bridge in 2019. Moody rejected a motion to dismiss from the Federal Insurance Company.
The complaint blamed them for the death of Jarrett Allen on June 19, 2021, in the Middle Fork of the Red River in Stone County. He was playing in shallow water when he was sucked into a culvert and became stuck.
After 10 minutes, he was pulled out by a rope around his ankle but died the next day. The lawsuit says TNC failed to post any signs for dangerous underwater currents.
TNC pointed to the Arkansas Recreational Use Statute to argue Stephen Allen's claims were barred. ARUS provides immunity to landowners who make their property available for the recreational use of others and provides they owe no duty of care to keep it safe or give warnings of dangerous conditions.
An exception is created when the landowner maliciously fails to guard or warn against a dangerous condition. The state Legislature has made it law that malicious does not mean negligent or reckless.
"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," Moody wrote.
"For example, Plaintiff does not allege that anyone at TNC made a conscious decision not to post warning signs."
A report from local fishermen that at least one person had been pulled into the pipe flow could not be verified. Moody also ruled against the plaintiff's challenge to the constitutionality of ARUS.
"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,'" he wrote.
"The Court finds that Plaintiff has not met his burden of overcoming the presumption that there is no rational basis for this stated purpose."
Project manager Clayton Word was also dismissed from the lawsuit, finding he was fraudulently joined to it.
TNC's insurer, FIC, had its motion rejected.