Milam v. Midland Corp. , 282 Ark. 15 ( 1984 )

George Rose Smith, Justice.

This 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.

These 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.

First, strict liability. Four years before this accident Mulberry Street was designed with the city’s approval, constructed and dedicated by the appellees, and accepted by the public authorities. Under our statute strict liability may be imposed upon “a supplier of a product” if the supplier “is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product.” Ark. Stat. Ann. § 85-2-318.2 (Supp. 1983).

The 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.

Second, negligence. There are two fatal flaws in the appellant’s 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 “imminently dangerous.” Reynolds v. Manley, 223 Ark. 314, 265 S.W.2d 714 (1954). “Imminent” 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.

The other defect in the appellant’s 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’s 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’s minimum 7,160-foot radii for curves.

At 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 “just didn’t see” Milam approaching on his motorcycle, which “barely caught the left front fender of my vehicle. ’’ Milam was on his side of the street, about ten feet from the curb. Borchert’s testimony is not disputed, as Milam’s version of the matter was not submitted.

Proximate cause is “a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.” 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’s 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.

Affirmed.

Purtle and Hollingsworth, JJ., dissent.