Roeder v. United States ( 2014 )


Menu:
  •                         Cite as 
    2014 Ark. 156
    SUPREME COURT OF ARKANSAS
    No.   CV-13-955
    THERESA ROEDER, AS THE               Opinion Delivered   April 10, 2014
    ADMINISTRATRIX OF THE ESTATE
    OF ESTHER KAY ROEDER,
    DECEASED, AND ON BEHALF OF THE
    WRONGFUL DEATH BENEFICIARIES         CERTIFIED QUESTION FROM THE
    OF ESTHER KAY ROEDER; TARA           UNITED STATES DISTRICT COURT
    ROEDER, AS THE ADMINISTRATRIX        FOR THE WESTERN DISTRICT OF
    OF THE ESTATE OF BRUCE WAYNE         ARKANSAS, HOT SPRINGS DIVISION
    ROEDER, AND ON BEHALF OF THE
    WRONGFUL DEATH BENEFICIARIES
    OF BRUCE WAYNE ROEDER; AND           HON. SUSAN O. HICKEY, UNITED
    TARA    ROEDER, AS         THE       STATES DISTRICT COURT JUDGE
    ADMINISTRATRIX OF THE ESTATE
    OF DEBORAH BUSBY ROEDER, AND
    ON BEHALF OF THE WRONGFUL
    DEATH BENEFICIARIES OF DEBORAH       CERTIFIED QUESTION ANSWERED.
    BUSBY ROEDER
    PETITIONERS
    V.
    UNITED STATES OF AMERICA; JAMES
    S. WATSON, IN HIS INDIVIDUAL AND
    OFFICIAL CAPACITY; GLORIA
    MAPLES CHRISMER, IN HER
    INDIVIDUAL AND OFFICIAL
    CAPACITY; NORMAL L. WAGONER,
    IN HIS INDIVIDUAL AND OFFICIAL
    CAPACITY; JAMES B. KOZIK, IN HIS
    INDIVIDUAL AND OFFICIAL
    CAPACITY; AND JOHN DOES 1-5, IN
    THEIR INDIVIDUAL AND OFFICIAL
    CAPACITY
    RESPONDENTS
    JIM HANNAH, Chief Justice
    Cite as 
    2014 Ark. 156
    This case involves a question of law certified to this court by the United States District
    Court for the Western District of Arkansas, Hot Springs Division, in accordance with
    Arkansas Supreme Court Rule 6-8 (2013) and accepted by this court on November 7, 2013.
    See Roeder v. United States, 
    2013 Ark. 451
    , ___ S.W.3d ___. The certified question is:
    Whether “malicious” conduct, under Arkansas Code Annotated section 18-11-307(1)
    (Repl. 2003), includes conduct in reckless disregard of the consequences from which
    malice may be inferred.
    We answer in the affirmative.
    The following facts were provided in the federal district court’s certification order.
    This is one of eleven similar cases filed in federal district court1 arising from the deaths of
    campers who died in a tragic flood incident in June 2010 at the Albert Pike Recreation Area
    (“APRA”).2 Some of these campers were camping in Loop D, which is a section of the
    APRA designated for RV use. Others were camping upstream from Loop D, along Road
    512 in the Ouachita National Forest. In the early morning hours of June 11, 2010, heavy
    rainfall in Montgomery County caused a rapid rise in the Little Missouri River and its
    tributaries. A flash flood occurred when the river overran its banks into Loop D and the
    surrounding areas of the APRA. According to the United States Geological Service, the
    Little Missouri River rose over twenty feet between 2:00 a.m. and 5:30 a.m. Twenty people
    perished in the flood.
    1
    The court stayed the other ten cases pending the resolution of the certified question.
    2
    The Albert Pike Recreation Area is public land managed by the United States
    through its Forest Service, which is an agency of the United States Department of
    Agriculture.
    2
    Cite as 
    2014 Ark. 156
    Plaintiffs, Theresa Roeder, as the Administratrix of the Estate of Esther Kay Roeder,
    deceased, and on behalf of the wrongful death beneficiaries of Esther Kay Roeder; Tara
    Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder, and on behalf of the
    wrongful death beneficiaries of Bruce Wayne Roeder; and Tara Roeder, as the
    Administratrix of the Estate of Deborah Busby Roeder, and on behalf of the wrongful death
    beneficiaries of Deborah Busby Roeder (collectively referred to as “Roeder”), filed suit in
    federal district court against defendants, the United States of America; James S. Watson, in
    his individual and official capacity; Gloria Maples Chrismer, in her individual and official
    capacity; Norman L. Wagoner, in his individual and official capacity; James B. Kozik, in his
    individual and official capacity; and John Does 1-5, in their individual and official capacity
    (collectively referred to as the “United States” or the “government”), pursuant to the Federal
    Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, alleging that the negligence
    of the United States Forest Service caused the death of several campers who were camping
    in or near the APRA.3 The United States asserted that subject-matter jurisdiction was lacking
    under the FTCA because the Arkansas Recreational Use Statute (“ARUS” or the “Act”),
    codified at Arkansas Code Annotated sections 18-11-301 to -307, provides the government
    with immunity. Generally, the ARUS provides immunity from liability to landowners who
    make their property available for the recreational use of others, except when (1) the
    landowner charges the person entering the land for recreational use, or (2) when the
    3
    In Roeder v. United States, 6:12-cv-6120-SOH, Roeder filed claims against the United
    States of America and individual employees of the United States Forest Service. In the other
    ten cases, the United States of America is the only defendant.
    3
    Cite as 
    2014 Ark. 156
    landowner maliciously fails to guard or warn against an ultrahazardous condition, structure,
    use, or activity actually known to the landowner to be dangerous. Ark. Code Ann. § 18-11-
    307. Roeder alleged that the United States was not immune from liability because it
    maliciously failed to warn or guard against an ultrahazardous condition of which it knew to
    be dangerous.
    The meaning of “malicious” as used in the ARUS is at issue. Roeder contended that
    malicious conduct includes conduct committed in reckless disregard of the consequences,
    from which malice may be inferred. The United States contended that malicious conduct is
    limited to situations involving actual malice or a desire to harm another. Concluding that
    there was no controlling precedent interpreting the meaning of “malicious,” as it is used in
    the ARUS, the federal district court certified to this court the question of whether
    “malicious” conduct, under Arkansas Code Annotated section 18-11-307(1) includes
    conduct in reckless disregard of the consequences from which malice may be inferred.
    The certified question presents an issue of statutory construction. The cardinal rule
    of statutory construction is to effectuate the legislative will. E.g., Woodrome v. Daniels, 
    2010 Ark. 244
    , at 8, 
    370 S.W.3d 190
    , 194. Where the language of a statute is plain and
    unambiguous, we determine legislative intent from the ordinary meaning of the language
    used. 
    Id., 370 S.W.3d
    at 194. In considering the meaning of a statute, we construe it just as
    it reads, giving the words their ordinary and usually accepted meaning in common language.
    
    Id., 370 S.W.3d
    at 194. We construe the statute so that no word is left void, superfluous, or
    insignificant; and meaning and effect are given to every word in the statute if possible. 
    Id., 4 Cite
    as 
    2014 Ark. 156
    370 S.W.3d at 194.
    The word “malicious” is not defined in the ARUS. “Malicious,” as defined by
    Webster’s Third New International Dictionary 1367 (3d ed. 2002), means “given to, marked by,
    or arising from malice.” Black’s Law Dictionary defines “malice” as “[t]he intent, without
    justification or excuse, to commit a wrongful act,” the “reckless disregard of the law or of
    a person’s legal rights,” and “[i]ll will; wickedness of heart.” Black’s Law Dictionary 1042 (9th
    ed. 2009). Thus, according to Black’s, “malicious” conduct could include, as Roeder
    contends, conduct in reckless disregard of the consequences from which malice may be
    inferred, or, as the United States contends, “malicious” conduct could be limited to situations
    involving “actual malice” or a desire to harm another. Given that “malicious” is open to
    more than one construction, we conclude that Arkansas Code Annotated section 18-11-
    307(1) is ambiguous. See, e.g., Smith v. ConAgra Foods, Inc., 
    2013 Ark. 502
    , at 3, ___S.W.3d
    ___, ___ (stating that a statute is considered ambiguous if it is open to more than one
    construction). When a statute is ambiguous, we discern legislative intent by examining the
    whole act. See, e.g., Woodrome, 
    2010 Ark. 244
    , at 
    8, 370 S.W.3d at 195
    . We reconcile
    provisions to make them consistent, harmonious, and sensible in an effort to give effect to
    every part. 
    Id., 370 S.W.3d
    at 195. We also look to the legislative history, the language, and
    the subject matter involved. 
    Id., 370 S.W.3d
    at 195.
    The ARUS was first enacted in 1965 “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.” Act of Feb. 12, 1965, No. 51, § 1, 
    1965 Ark. 5
                                       Cite as 
    2014 Ark. 156
    Acts 165, 166 (originally codified at Ark. Stat. Ann. §§ 50-1101 to -1106). To achieve this
    purpose, the Act limited the liability of landowners in two ways. First, the Act established
    that, except as specifically recognized or provided,
    an owner of land owes no duty of care to keep the premises safe for entry or use by
    others for recreational purposes, or to give any warning of a dangerous condition, use,
    structure, or activity on such premises to persons entering for such purposes.
    Act of Feb. 12, 1965, No. 51, § 3, 1965 Ark. Acts 165, 166; currently codified at Ark. Code
    Ann. § 18-11-304. Second, the Act provided that, with some exceptions,
    an owner of land who either directly or indirectly invites or permits without charge
    any person to use such property for recreational purposes does not thereby:
    (a) Extend any assurance that the premises are safe for any purpose.
    (b) Confer upon such person the legal status of an invitee or licensee to whom a duty
    of care is owed.
    (c) Assume responsibility for or incur liability for any injury to person or property
    caused by an act or omission of such persons.
    Act of Feb. 12, 1965, No. 51, § 4, 1965 Ark. Acts 165, 167.4
    As enacted in 1965, the ARUS contained two exceptions to immunity, one of which
    is relevant in this case. The Act provided:
    4
    This provision was amended in 1983 to add that landowners who permit their
    property to be used for recreational purposes do not thereby:
    (d) assume responsibility for or incur liability for such injury to such person or
    property caused by any natural or artificial condition, structure or personal property
    on the land.
    Act of Feb. 14, 1983, No. 168, § 3, 1983 Ark. Acts 225, 226; currently codified at Ark. Code
    Ann. § 18-11-305.
    6
    Cite as 
    2014 Ark. 156
    Nothing in this Act limits in any way liability which otherwise exists: (a) For willful
    or malicious failure to guard or warn against a dangerous condition, use, structure, or
    activity.
    Act of Feb. 12, 1965, No. 51, § 6, 1965 Ark. Acts 165, 167 (emphasis added).
    Then, in 1983, the General Assembly amended that exception, so that it now reads:
    Nothing in this Act limits in any way liability which otherwise [exists]: (a) for
    malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous
    condition, structure, personal property, use or activity actually known to such owner
    to be dangerous.
    An Act to Amend Various Sections of Act 51 of 1965 [Ark. Stat. [Ann. §§] 50-1101 et seq.]
    to Clarify the Limitation on the Liability of Landowners for Allowing Persons to Use their
    Land; and for Other Purposes, Act of Feb. 14, 1983, No. 168, § 6, 1983 Ark. Acts 225, 227
    (emphasis added); currently codified at Ark. Code Ann. § 18-11-307(1).5
    The United States contends that the legislative history of the ARUS demonstrates that
    the General Assembly intended for malicious conduct to be limited to situations involving
    actual malice or a desire to harm another. In support of its argument, the government cites
    Mandel v. United States, 
    545 F. Supp. 907
    (W.D. Ark. 1982), in which the United States
    District Court for the Western District of Arkansas construed the 1965 version of the ARUS.
    5
    Thus, in the current version of the recreational-use statute, (1) malicious, but not
    mere negligent, failure to guard or warn invokes the exception, whereas in the previous
    version, “willful or malicious” failure to guard or warn invoked the exception; (2) an
    ultrahazardous condition, structure, personal property, use, or activity is required to invoke
    the exception, whereas in the previous version, a mere dangerous condition, structure,
    personal property, use, or activity invoked the exception; and (3) for invocation of the
    exception and resulting liability, the ultrahazardous condition, structure, personal property,
    or activity must be actually known to the owner to be dangerous, whereas in the previous
    version, there was no express statement that actual knowledge was required.
    7
    Cite as 
    2014 Ark. 156
    In that case, the plaintiff, Michael Mandel, sought a safe place to swim in the Buffalo
    National River, and a park ranger recommended an area known as Kyle’s Landing. While
    swimming there, Mandel struck a submerged rock and broke his neck. Mandel brought an
    action against the National Park Service, the Boy Scouts of America, and the Insurance
    Company of North America, alleging that “employees of the National Park Service and the
    Boy Scouts of America knew that persons would use the facility with their permission, and
    failed to adequately warn divers of the presence of submerged rocks, and failed to properly
    mark or otherwise delineate safe diving areas.” 
    Id. at 909.
    The defendants argued that they
    were immune from liability pursuant to the ARUS because the evidence did not establish
    a willful or malicious failure to guard or warn against a dangerous condition, use, structure,
    or activity on their part.
    The federal district court noted that it was “unaware of any Arkansas cases”
    interpreting the “willful or malicious” language in the ARUS, but explained that “the
    Arkansas courts have many times defined ‘willful and wanton conduct.’” 
    Id. at 912.
    Because
    the court could “think of no reason why ‘willful and wanton’ and ‘willful misconduct’ would
    . . . not be synonymous with ‘willful or malicious,’” the court “infer[red] that the legislature
    intended ‘willful and malicious’ to have the same meaning as ‘willful misconduct.’” 
    Id. at 913.
    Therefore, it interpreted “willful or malicious” in the ARUS to mean that “the plaintiff
    must show (1) that defendants’ conduct would naturally or probably result in injury; (2) that
    defendants knew or reasonably should have known that their conduct would so result in
    injury; and (3) that defendants continued such course of conduct in reckless disregard of the
    8
    Cite as 
    2014 Ark. 156
    consequences.” 
    Id. As previously
    noted, the Mandel court construed the 1965 version of the ARUS,
    which provided no immunity from liability for willful or malicious failure to guard or warn
    against a dangerous condition, use, structure, or activity. The United States contends that the
    1983 amendment, which, inter alia, removed the term “willful,” was enacted in response to
    Mandel. The United States also contends that “willfulness” and “inferred malice” are
    synonymous under Arkansas law. Accordingly, the United States asserts that, because the
    legislature eliminated liability for a “willful . . . failure to guard or warn” as part of the 1983
    amendment, then the legislature must have similarly eliminated liability for situations
    involving “inferred malice.”
    The government’s argument would be more persuasive if, with respect to the duty
    of care, the General Assembly had changed the statute only by eliminating the words “willful
    or” before “malicious.” But it did not. Rather, the General Assembly eliminated “willful or”
    before “malicious” and then added “but not mere negligent” after the term “malicious.” Thus,
    we cannot read the term “malicious” in isolation; instead, we must construe it in the context
    of how it is used in the statute. This court has not construed the phrase “malicious, but not
    mere negligent,” in the ARUS. But for many years, this court has referred to negligent
    conduct to explain situations in which when malice may be inferred. For example, we have
    discussed the distinction between malicious conduct and other types of conduct in the
    context of punitive damages, noting that negligence alone will not support an award of
    exemplary damages; rather, there must be conduct from which malice may be inferred. See,
    9
    Cite as 
    2014 Ark. 156
    e.g., Stein v. Lukas, 
    308 Ark. 74
    , 78, 
    823 S.W.2d 832
    , 834 (1992) (stating that “malice can
    be inferred either from a conscious indifference to the consequences of one’s actions or from
    a reckless disregard of those same consequences”); Chicago, Rock Island & Pac. Ry. Co. v.
    Whitten, 
    90 Ark. 462
    , 468, 
    119 S.W. 835
    , 837 (1909) (noting that “[m]ere negligence,
    indifference or careless disregard of the rights of others is not sufficient upon which to base
    a recovery for exemplary damages” and that “[t]he acts must be such as to evince malice”);
    St. Louis, Iron Mountain & S. Ry. Co. v. Dysart, 
    89 Ark. 261
    , 268, 
    116 S.W. 224
    , 226 (1909)
    (stating that “[n]egligence alone, however gross, is not sufficient, and that there must be an
    added element of intentional wrong, or, what is its equivalent, conscious indifference in the
    face of discovered peril, from which malice may be inferred”). We conclude that “but not
    mere negligent” functions as an explanatory phrase in the ARUS and that the legislature used
    those words to clarify what type of malice must be shown to preclude immunity from
    liability.
    Moreover, as Roeder points out, if the legislature’s intent was to require that only
    “actual malice” could preclude immunity under the ARUS, then it could have expressly
    done so, as it has done in other statutes when the intent to harm is required for liability. See,
    e.g., Ark. Code Ann. § 5-26-502(e)(2) (Repl. 2013) (interference-with-court-ordered-
    custody statute providing immunity for petitioner unless the petitioner acted with “actual
    malice”); 
    id. § 5-26-503(e)(2)
    (Repl. 2013) (interference-with-custody statute providing
    immunity for department unless department acted with “actual malice”); 
    id. § 12-13-302(3)
    (Repl. 2009) (Arson Reporting-Immunity Act—no criminal or civil liability for action taken
    10
    Cite as 
    2014 Ark. 156
    under the Act unless “actual malice” is present); 
    id. § 23-64-515(e)
    & (g) (Repl. 2012)
    (Proper Licensing Model Act—no civil liability for making a statement or providing
    information or failing to report unless “actual malice” is shown); 
    id. § 23-66-506(b)
    (Repl.
    2012) (fraudulent-insurance-acts-prevention statute stating that there is no civil liability for
    libel, slander, or any other cause of action unless statements were made with “actual malice”);
    
    id. § 23-81-814(d)(2)(A)
    (Supp. 2013) (Life Settlements Act—no liability for statements made
    in conjunction with the Act unless the statements were made with “actual malice”).
    Finally, there is another reason why, in the absence of explicit direction from the
    General Assembly, this court should construe the words “malicious, but not mere negligent”
    to include conduct in reckless disregard of the consequences from which malice may be
    inferred. Immunity under the ARUS is in derogation of the common law,6 and any statute
    6
    “[T]he common law has traditionally recognized three main categories of land
    entrants: trespassers, licensees, and invitees,” and “Arkansas adheres to the common-law
    categories, although it codified the common-law trespasser principles in 1993.” Harrison M.
    Pittman, The Arkansas Recreational-Use Statute: Past, Present, and Future Application for Arkansas
    Landowners and Recreational Users of Land, 
    60 Ark. L
    . Rev. 849, 855–56 (2008) (citing Ark.
    Code Ann. § 18-60-108). “A landowner owes a different duty of care to each category of
    land entrant.” 
    Id. at 856.
    A trespasser is one who comes upon land without the consent of
    the possessor, see Coleman v. United Fence Co., 
    282 Ark. 344
    , 345, 
    668 S.W.2d 536
    , 537
    (1984), and a landowner owes a trespasser the duty not to willfully or wantonly injure him
    after his presence is known. Sw. Bell Tel. v. Davis, 
    247 Ark. 381
    , 386, 
    445 S.W.2d 505
    , 507
    (1969). A licensee is a person who comes upon the land with a privilege arising from the
    consent of the possessor, see 
    Coleman, 282 Ark. at 345
    , 668 S.W.2d at 537, and a landowner
    owes a licensee the duty to refrain from injuring him or her through willful or wanton
    conduct. Heigle v. Miller, 
    332 Ark. 315
    , 321, 
    965 S.W.2d 116
    , 120 (1998). Where, however,
    the landowner discovers that a licensee is in peril, he or she has a duty of ordinary care to
    avoid injury to the licensee. 
    Id., 965 S.W.2d
    at 120. This duty takes the form of warning a
    licensee of hidden dangers if the licensee does not know or have reason to know of the
    conditions or risks involved. 
    Id., 965 S.W.2d
    at 120. An invitee is one induced to come onto
    property for the business benefit of the possessor, see 
    Coleman, 282 Ark. at 345
    , 
    668 S.W.2d 11
                                        Cite as 
    2014 Ark. 156
    in derogation of the common law will be strictly construed. E.g., Thompson v. Bank of Am.,
    
    356 Ark. 576
    , 584, 
    157 S.W.3d 174
    , 179 (2004).7 Strict construction requires that nothing
    be taken as intended that is not clearly expressed. E.g., Estate of Hull v. Union Pac. R.R. Co.,
    
    355 Ark. 547
    , 550, 
    141 S.W.3d 356
    , 358 (2004). In construing Nevada’s recreational-use
    statute, the United States Court of Appeals for the Ninth Circuit stated,
    Since the recreational use statute is in derogation of common law rules of tort
    liability, we take care to avoid an overbroad interpretation of the statute that would
    afford immunity that was not intended. Consequently, exceptions to the statute . . .
    must be given the broadest reading that is within the fair intendment of the language
    used.
    Ducey v. United States, 
    713 F.2d 504
    , 510 (9th Cir. 1983) (emphasis in original).
    We agree with the reasoning of the Ducey court. In the instant case, if we give the
    malicious-but-not-mere-negligent exception to immunity the broadest reading that is within
    at 537, and a landowner has a duty to exercise ordinary care to maintain the premises in a
    reasonably safe condition for the benefit of invitees. Wilson v. J. Wade Quinn Co., 
    330 Ark. 306
    , 308, 
    952 S.W.2d 167
    , 169 (1997).
    7
    The majority of courts interpreting recreational-use statutes have held that, because
    recreational-use statutes are in derogation of common law and because they limit the duties
    of landowners, they must be strictly construed. See, e.g., Ducey v. United States, 
    713 F.2d 504
    (9th Cir. 1983 ) (interpreting Nevada law); Newman v. Sun Valley Crushing Co., 
    844 P.2d 623
    (Ariz. Ct. App. 1992); Conway v. Town of Wilton, 
    680 A.2d 242
    (Conn. 1996); Drake by Drake
    v. Mitchell Cmty. Schs., 
    649 N.E.2d 1027
    (Ind. 1995); Monteville v. Terrebonne Parish Consol.
    Gov’t, 
    567 So. 2d 1097
    (La. 1990); Seideman by Seideman v. Cnty. of Monroe, 
    585 N.Y.S.2d 909
    (N.Y. App. Div. 1992); Corbett v. City of Myrtle Beach, S.C., 
    521 S.E.2d 276
    (S.C. Ct.
    App. 1999); Kern v. City of Sioux Falls, 
    560 N.W.2d 236
    (S.D. 1997); Matthews v. Elk Pioneer
    Days, 
    824 P.2d 541
    (Wash. Ct. App. 1992); but see Hafford v. Great Northern Nekoosa Corp.,
    
    687 A.2d 967
    , 969 (Me. 1996) (noting that the immunity provision of Maine’s recreational-
    use statute is construed broadly); Verdoljak v. Mosinee Paper Corp., 
    547 N.W.2d 602
    , 607
    (Wis. 1996) (noting that the court follows the legislative directive that Wisconsin’s
    recreational-use statute “should be liberally construed in favor of the property owners to
    protect them from liability”).
    12
    Cite as 
    2014 Ark. 156
    the fair intendment of the language used, then we must conclude that “malicious” conduct,
    under Arkansas Code Annotated section 18-11-307(1) includes conduct in reckless disregard
    of the consequences from which malice may be inferred.8
    Certified question answered.
    Trammell Piazza Law Firm, PLLC, by: Melody H. Piazza and M. Chad Trammell; and
    Appellate Solutions, PLLC, by: Deborah Truby Riordan, for petitioners.
    Conner Eldridge and Deborah Fennel Groom, U.S. Attorney’s Office; and Stuart F. Delery,
    Mark B. Stern, and Daniel J. Lenerz, U.S. Department of Justice, for respondents.
    Richard Mays Law Firm, PLLC, by: Richard H. Mays, for amicus curiae Aaron Sultz, as
    Special Administrator of the Estate of Eric Wayne Sultz, deceased, and on Behalf of the
    Statutory Wrongful Death Beneficiaries of Eric Wayne Sultz.
    Ayres, Warren, Shelton & Williams, LLC, by: Lee H. Ayres and Jason W. Poe, for amici
    curiae Candice Smith et al. and Kerri Basinger et al.
    8
    In Carlton v. Cleburne County, Ark., 
    93 F.3d 505
    (8th Cir. 1996), the United States
    Court of Appeals for the Eighth Circuit stated that an inferred-malice standard applies under
    the ARUS. 
    Id. at 511
    (citing Stein v. Lukas, 
    308 Ark. 74
    , 77, 
    823 S.W.2d 832
    , 834 (1992)).
    A federal court decision construing an Arkansas statute is not binding authority on this court;
    however, the decision is persuasive authority. E.g., Baldwin Co. v. Maner, 
    224 Ark. 348
    , 349,
    
    273 S.W.2d 28
    , 30 (1954).
    13