A Texarkana federal judge has handed the Arkansas Supreme Court a question about state law which will determine how lawsuits by families of the victims of a June, 2010, flood which killed 20 people in the Albert Pike Campground of Montgomery County will proceed.
A Texarkana federal judge has handed the Arkansas Supreme Court a question about state law which will determine how lawsuits by families of the victims of a June, 2010, flood which killed 20 people in the Albert Pike Campground of Montgomery County will proceed. Among the 11 similar lawsuits before the federal courts is a re-filed action by the family of Spring Hill High School teacher Debra McMaster, who was swept to her death by the massive flooding through the Loop D campground at the Albert Pike facility. The legal action by Jerry McMaster on behalf of himself, his daughters and the estate of his wife, was dismissed in part without prejudice in April, 2012, pending the filing of Mrs. McMaster's estate. The lawsuit was refiled in federal court in Texarkana in December, 2012, pleading the same allegations of negligence by the U. S. Forest Service of the original complaint; and, based upon findings from a September, 2010, report by the U. S. Department of Agriculture which concluded that the Forest Service made major mistakes in designing and building the Loop D campground. In her Sept. 30 order staying proceedings in all of the lawsuits, U. S. District Judge Susan O. Hickey defers to the Arkansas Supreme Court to resolve a question of the definition of the word “malicious” in the Arkansas Recreational Use Statute which provides general immunity to landowners in Arkansas who make their property available for the recreational use of others. The government has argued that the lawsuits lack jurisdiction as to the subject matter of the law involved because the state statute extends immunity to the federal government. Two issues have been argued as exceptions to that statute by the plaintiffs in each of the cases, including the question of a fee charged for entry into the campground and whether the landowner “maliciously” failed to warn or guard the campers against an “ultra-hazardous” condition, structure, use, or activity actually known to the landowner to be dangerous. “The definition of 'malicious' as used in the ARUS is at issue in this case,” Hickey writes in her certification order to the Arkansas high court. “The ARUS does not define the term 'malicious.' Plaintiffs argue that malicious conduct includes conduct committed in reckless disregard of the consequences, from which malice may be inferred. The United States asserts that malicious conduct is limited to situations involving actual malice or a desire to harm another.” Hickey notes that the interpretation of the term “malicious” in the state statute has never been defined by the Arkansas Supreme Court, giving the federal court no state precedent upon which to rely in applying the term relative to the Arkansas statute. She points to a 2010 case in Arkansas appellate law in which the state high court recognized the same question but declined to decide the case. That case, Carr v. Nance, is at the heart of the arguments on both sides of the federal cases. “Further, it appears that this question of law may be determinative in these cases,” Hickey writes. “Thus, this Court finds that it is in the best administration of justice to seek further guidance from the Arkansas Supreme Court.”