ALC-Claims Review/Litigation Reports Oversight

Good afternoon members. We'll start today's meeting with the litigation oversight portion of the agenda and then proceed with claims review. So Litigation over, oh. Any comments from the co-chair? You're good. OK. All right, uh, members, uh, we're going to go to B1. Agenda item B1 contains 8 litigation reports from the department of license and Labor. Will someone from the agency please come to the table? Introduce yourself and present the reports. Please present your first report and then pause to allow the subcommittee to take action before you move on to the next one. Lacey Kirchner, counsel for the department. Dan Parker, I'm general counsel for the department. You're recognized to present item B1A. OK. So item B1A is actually a lawsuit for which the department has filed against an electrical licensee to obtain a civil monetary penalty. And this is still currently an ongoing pending case before the courts. Have any questions for members? This is my first time using this new system from this seat. I don't see anything lit up here, so, um, do I have a motion to review? I need a second. I got a second. Any discussion? All in favor. Any opposed? Motion carries. Um, you're recognized for item B1B. Uh, yes, thank you, Mr. Chair. Uh, item B1B was a, a lawsuit by the department for a wage claim, uh, the defendant, after being served, actually made came up to our office and ask for a payment plan on that we were able to reach an understanding on how to pay the claim out and that has been paid in full and that lawsuit has now been. dismissed, right? Any questions or discussion for members? Seeing none, do I have a motion to review? A second, I got a 2nd. Any discussion? All in favor? Any opposed? Motion carries. He recognized for item C. Adam C is also a lawsuit on behalf of the department for 3 wage claimants and we have, uh, I had to go out, we had a couple of service issues so we have reserved those defendants and their answer time is still running, so I'll have an update for you as soon as that happens we'll be able to proceed as soon as they get their respond or don't respond to the lawsuit. Um, any questions from our discussion from members? Signano I have a motion to review and motion in a second. Can I have a second? Oh, I see a second. Uh, any discussion? All in favor. Any opposed? Motion carries. I B1D. Uh, this is a lawsuit filed on behalf of the HVACR Licensing Board against a licensee who has been issued a Right. Do you have any questions for members? Sing no. Any post? War against a Do you have any questions? Uh, um, motion of review. You got a I F is an HVACR licensing board suit, and this one has actually been dismissed as the respondent has come forward Motion carries. G again is HVACR licensing board penalties, uh, lawsuit. This one is still ongoing as we are having some service issues. You have any questions? See none, any uh, I have a motion to review. Second, uh, all in favor. And he opposed? Motion carries, and Last one is also an HVACR licensing board lawsuit and this one also is currently still pending as we're having issues serving the licensee. Any questions from the committee? Motion. I've got a motion to review in a second. Any discussion? All in favor? Any opposed? Motion carries. That wraps up B. Moving on to item C here. Thank you all. Thank you. And members as, as, uh, Miss Irby's coming to the table, um, item C, we have, uh, Uh, Couple on here, I C4 has requested and moved to the next meeting, so we won't be taking that up today. And without objection, Adam C3 will take up at the end after the rest of the business. So if anybody else is here that needs to leave early, they can go ahead and do that because that one might take a little bit longer. Uh, Ms. Erby, if you'll come to the table, I'll introduce you. We'll move on the claims review portion of the agenda I'm reading, reading out loud here. Um, For this part of the agenda. Uh, I'll read a brief summary of each claim, followed by any discussion or question from members and then the subcommittee will take action. On the items, items in Part C of the gender are denied and dismissed claims. The claimant in each case has appealed the decision. Ms. Johnson, please give a brief description of the claim. Thank you, Mr. Chair. Uh, item C1 is claim number 241401, Tyrone Grider versus Arkansas Department of Transportation. The claimant in this case sought payment for damage to his vehicle sustained when he hit a pothole on the freeway. Claimant did not specify the amount sought on his claim form. R dot denied liability and moved to dismiss the claim, claimant did not respond and the Claims Commission dismissed the claim without prejudice. Claimant now appeals. Do you have any questions from Well, actually, Miss Irby, does the commissioner have anything to add? Catherine Irby director of the Claims Commission. I don't have anything to add, but I'm happy to take any questions. Do you have any questions? I've got a motion. And I have a second, uh, the motion is to affirm, to affirm the ruling of the Claims Commission. Uh, any discussion. See none all in favor. Any opposed? Uh, motion carries, uh, Ms. Johnson, I C 2. Adam C2 is claim number 241402 Ladora Grider versus Arkansas Department of Transportation. Ms. Greer sought, uh, $693.85 in damages after she hit a pothole on Interstate 30. Ourdot denied liability and moved to dismiss the claim. Claimant did not respond and the Claims Commission dismissed the claim without prejudice, claimant now appeals. Miss Hervey does the claim commission have anything to add? No, sir. Happy to take any questions though. Any questions from members? Sing none do I have a motion to affirm the ruling of the Claims Commission. I got a motion. I have a second. Any discussion on the motion. All in favor? Any opposed? Motion carries, uh, that will take us to item C5. Item number 230927. Arthur Carson versus University of Arkansas for Medical Sciences. Claimants sought $40,000 in damages after he slipped and fell on wet pavement outside of UAMS. Claimant alleged that UAMS was negligent in failing to provide warning of slippery surfaces or maintain the anti-slip coating on the concrete and that UAMS. Employees were indifferent to his needs and denied him medical treatment. UAMS denied liability, arguing that it was raining at the time and any puddles would have been an open and obvious hazard. After hearing the Claims Commission denied the claim, noting that claimant provided only his own testimony that the slip resistant coating was fatigued and that UAMS's expert testified that the coating was holding up well. Claimant now appeals. And readers of the Claims Commission have anything to add? No, sir. Happy to take any questions though. Are there any questions from the committee? Sing none do I have a motion to affirm? I have his motion in a second. Any, uh, discussion. All in favors. I. Any opposed? Motion carries. And That will That's So everybody. We'll come back to C3 in a minute after we finish D and E on the agenda, we're moving on to item D. One miss uh. Moved. This is the corrections claim that was awarded. item D1 is a correctional claim that was ordered by the Claims Commission. The division of Correction appealed the decision. The subcommittee held that its claim at its August 19th, 2024 meeting pending receipt of research from BLR members, a memorandum providing that information was emailed to you and you will find that memorandum in your packet. Miss Johnson, please give a brief description of the claim. Claim number 221 393. This is item D1 is Michael Todd versus Arkansas Division of Correction, claimants sought $500,000 in damages related to injuries he sustained after a nighttime attack by another inmate alleging ADC negligently allowed security lights to be covered and understaffed barracks security. ADC denied liability and moved to dismiss the claim. After a hearing, the Claims Commission found that ADC was short-staffed when the incident occurred. And that the barracks lights had been covered. The commission therefore found ADC negligent and awarded $7,503. ADC filed a motion for reconsideration which the commission denied on the grounds that it did not set forth new or additional evidence not previously available. ADC now appeals. A survey, does the commission have anything to add and before you do, can you? Have your folks if they're gonna this is Micah Tucker, staff attorney with the Claims Commission. And I believe we have ADC council, state your name, both of you for the record, so that. We know who you are and your voices Micah Tucker, attorney specialist for the claim. You, you just turned off your mic. Oh, sorry. Chris Higden, attorney for the Department of Corrections. OK. Thank you. Now, Ms. Herby, do you have anything to add? I know that this one was held over for the subcommittee to look at the issue of jurisdiction and Ms. Tucker and I also looked at the commission files because I wanted to confirm that the issue of jurisdiction is one that the commission handles all the time with inmate claims. We look at it and they are frequently dismissed for lack of jurisdiction. So I know that the issue in this case or the question in this case that the subcommittee had was whether or not the, um, the commission had jurisdiction over this particular client. And that is something the commission is used to looking at frequently looks at, and in this case they did look at it and made, made a finding that they did have jurisdiction over this claim of negligence involving one single event. Thank you very much, um. Are there any questions from members looks like. Senator Hester. You are recognized for a question. So I think this is pretty apparent like, um, that this was, this was heard in front of the Claims commission. They made the ruling of $7,503. Did, did they, uh, and I'm sure that's in here, why did they come up with, how did they come up with that number? It's such an interesting number. Yes, sir. Um, oh, they awarded him $77,500 for in the amount for pain and suffering and then $3 was his copay for his medical treatment. So that's how they arrived at the $7,503. OK. You know, I, I found the, uh, in recent years, our, uh, claims commission has been very reasonable. When, when they actually take a case, right? I, I, I can argue different times with, I get frustrated when they don't hear stuff when we have got to be fair, but when they hear stuff, they usually come up with something pretty reasonable, but anyway, thank you for that clarification. Right, seeing no other questions. Um Do I, I have a motion to affirm the ruling of the Claims Commission, and I have a second. Any discussion? All in favor? Any opposed? Motion carries. G1. Now we'll move to E, uh, the part of the agenda, which contains 3 correction claims that were dismissed by the Claims Commission. The claimant in each case has appealed the decision. Um, Ms. Johnson, please give a brief description of each of the following claims. Thank you, Mr. Chair. Um, I E1 is claim number 230811. Edward White versus Arkansas Division of Correction. Claimants sought $900 in damages related to a lost property claim. Claimant alleged that 3 separate ADC officers violated ADC policies leading to his loss. He alleged that one officer packed up his property after he was placed in isolation and left it unattended that a second officer failed to ensure claimant's property was properly stored after claimant inquired about its location. and that the third officer failed to look for claimants stored property when claimant was transferred several weeks later and forged claimant's signature on a pre-transfer property inventory sheet. ADC denied liability and moved to dismiss the claim. Claimant did not respond, and the Claims Commission dismissed the claim without prejudice for failure to prosecute. Claimant filed a motion for reconsideration which the commission denied, noting that claimant could refile his claim as permitted by law. Claimant now appeals. Serving. Does the commission have anything to add? Yes, sir. I believe this one was dismissed. Um, Not on the Hm ADC did file a motion to dismiss. Is that correct? This one was dismissed for failure to respond to a letter. On that one. I just wanted to clarify that. If that was different than what Ms. Johnson said. Sorry. Do we have any questions from the committee? Seeing none, do I have a motion to affirm the ruling of the Claims Commission. I have a motion. I have a second. Any discussion on the motion? All in favor. Any opposed? Motion carries, uh, item E2. Item E2 is claim number 240391 Hezekiah Satterfield versus Arkansas Division of Correction and Arkansas Department of Finance and Administration Office of Child Support Enforcement. Claimants sought $1,807.26 in damages alleging that ADC and the Office of Child Support Enforcement, unlawfully seized his federal tax return and applied it to back child support. Both respondents denied liability and moved to dismiss the claim with the Office of Child Support. enforcement arguing claimant had child support arrearages of almost $9000. The Claims Commission dismissed the claim, finding that in the absence of proof that claimant had exhausted his administrative remedies, it did not have jurisdiction to hear the claim. Claimant now appeals. Serby, does the commission have anything to add? No, sir, but I'm happy to take any questions. All right. Any questions from the committee? Signan do I have a motion to affirm the ruling of the Claims Commission. Motion in a second. Uh, any discussion? All in favor? Any opposed? Motion carries. I E. Item E3 is claim number 240463 Travon Higgins versus Arkansas Division of Correction. Claimants sought $10,000 in damages related to an alleged unlawful use of force. Claimant alleged he was in a locked shower waiting to be placed alleged he was in a locked shower. We're experiencing some technical difficulties. apparently, um, my apologies uh claimant alleged he was in a locked shower waiting to be placed in a cell when he requested to use the restroom after a verbal altercation claimant alleged that an ADC officer pepper sprayed him, then sprayed him in the face with a water hose at maximum pressure. ADC denied liability and moved for summary judgment. The Claims Commission granted the motion and dismissed the claim, finding that it lacked jurisdiction. Because claimant's claim could be held in a court of competent jurisdiction. Claimant now appeals. Ms. Hervey, do you have anything to add, but we're happy to answer any questions if you do. All right, uh, do you have any questions from members of the committee? Seeing none, do I have a motion to affirm the ruling of the claims. I've got a motion. Do you have a second? Second, uh, any discussion on the motion? All in favor? Any opposed? Motion carries. Members, if you'll jump back up to item C3. Adam C3. On your agenda. Item C3 on the agenda is, um, Ms. Johnson, would you like to give a brief description of the claim. Item C3 is claim number 220574. Nina Palfrey versus Arkansas Department of Transportation. Claimant filed in October of 2021, seeking $568,000 for property damage that she alleged was caused by R dot negligently approving a road construction debris dump site uphill from her property. Claimant alleged that a contractor hired by Ardot dumped the debris in 2006, causing the land above her property to begin to slide as a result of the slide. Claimant alleged that she lost one house in 2015, a second house in 2020, a sawmill business, and between 15 and 18 acres of land. Claimant also alleged that the slide is still ongoing and causing further property damage. Ardot denied liability and moved to dismiss the claim based on the three-year statute of limitations. After a hearing, the Claims Commission denied and dismissed the claim due to the expiration of the statute of limitations. Claimant filed a motion for reconsideration which was denied on the grounds that it did not set new or additional evidence not previously available. Claimant now appeals. Ms. Herby, do you have anything to add? No, sir. Happy to take any questions though. Right. Um. Senator Stubblefield, you have a question? Chairman, thank you, Mr. Chairman. How did, how did the, uh, A couple acquire or added or not acquire this land. This dumping I mean, was it personal property, someone else's. I think that the I think that the construction took place on an adjoining piece of property, but I know that council is here from the Department of Transportation that may be able to give more information about those specifics. That was not part of the he wasn't on the lady that lost the houses. Of the family that lost their houses I believe, I believe it was uphill from the claimant's property. How, how much debris was dumped? That's going to be a question for the department is here as well as representation of the claimant, if you'd like to hear from one or both of those, um. Uh, I guess start with the department since the question was, and then we'll hear from representation from the. Claimant as well. Good afternoon. I'm Michelle Davenport. I'm the chief legal counsel for the Arkansas Department of Transportation, and I have with me the staff attorney who was responsible for handling this matter. Good morning ladies and gentlemen of the committee. My name is Alex Dinker. It's very nice to meet all of you. And Senator Stubblefield, I believe your question is this was not a road acquisition process. There was a road construction project that was adjacent to this particular piece of property. In the course of that, a dump site was approved by the commission for the use by the highway contractor at the time to do that. It was actually offsite dumping that occurred. Um, I will let Mr. Dinker speak more to the, um, Facts of that. However, that road construction was many years prior to the action that is being filed here today, and they actually settled with that contractor for the damages for that original slide and damage that was acquired, um, during the road construction process, but I'll let Mr. Dinker walk you through a little bit more information on the timeline of events because that's very important in understanding what happened here. Uh, good morning, ladies and gentlemen again. Um, this is just a broad overview timeline. You've heard kind of a, a general fact pattern, but the, the timing is important as this was dismissed pursuant to the statute of limitations. So this was a job, uh, number 090195 through the Arkansas Department of Transportation and our general contractor was LNN Construction. All of the work that was performed their last day on the job, all of the dump site that they had done was completed January 6, 2006. The property was bought then by the plaintiff on May 24, 2008. And it wasn't until December 15th, 2015 that the first home was caught in an apparent landslide. Um, after that, uh, county employee attempted to use machinery to remove the mudslide, but was unsuccessful to save the home. Um, on September 11, 2017 our plaintiff files a civil lawsuit against our general contractor, Ellen N Construction in Madison County, Arkansas to recover damages specifically for this landslide. Um, sometime in 2018, the plaintiffs begin to build a new home on the same property about 5 acres away from the original home. And in 2020, that second home was caught in another apparent landslide. Um, on January 29th, 2021, and May 10th, 2021, the Pellf freeze and LNN construction filed motions for summary judgment in their civil lawsuit in Madison County, Arkansas. Um, on August 3, 2021, the civil lawsuit that I just spoke about was dismissed with prejudice pursuant to a settlement agreement between the parties. Um, on October 30th, 2021, that same year, plaintiff filed the instant action against the Department of Transportation seeking damages for the same issue. After a few competing motions to dismiss and a few amended complaints allowed by the commission and a handful of other pleadings. Uh, the case before you was put to a hearing on the standing motions to dismiss on February 22, 2024. And the Claims Commission filed an order dismissing the claim as it was barred by the statute of limitations on February 27, 20. How, how much debris was And much debris was dumped. Uh, I'm, I'm not sure of an actual amount or how to answer your question. There was no, there was no structures below. The dumping site. At that time when they dumped the material I'm not positive at what date the house was built. I can only tell you that the property was not in ownership of the Pell freeze until 2 years later from that job site. Well, it takes a pretty good pile of dirt to take down the house. Yes, sir. So they were they were they gonna haul this material somewhere else and someone offered us closer site to save money or. How did this come about? I don't believe we have all the specifics of the job with us at this time as the hearing at the time was focused just on the statute of limitations and the time frame that I believe those matters were litigated during that civil litigation that wasn't happening during the department's action, um, at the time, I know that there was Madison County, we have a lot of different areas. We've experienced other kinds of slides in that area. As far as we knew, the work was being progressed according to specifications, but I don't have the specifics on. Exactly how they chose that particular offsite area for their dump site. Surely the Department of Transportation had engineers to look at this ahead of time. Yes, so we would have looked at everything that was within the job limits, as you know, contractors often can make outside agreements with landowners for the disposal of their rubble, and that's the situation that was here today was that it was off-site location that met the environmental standards that were present, but was up to that contractor to comply with and make sure that they fully adequately supported that and that's my understanding of what happened in that civil lawsuit. Thank you, Mr. Chairman. Yes, thank you, Senator. Um, did you have some I, I guess we have several different, uh, folks signed up here. Are your questions for the department or for the, the plaintiff. OK OK, so we, we'll, uh, if, if you're, if your questions are not for the department right this second. I'm gonna jump to whoever's for the department and then we'll call, call the others up, uh. Next up, we have Senator Hester. Thank you So I'm just, you know, I think there's a reason constitutionally we have this, this committee, right? We want to make sure that people of Arkansas are treated fairly by the state. Uh, the. Like who should, like, if these people buy a home. An action of the state destroys their home, who should be responsible? Like they just are out of luck. No, sir. I would say that, and again, we follow the same procedures and if there had been damage that they believed that was proper to bring against the state, it should have been brought at the time that they brought the action against the contractor. So this is following the same rules of due process and civil procedure that are followed in courts of law that are handled in any situation like this. They had the opportunity to bring that claim against the com um, Highway commission and Highway Department at the time the damage occurred. These folks were not the landowners at the time that the contract was entered into or that the job construction was completed. However, even with the discovery of a slide at a later date, they still had, again, the three year statute of limitations that that opportunity to come back and say that there was negligence in some manner alleged against the department. Again, that hasn't happened. It didn't happen in those three years. We're many years down and further even 3 years after the second slide that occurred in the. area. So, no, sir, I, I believe everyone's entitled to due process. I just believe it was not executed by the plaintiffs of coming against the department within the designated period of time. Sure, yeah, I, I got that in the early testimony that they weren't the owners when the, uh, when the dirt was put there, where they were the owners when it moved from the neighbor's property onto their property and took out their home. So I, I guess, you know, I've been sitting on this committee for 12 years and I've learned it's a circular argument. So the circular argument is this if they had filed with the Claims commission while they had an ongoing, uh, civil matter, you would sit here and say dismissed because they haven't, uh, remedied all other actions. And if they take the time to remedy all other actions, then you say, well, you're too late. So it's a circular argument. I've heard it for 12 years and I, at the end of the day, we are responsible to be fair to the people of Arkansas. Can, uh, would you not be sitting here 3 or 4 years ago or 5 years ago claiming that, um, That they should have. settled their civil argument first. And to speak to that point, we actually have several procedures in which we voluntarily hold matters in abeyance regularly for those matters to be concluded. And we have multiple of those that happen in personal injury matters so that they can pursue any other outcomes that are available or under insurance or contingencies. We do not oppose those motions to hold something in abeyance to exactly for that reason. If they're coming to the department after that statute of limitations again following The same standards that are under due process in any other matter. No, sir, that's the situation and that's how we tend to operate at the department as we do not oppose those motions to hold things in abeyance in that situation. Senator Hester, if I may I just jump in from the commission's perspective, um, the commission does, as Ms. Davenport said, It is it is not unusual for there to be parallel litigation where we have one action proceeding in circuit court in one claim that has to be filed at the Claims Commission, and both have to be done within the statute of limitations, but in order to be efficient with taxpayer resources, the commission asks that all other underlying or parallel litigation be resolved before the Claims Commission claim proceeds. And so in that situation, as Ms. Davenport referenced, it is typical for either the Um, agency to file a motion, one of the parties to file a motion or for the commission to bring it up on its own saying we're going to put this in advance, we're going to put this claim on hold until that underlying litigation is concluded, at which point, if you still have damages that have not been covered and not been paid by other parties, come back and if this claim needs to proceed at that point, it can't. Thank you. I'm done. Right, uh, Senator Rice. I got my answer. All right. uh, Representative Jean. Play with chairman. Uh, you said that this thing didn't happen until 2 years after they purchased this property, the land, the mudslide, the first, uh, home that was destroyed was in 2015. The 2008 date was the original time that the plaintiffs bought the property. 2 2008. 8 All right. What, what year did they start dumping on the adjacent property of the dumping work was done, uh, January 2006. All right, um. Do we know What the settlement between the contractor and the people so we don't know what that number is. The department is not aware of that number, um, Ms. Erby may have have any idea? I believe that it was less a better question for the plaintiff when they I'm just saying if they have it I'm gonna ask the plaintiff too I, I, I think they may share that, but I can't speak for them. There was an argument raised at one point by the department, um, That because the claimant did not recover policy limits from LNN Construction that they could not now proceed for additional damages against the Department of Transportation. So I don't know the exact amount, but I, I believe that it was not at policy limits. The the contractor's policy, yes. Thank you. Right, Representative Gazaway, or is it for the department? All right, you're recognized. Thank you, Mr. Chairman. What exactly is the theory of liability that's been alleged against the state of Arkansas technically, it's negligence. Um, a portion of our argument was that they failed to prove grounds that established a prima facie case of negligence. Um, however, their second amended complaint also couched in an apparent attempt to achieve a trespass to lands. Argument, uh, which we argued, uh, could not survive as well. And so your argument is, is that. The Essentially they're barred from suing the state of Arkansas at this point, statute of limitations on a negligence theory and on a trespassed alliance theory. The statute of limitations for any tort action in the state of Arkansas is 3 years, um, our argument is that that began to run 2006, and, and so they are just simply out of time on this. Uh, the trespassed to land, we didn't, um, Uh, uh, approach a statute of limitations argument because, uh, proof of ownership or right of interest to the property is a requirement for that trespass of lands and and they clearly did not buy it until 2008. Is there any reason based on the facts that you're aware of? That they would have some argument that there was some type of fraudulent concealment or that they, uh, they would not have known of this condition until a later time it didn't reveal itself or they had some assurances to, to believe that this wouldn't have been a problem for him. Yes, uh, Representing Gazaway, we address that specific point, um, in one of our responses, essentially the plaintiff's allegations and contained in one of their complaints. Forgive me, I don't have an exact citation for you. Uh, they described the area that we, uh, how our general contractor dumped the debris as big enough to land a helicopter on, uh, so we use that, uh, basically to illustrate that there's no attempt to conceal or or anything. Like that, there's no way that you can hide that amount of debris. But the size doesn't necessarily indicate that it. would move. Right, I mean, would you agree with that, I would agree with that sentiment, however, um, we didn't get to fully brief or or litigate that topic. Uh, I'm just providing the information as I have it. All right. I, I'll wait to hear from them. I'd like to hear the plaintiff's side of this, but thank you very much. Just so I understand you, you, you're saying the statute of limitations ran out 3 years from the date of the end of the construction in 2006, not 3 years from the time when the dirt hit the house in 2015. That's correct, Senator Dodson. So They didn't have any idea that dirt was going to hit them in 2015 due to actions from the department. Until after the statute of limitations was long passed in your, yes, and, and council at the time for plaintiff attempted to create a sentiment that there's a known or should have known element to this, that just simply doesn't exist and we weren't able to discuss that at length. Well, I think a mountains sliding down toward my house, I, you should know, um. Ms. Her, if I may jump in. So the commission addressed this issue, um, I believe at the February. 2024 hearing and found specifically that there were no allegations of fraud or concealment in this. And so, that's how you told a statute of limitations. The Arkansas Supreme Court has been very clear that the statute of limitations begins to run at the date of the wrongful act complained of, and at no other time. So there was an argument. About the continuing tort theory that this was continuing over a period of time. And in that same case, the Arkansas Supreme Court said they have rejected the idea, the continuous tort doctrine, that it does not apply in Arkansas. And so in the absence of allegations of fraud, which there were none in the absence of allegations of concealment, which there were none. There is no basis to to the statute of limitations. OK, Madam co-chair, you're recognized don't even know if this question's gonna make sense. So you place the dirt there, there was the homeowners ever told about this dirt, this amount of dirt that was uphill from them. In any of the litigations where they warned about This massive amount of dirt being placed above where they've just bought a home. That was built a home. That was not part of the commission's order. I would expect that that may have been something that came out during their inspection when they were purchasing the property, but that was not part of the claim made my point. How are they supposed to know? That it's gonna move from date of. When you put the dirt there. You're saying 3 years from the day they put the dirt there. Starts The time of When they, how much time they have to do it. But they were never probably told about the dirt. I'm like Senator Dodson, there's no way they would have even known to even ask any kind of questions about dirt movement or anything if they had not been told about the dirt, and we're not ready to immediately file suit on something that had not happened, but Representative V, even if the statute of limitations, even if you argue that it began to run when the first home was, was, was destroyed saying they're saying when the dirt was placed there. I, I understand I'm just saying even if it was in 2015, they still didn't file the lawsuit until 6 years. I get that. I get that, but I'm having a hard time understanding is we put dirt somewhere as the state. And we say 3 years from the date that that dirt was placed there. Those people had to know that the dirt was going to move, crush their house. The second house, I'm not even talking about the first house, they, they should have known from when the dirt was placed there. That's like something you can't know. That's like saying, I'm gonna build a house here and maybe we won't have an earthquake, but you have an earthquake, and then what happens then? I mean, you don't, you don't know what's going to happen 3 years down the road from that dirt that was placed up there. I'm so confused on why that was the start date. I understand what you're saying, Miss Irby. I want to know why this was the start date. Where the dirt was at. And I don't know if y'all can explain that to me. That's the craziest thing I think I've ever heard. And that is the operation of law in this particular case is if you're asking about negligence in that standard, then we have to go to when the action took place. I will say that the, the roadwork was open and continuous. It was not concealed in any way. The the dumping activities had occurred over that period of time and it was not then at that point reseeded. It was available and open to anyone to see that there was least disturbed dirt in that area. Now, again, the department had no idea that that would also slide in that situation. Everything was complied with based on the, um, specifications that were there in place. We believe they would have been followed. There was no complaints against the contractor at that time. And again, this was an off-site action by the highway contractor, and there was no indication, again, like you said, that no one knew it was going to slide at the time. That's why we have situations again, in insurance and following the statutes. That that 3-year statute of limitations when we go back to represent the state, we have to look at what the statutes allow and require. And as there were no evidence of that, we're simply following the statutes and the way that it is laid out in Arkansas law and has been interpreted by the Supreme Court in this matter. Um, Ms. Erby is correct that even if we were talking about when the action occurred in the first place at 2015, um, the action was not brought against the state at that time either. Um, so. We've had many years of this being a situation where the estate was not brought in to, uh, assume any type of responsibility or negligence by the plaintiffs until many years after the action had occurred. Right. Thank you. Um, Representative Beck. Thank you. Uh, So I'm gonna try to, I'm not a lawyer. So OK, but, but I'm an engineer and I do. I just want to establish what the highway department transportation department feels as far as who's responsible for what. So you, you hired a contractor and they dumped some obviously where they shouldn't have dumped it. All right, do you have in your opinion, is that just totally on their liability, not your liability because they just, you know, you basically paid them to dump it, they should have had insurance or whatever to do that and so you have no responsibility to this. And again, on this particular one, that particular part has not been briefed. I have not had an opportunity to go back to the 2006 road design part, but under our standard specifications, yes, that off-sites off-site locations that are determined by the contractor in that manner are typically under the control and activity of the contractor. And so they would bear the responsibility for that offsite location. If this was happening on the actual right of way of the job, then we have ways of dealing with that. Through, as you mentioned, the liability insurance of the contractor to the state for the damage to the roadway. Off-site conditions are covered by their insurance at that part and so under our standard specifications, yes, we typically would have held the contractor liable if it occurred on the right of way. If it's a damage outside of that to property, yes, if they have brought it for the Claims commission at that time, then we would have been looking at the facts of that situation and assuring that all engineering studies had happened and it wasn't just an act of God for A slide that has happened, um, due to that location, but that was not reached in this matter. I don't have a full brief of that, but I'm happy to look back into additional engineering information about the job when it was done to see whose liability was there at the time. So I, I guess I'm getting to, I'm trying to get to the point and I'm not trying to pick a side here. I'm just trying to get to the point that pretty clear. You're saying I'm a contractor. By the way, I used to do excavation work and I take my dump truck and I dumped it in the neighbor's yard over here. You're saying it's not on the right of way, it's not my problem. And again, I hate to speak in generalities because it depends on the specifications. If that was a, as in this case, I believe it approved dump site, there are certain limitations such as stormwater, things of that nature that we do take responsibility for and ensuring that our contractors comply with. But given the facts of each individual's Each individual situation, it's very difficult to say under the specifications, whose responsibility that would fall under at that point and whether or not that would be a proper matter to be brought as a claim under the Claims Commission. If the contractor did not take care of it, then I'm sure the liability would have flowed back to the department, but the first off is always that contractor. If they acted negligently outside of the department's contract and our specifications, then yes, that responsibility would stay with the contractor. Just one more question more a few more on the list. So just one more. So it, it seems like there's an we're kind of dancing around stuff because she says things like, well, now, where they dump it, which indicates to me that you're talking about if they're getting dumping it somewhere where it would get washed away and down in a river and cause an environmental problem then hey we take a look at that. But then the other the other hand, you're saying, well, if it's not on our right away, it's not our problem. It seems like there's two different things there that you're absolutely right, sir, and it's because we're under a 404 Clean Water permit for any of that off-site locations that might enter a roadway, we would have responsibility because we have a responsibility under a permit with ADE but it's offsite. Even for offsite you have no responsibility if it's off your work site or not on the right of way or it doesn't affect her right away, and that's why I'm making the distinction between a 404 permit, we have to assume the responsibility for any stormwater activities on those off-site locations. That's why I made that distinction is that there are some limited cases where we have off-site responsibility for stormwater purposes, but that's OK. I'm sorry, I won't next one members I've got 4 more in the queue for. I'm assuming the department and then I'm gonna bring up the plaintiff and let them, they, they have some handouts, I think. They already have the handouts. You should have some handouts. Uh, the stack of them starts with red oak homes, um, that, uh, is at your desk, uh, to, to review. So Senator Stone, uh, you are recognized to. Ask a question of the department. Thank you, Mr. Chair. I have just a couple of questions. I think Ms. Davenport did I understand you to say earlier in your testimony that there were other areas of Madison County that had landslides too. I believe so when I was previously with the department. I know that there was a section of Highway 16 that had a slide, um, at one point when I was a staff attorney there. I don't remember if, um, how close it was to this location. Had they had landfill dumped on them prior to the slide that I'm aware of, but again, it was on the north side of, um, Highway 16 on the pig trail that resulted in lane closure at one point. And uh to Senator Stubblefield's question, if we knew how many yards of material that was dumped on the adjacent property. Then we could determine how much came down the hill and so was it the dumped dirt that slid down or was it the dumped dirt in addition to the, the base load that was already there that slid too. I'd be curious to know, to know that answer. We'll be happy to research that and get that information to you and to the committee if that's something that we can do for you. Thank you, Mr. Chair. Yeah, I'd like that. Right. Look at that. Senator Blake Johnson. you said the liability lays on the contractor. Do you, uh, examine these offsite dump sites. Prior to Beginning of construction. I would actually have to go back and double check and see what the procedure of that is. Again, I'm my familiarity was more from the, um, stormwater permitting section that I know we have responsibilities with some off-site. I would have to check back and see if this was the type of off-site that was inspected by the department prior to, um, the thing, but it is my understanding we did inspect this particular off-site location prior to allowing it to be used. So if, if you did inspect the, the offsite dump site. Would have your recommendations been different? If there was a house. In place In 2006 or 2005. Whenever it was. Whenever the construction began, Compared to. Later or what, what would your recommendations been? Would, would have been different? I can't speak to the engineering. I don't know exactly what was inspected at that time. I know they must have inspected it to see if it was suitable to receive off-site material. I do not know the categorization or what factors were looked into and what distance surrounding that site was evaluated. I cannot speak to that. Thank you. Thank you, Senator, um. Representative Jean. Thank you, Mr. Chairman. Let me get this straight in my mind. All right, the, the dump site for the material. Did the contractor. Secure that or the state of Arkansas secure that. It was the uh choice of the contractor and all we did was approve the choice. So y'all, y'all looked at it and approved it after he I believe we didn't. Yes, sir. Did the, any of the state's trucks backhoes or anything, track holes in that site or was it all the contractor? I am not sure about that, if, as we're doing additional research, if you would like something along those lines we can attempt to get that to you. Um, normally with general contractors, they do not use the department as a subcontractor. I can only speak to generalities in this instance though. And is this project finished? Yes, sir, it was finished the contractor has been fully paid. OK, by state dollars. Yes, sir. Thank you. Right, Senator Rice, thank you. I'd step out just a minute. Let me just go back. This property was originally owned by somebody that agreed with the contractor. To have dumping there, correct? I believe the dumping took place on an adjacent landowner, not on this particular landowner or the person before this land. When it was dumped on. This land was never dumped on the slide occurred from a adjoining property owner that entered this particular piece of property, but at the time that the roadway was, I, I, I want to make sure I'm accurately answering, but that this slide occurred from an adjoining property owner onto the Pelfry's property. Was the adjoining property dumped on. Yes. That's where I want to get back to. The owner of the adjoining property. Agreed to have things dumped on them. They got compensated. Yes, sir. Then they sold the property. Correct or not. I don't know if the adjoining property owners sold. OK, do they still have it? I, again, I don't know if that particular piece of property has changed hands. I know that. They're not contractual. Agreements. That the person that gets compensated to get dumped on his property. It's got to hold somebody liable. You got paid. For this to happen, uh, it wasn't in their intent for it to slide. But it did There ought to be paperwork on that. I agree, sir. I do not have a copy of that paperwork, um, with me today, but yes, I would say people got damaged, uh, and, and that's another deal. Uh, but that's what I wanna that's what I wanna know. It's not listed in here. About the original property owners, you're, you're saying they may still own it. I thought if they sold it and didn't notify. Or didn't do whatever you said due diligence or whatever it is in their their sale there would be some liability there. OK, I, uh, when you get around to it, I'm, I'm like to hear from the other side. All right. We got 2 more and then I'm gonna bring this other side up. I know I said that before, but Senator Penzo. Thank you, Mr. Chair. Um, I'll make this kind of quick. I, I jumped in the queue when, uh, I was gonna ask if the approval site was, uh, if, if the site was approved by ourdot and you answered that question, um, I would, if you don't know the answer now, if you could find that out for me, I'd like to know what that approval process entails. I mean, was there soil morphology analysis done, um, because to me, if landslides from one area to the other. That area is uphill, so apparently RDOT approved a site that was above the property. So when the, when the plaintiff comes up, um, or, or their representative, I'd like to know if uh if uh there was a house on the property at the time, uh, that you bought it. Um, also, is there, uh, was there a. Any kind of information in the property disclosure that stated, um, that there was, um, cause, cause to me, if, if the site was approved by ourdot. I, I don't want to know what that process look like because, I mean, I don't understand stacking dirt uphill from another property with a house. That sounds kind of. illogical to me to, for, for that site to have been approved to where, you know, you dump how many metric tons of dirt on the property and then all of a sudden it's sliding downhill causing two separate landslide events, uh, sounds like they've built second property back from the first one and it slid further and so they, their property is pretty much worthless now if, if, uh, I sell real estate, so, um, this, you know, and I've got a background in geology too, so I'd, I'd really like to understand the approval process. On that. So if you don't have that answer now, if you could find out for me, uh, why they're up here and then maybe come back up and explain that to us. I'd appreciate it. I will, and I'll reach out and see what those approval processes looked like in 2006 or prior when this particular road work was initiated. OK. Sounds good. Thank you. Senator McKee is yours for the department or for the? Yeah. For the department? OK. Senator McKee, you're recognized for the department. Thank you, Mr. Chair, uh, if Can you tell me if the Rolls were reversed and you had a private property owner and they had a landslide that damaged state property. Um, Would we make them pay to fix it. I would have to actually look at the situation because I know that there are sometimes there are acts of gods that no we do not actually require them to go back in and fix it. However, we would expect for them to notify us right away that the action had occurred and we would, would there be a statute of limitations on that process? Absolutely. If we were going to require payment back from a person who injures or damages state property. Yes, sir, we follow that same standard and same statute of limitations. Is it the same statute? OK, that's why I'm asking because I didn't know. Thank you. All right, um, stay close by and then we're, we're gonna, I'm sure, probably have some more questions for you. Um, uh, we're gonna bring up the plaintiffs now and I think they have a, A brief Presentation of Some things to. Maybe clarify some of the questions that people have. Um, That way they're just not If you would state your names for the, for the record, just push the button there and you're, um, light should turn up green. My name is Kinna Palfrey. OK. Doug Pelfer, Doug Pelfrey. And Bob Ballinger, um, appreciate you guys and your service. And, and frankly, thank you so much for taking such concern and, and having questions on this. So happy to, to, um, To answer any of those questions. In fact, I have a bunch of those questions that I'd like to start off by answering those and then we can, uh, then we can work on doing the presentation and I will try to keep it just as brief as possible, you know, it'll be up to you if you guys still have questions. So real quick, um, on the statute of limitations. So there's a couple of different things. One, we start off with is that at this point, my clients have zero legal rights to any kind of compensation. You start with the, the, the state sovereign. You're, you, you know, we, we can't sue the state, right? So now we're in a position where the whole reason why the claims committee exists is to make it where if there's a situation where an agency of the state is abusing a citizen, then there's a way to try to make it, make it right. So, we'll start with, you know, statute of limitations, got it. This committee is not bound by that. But having said that, setting that aside, your claim is not ripe until the fact that you get to the point where, where you know that you can't be made whole. And so until they're denied by their insurance, the claim would say where they're completely denied by insurance. And then the claim against the contractor, they settled for $225,000. And so why did they settle for so small? Well, they settled for 225,000 because the contractor make great arguments that they did not have liability. They pointed to the contract. You guys have a copy of the contract. If you look on the, I think, 3rd page of the contract was specific provisions. You look and the contract they signed said you're going to follow the direction of the engineer of the Department of Transportation. That you, you, like he has no, no ability to do anything besides that. If you look, there's a, there's a document, um, titled, it's, it's one of the, the ones, uh, it's a document that, that it has a review the last page of it has the plaid on it. It's the document that that the contractors submitted to the Department of Transportation or, or highway department at that time submitted that for approval and the engineer approves it. The engineer went out ahead of time, looked at the site, or at least he signed off that he did and approved the site. And then afterward Words after the, the debris was dumped, he went out and inspected it and said, you know, boom, here's our stamp of approval on that. And so the contractor, legitimately, they could have went to court and got 0 out of it. And so that's why they ended up settling in 2021 with a contractor. At that point, that's when our statute of limitations starts ticking, except one other thing. What Arkansas Supreme Court has recognized over and over and over again is the idea of continued trespass. So if you, usually where this comes up is when the state does something that causes flooding on people's. Property But if the state does something, so to the point where they're continuing to impact the people's property, then that, that statute of limitations doesn't, doesn't run until that, that, uh, item of remedy. The state's debris is still moving across my client's property. So in theory, you could say that the statute of limitations still doesn't run. In fact, let me say this, that the, the, uh, Department of Transportation, and they were very zealous and did a great job through the claims I didn't represent the Palfres through the Claims commission process, but they did a great job of being Being strong advocates for the agency. I, I, I think that's in a, in a private sector standpoint, I think that's the way it should be. In this case, they're being, they're being zealous advocates against a citizen just trying to find a way to get to relief. They just wanted to have their case heard. They wanted to get the merits and instead it was one procedural motion to dismiss after another procedural motion to dismiss. And these citizens are not, don't have unlimited resources, right? The state does. The state attorneys are paid with tax player. They can continue to file a motion after motion after motion where, you know, the, the pelfrys, my, my clients don't have the opportunity to do that, or they do, they pay for it when they do. And so, you know, I, from my standpoint, you know, the whole idea of the Claims commission so people have an opportunity to be heard so that citizens aren't being abused and they don't show up with pitchforks and torches, right? You know, the, the idea is that, is that people will feel like they have an opportunity to, to be redressed even when there is sovereign immunity. All right, so I think it satisfies if I were in a court of law, I believe I win on statute of limitations because claim wasn't ripe until after we knew whether or not they'd be made whole, and I'll, I'll put on evidence to show that 225,000 doesn't get touched being made whole for my clients and then the other thing is continued trespassing was relatively, um, recognized in by the Arkansas Supreme Court. And I think we went on statute of limitations. But then, uh, the, the other thing is I feel like, you know, we have an obligation to, to make sure justice is carried out, not, not on a legal sense because legally they, like I said, they're. nothing legally, but from a moral standpoint, as citizens that they should be compensated when the state does something that is clearly within the state's responsibility. So in that, The state itself had the responsibility to decide whether or not that that site was and had the sole responsibility to know whether that, whether or not that site is adequate, was adequate, whether the dirt was going to move and, and look, I, you know, I think it's irrelevant whether or not my clients own the property, but guess what? My client's great granddad settled that property when the vehicle broke down, when they were trash. So in 1905, that was in my my clients, their house was being built and was, was built there, was, was started when That when the the debris was placed there. So if they did it in looking around, they would have seen a couple 100 yards downhill was a was a home on this, you know, ancestral property of my clients that, that, by the way, is a moonscape now, is not we'll, we'll show you pictures and evidence showing what it looks like, but it's a mess, even still to this day. Um, so the The OK, and I think that that, that kind of covers that and I want to get into the presentation, try to make it as quick as possible so that you guys will have the opportunity to, uh, to do it. What is that? Yeah, let me see this. So I thought that would show the, the, let's see if that does. OK, there you go. All right, so this is just a, a, a picture because it's supposed to impact you and see that, you know, the house was trashed, but we'll get lots of pictures of that. But, but the real question is, you know, this is what they had previously, right? So they had a 33,288, something like that square foot home that, that Mr. Palfrey built, um, actually milled some of the lumber for the house out there. Beautiful home, and the, you know, landscape. I mean, it's just a beautiful, you know, they're, they're forever home, right? So this is a, a place Just like, you know, just like your homes where, where they raise their kids, where their, their families came and gathered. I mean, as a, as a beautiful place, um, and I, I, you know, apologize for my client's legs. I, you know, that part is inevitable, but, um, that was. Levity, but not very good, delivered apparently. But the, you know, it was, it was a, a place, a gathering place for community, friends, family, that, that they had. OK, so this is actually an important picture because what it does is it shows you their, their view off their front porch and somewhere right around down here is where the 2nd house was built. So it wasn't built up against the same hill that slid. They built the their, their house after the slide, the slide and actually they kind of speak of it as if it's two slides, really it's not. It's one continued slide, but after the slide wiped out their first house, they were homeless. They needed a place to live. This was their ancestral property that they wanted to live on the rest of their life and so they built, built down across this pasture and you see it's relatively level, so it wasn't like up against the, the same hill. And by the way, they got advice from an engineer saying that that would be a safe place to build. So I, you know, they hate it that they lost two houses in this process. Believe me, that's that all of their work. And everything that they, they put into it, you know, they don't, they're not happy about that, but to me it was very reasonable to think that you could go down 100 yards and build a second house across a relatively level pasture. So their second house that they built, it was, uh, you know, 13 or uh yeah, 13,388 square foot cabin, Cedar cabinty, milled the the cedar out at his place, put his energy and attention into, into that, and that's the second house they built after the 1st. So the question is what happened, right? And we talked a lot about, about what happened, but essentially the, the, the field that the, that the state placed. And, and when I say state, it was a contractor who placed it up there, but they would not have placed it there but for the approval of the of the of the state and you've got those documents and they're showing that one of the contract, they had to is only by discretion of the, of the, the, uh, um, state, uh, engineer, and then two, they were he actually submitted that prior to and got approval by the engineer and the question was whether or not state vehicles put out there. I don't know that dump trucks from the state was out there, but I can tell you a state vehicles out there when the engineer went out there a couple of times to inspect it and say, yeah, this is a good place to, to place it. And that's the problem is right. It'd be nice if they would have got full recovery from the, from the contractor, but it, you know, the contractor, if I was representing the contractor, I'd say, look, he did his job, he fulfilled his contract. He didn't have responsibility to inspect. The failure was on the, on the state. So, if you look as you, as you go through Wiped out their house and, and I, if, uh, I, I don't want to do, do all the talking, but I do want to try to get here quickly. But if, if Ms. Palfrey will share the story about how they first found out about the, about the first slide in 2015, if, if the chair is, is willing to hear, I think it'd be, it's a good idea. Go ahead. Uh, my husband and I had gone with our church youth group to Branson for a youth rally, and we woke up the next morning and had multiple missed calls on our cell phone and like all of you, we were like, oh Lord, what's happened, you know, um, so we, um, got in contact. Uh, as, as we've already established this is family land, so his dad and brother were close by and they told us that, uh. The hill had just come off and just crushed our home and, uh, my son and his wife were at home, but they were OK. Um, later our son told us that we were always telling them, don't build up a fire because you're going to burn that house down and he said when he heard all the everything cracking, all the lumber and everything breaking, he thought the house was on fire, and he said my first thought was, oh my, they're gonna kill me. But anyway, they were OK, but that's how we found out that, um, just people trying to call us in. And of course, we just left the conference and returned home and, um, Had to walk into the place because the road was no longer accessible. So you, I mean, you see, this is the image of the hill that came in through the back of their house and, and later we'll show some images and you see the house actually moved. Here's more images of, of the, the, the slide coming into the house, um, more images. You know, one of the, the questions was dealing with the debris and I could not find the amount of debris and that was placed there, but I can tell you by observation and we'll look at it. It is both a combination of debris in the hills, so the weight of the debris set on the hill. With the way that the drainage is, which we'll get to that, has caused more than just the debris to run down and you could tell by looking at the, the area that the field that has been covered by the, by the, the slide, which will get into. So this is just a, a picture of the street. Um, one of the things damages they're going to ask for is he had a, a lumber mill out there was cut off. Well, this, the, the road cutting off, they were driving a, a four wheeler for a while back and forth to get access to the property down there. And of course, that it kills your, uh, your customer. Some lumber business if you, uh, or custom mill business if you don't have any way to get there. OK, so it's just more of the Of the debris coming down on the hill. And by debris, we're talking about the dirt that was removed. We're also talking about asphalt, concrete, all the stuff that was, that was in the, uh, the, you know, that was removed from the highway department was placed in there. All right, so, so then the question is, you know, how did it happen? And this image you can see this is the, the hill in 2002 before there was ever any Phil. You can actually see down here structures right below this. So this is where the fill area is we get a little closer. This right here is where the area is going to be later on. So you can see the, the structured original house. This is before my clients built, built their house. So my clients built their house before they got, they got title to the property. They didn't buy the property, so there's no disclosure to it. They, they got the or maybe they did from the from the dad, but they got the property from his, from his parents who got the property from their parents who got the property from their parents. So it's been a generation for several generations. So this is, you know, an image from 2002. So it's just basically a hillside that's a. There with, you know, drainage and ravine. All right, so this is the first image that you see in 2006 where you can actually see the fill area. This is my client's house. So you can say that they didn't own the property, but they did. That was their, their house was there. When they put the, the debris there in 2005. My clients already had a house there in 2005. When that was approved by the, the highway department, my clients had a house there. This is just a close up image of it. We're going to talk about the drainage, which we'll have a little more so you can see drainage of rain on both sides of the, of the, the field. You know, we don't have the square, the, you know, amount of tonnage that's there. But this gives you an idea that it's about 145 ft long and that it's 153 ft wide. So it is a substantial area and, and you can tell if you look, you can see how the, the slope that it's, you know, fairly high on the back of this. So this is a school bus parked on the area, and this is from 2009. So just for because this conversation came up quite a bit, so it kind of answered the question. This is from the county's website, so this is the boundary between the Pelfridge property and the gentleman who, who contracted with the state to put the fill. This is after the field failed and so you can actually see if you look there, you can see the, the erosion and so forth, and you can see the damage to my client's property. Um, so we talked a little bit about the drainage. So on both sides of the, of the field, there's drainage that was placed that ran right down along underneath and on the. The Phil area, which, you know, I, I don't think, I think probably is inevitable the fields coming down anyway just from natural rainwater. But when you run the, the, the water run off the, you know, running down both sides. I'm not an engineer, but I would say, you know, looking at it and say how is that going to stay at those millions of tons of fill, how is that going to stay in one place when you keep it saturated like that. So just more pictures of the drainage that runs down and this just gives you, once again, this is 2014, um, just right before the failure, and you got the, Drainage comes on both sides, and this is my bad art to kind of give you an idea of how the drainage runs on both sides of the field, underneath the field. So, first, Google Earth image, all these are Google Earth image. First, Google Earth image that shows the failure is 2016. So we know it failed in 2015 because that's when the house got, got, uh, um, back wall got busted in, but it gives you images, you can see the failure here, you see the, the debris moving its way down. And, and honestly, debris in hillside, I mean, I think it's a combination of both, even at this time, but later on you can see that it's a lot more than just even the the debris. 2017, you can see more substantial damage here. Um, 2018, there's, you, you can see it kind of goes further and there's more damage. And then by this point, you can see that it's actually moved the roadway, um, and the images, and it's moved down into the pasture. You can also see this is their second home. So this is a little over 100 yards away. And remember that first picture, it's not a, it isn't hillside, it's a gentle slope of the pasture. You know, in their mind, engineers said, you're probably OK or said you're OK, and in their mind, the, the, the slide happened and it was done They didn't know the whole hill was going to continue moving down across the pasture. And so then they lost their, their second home after that. Obviously, 2020, you can see, you know, the whole thing's kind of messed up. And then the last picture that you have on Google Earth is, uh, is 2021, and this is Cross Creek. You can see where the debris has moved or the slide has moved all the way down across this creek. Here is the relative picture of the impacted area about 13.5 acres, um, give or take. If you're, if you actually go and we'll, we'll show you, I'll show you some videos of the of the, the more recent, but you can see that it's actually, actually spread all the way down to the creek. This area right here is where the second home is. And of course, by this point, the second home is also It's also been demolished and, you know, the, the debris is covered up by vegetation. So, I'm gonna show you this video from just a couple of months ago, um, and let me see. I wanna do it this way, hopefully this works. Oh. Oh, So it's shown on my computer, but it's not showing. On the presentation, is there somebody in technical that can, can help. Alright, I'm gonna try one other thing to see if it works the other way. I think they're gonna try to uh. See if some IT person is available, but do you have some other slides to, to show where you just have one or a slide, but honestly, I really feel like it's important that we get a good look at it. So if it is possible to do it, but I think, I think I'm, I have two. Two ways of present it, so I'm gonna see if this other way. Well We have some IT folks on their way. Yeah, no, it's not letting. So, um, I'll go ahead and go to the last slide and then we'll, we'll come back to it if that's. That is uh. OK, if we get. OK, so last slide shows the, how the damages are broke down. Um, what we did is we tried to use just, just, you know, the basic information that a person can see to try to make it where it's easily justifiable. So if you look, you know, that their house is 3,264 square foot, according to the county's records. You have a market analysis of a broker price opinion in your packet that shows the median price per square foot for a home with a relatively, you know, acreage is $252 per square foot. So that's the, using the best information, the best comps we have the House should have been worth $822,528. Um, Then if you look at the, the second home. You have an evaluation done by a contractor what it costs to build a 13 and 88 square foot cedar house. Um, it's between 220,000, 240,000 is what the contractor said. So $230,000 that would be the price of the, of the second home that they lost. Um, he had, he had that lumber mill, so 3 years of lost income, 120,000. Their attorneys' fees. This is the attorneys' fees for their, the previous lawsuit that they filed and getting them through the, the claims commission where $48,741.38. So the total loss, and let me say, this is a little bit misnomer because they're still left with unreclaimed property, right? So the still, the states, the, the, the Department of Transportation's debris is still on their, on their property. The, the slide created by their fill is still on their property. So that I don't know how to quantitate that. So that we're not even asking for that. So, you know, I, I don't know about total loss, but that may, that's not calculated in here. So total loss 1.2 million $21,269.38. The contractor settlement was $225,000. That's why they got it as a contract. And like I said, they would love to get made whole from the contractor, but the contractor had great arguments that they weren't liable, that they were just relying upon the Department of Transportation or, or highway department. And so they're unreimbursed damage is 996,266 $9.38. Um, I would love if we do have, uh, somebody in tech who can, who can figure out why that's not video is not playing, it would be awesome, but Let me see But I did, but at the appropriate time, whenever. Yeah, this is weird. All right, let's see if I can help you out here. Hey. Here But it's not popping up, so we close the PowerPoint I think. Yeah. All right, I'll close all of the PowerPoint. Sorry guys, we're gonna have to OK. All right, there we go. So I don't know if that's gonna work for the other ones, but we'll, we will, if, if it doesn't, then we'll have to make do with what we got. All right, so this is a, a picture, um, of Highway 295, uh, well, let me start from the beginning and then all right, so this is Highway 295 above my client's client's property. So this is, like I said, just a couple of months ago. So right here, 295. And then when you get down here, this is, you can see part of the drainage. Right here, other drainage is off the picture, you can't see from the thing, but here is the failure of the debris. So this is the debris field when it was first Um, or the, the where it starts, like that's where it was, was placed before. And so it is hard to see, but you can see some dead trees in there, you can get an idea of what the, where the slide was and then the slide will pop back up just shortly after the vegetation. So you can see where the, where the slide, and I, and, you know, the only reason why I can imagine that still has no vegetation is because it's, it's actively moving still. And this is down here, you can see my client's first house that they lost. And so, if you remember that picture looking out from there, you, you remember what it looked like before as far as just a, you know, nice pasture, you know, uh, you know, a home. And that's the way it sits today. So if you, if you see, you can see in the how this property is still, is still rough. This is the place for the second home right there. And then this is all the way down this across its creek and you see the debris is still Moving. When I first met them, you can actually drive down to the creek, which you can't now because the, the debris is filled up. The, you know, trail that went down there. All right, so this is coming up. This is Cross's Creek, so you can see the debris is down to Cross Creek. You'd see the debris field. So this is the same kind of image coming up The 2nd home side is located right there on the other side of those trees. This trailer was a trailer that their son was going to redo, so it was had minimal value, it's going to be fixed up, but of course, it's, it's now, you know, been washed away. You can see This is a good image of what the property looks like. So this was just a, you know, pasture field that, you know, you can cut hay, you can bush hog, all that, then the house, and then where the slide. That. All right, because I anticipate questions, I'll go ahead and pull this back up. All right, you ready for some questions? Yes, we are ready for questioning, I believe a few, um. Uh, Representative Gazaway, are you? Still in the queue here for question. Thank you, Mr. Chairman. Let me just say as uh someone who. Debated Senator Ballinger on the issue of tort reform. It's refreshing to see him here representing plaintiffs today and uh what would be a tort case. I expected that does a great job. He's a great plaintiff's attorney. Um. With that being said, uh, let me just say that, uh, I do have sympathy for your clients in this situation. Uh, and when we talk about the, uh, state of Arkansas's responsibility. I, I'm gonna ask you a series of questions here. Did the Department of Transportation, uh, authorized the placement of this material. Yes. Did the Department of Transportation. Uh, no, the amount and type of the material that was being placed in this specific area. I, I'd say generally yes, some they do those is debris from a, from roadwork. So the answer would be yes. OK. And they authorized, um, I'm guessing some type of site design or engineering plan for this, is that correct? OK. And Once they've authorized a site design and had an engineering plan for the placement of this material. Uh Is there any further permitting or, uh, anything required by, by the Department of Transportation at that point, similar to, I think if the state put in a landfill, for example. You know, there's kind of some, there's continuing monitoring, permitting types of requirements. I, is that similar thing apply in a situation like this? So before they put the field there, the, the ADUQ will, will take a look at it. It's supposed to apparently through the process. Um, and then once the field is there, they will go back out and inspect it, but after that, there's no other ongoing permit process that I know about. OK, any monitoring after the fact? No, but they were responsible for the site design and the initial engineering is what you're telling me. That's correct. Yeah. And if you look, there's a, there's a document that's, um, labeled the restraining condition clearance requests a great label for a document. But in that, that was the request from Ellen and Construction when they, they located the site, which he said in his deposition that they gave him a name for the property owner. He goes out, enters in a contract with them, then he goes out and he, he inspects the sites, puts up some, um, Uh, you know, markers as to where, where the site would be located. Then the engineer goes out, takes a look at it, and then if you look, you can see in this environmental division use only down here, you can see where it shows the date that it was inspected and the date that it was approved underneath that, what those states? I'm sorry, what are those dates? Um, the date that it was inspected. Was July 6th of 2005, and it was approved, um, July 6, 2005. So, and then if you look at the, at the diagram it is of the proposed waste area that we're talking about. OK. All right, I'll, I'll probably have some more questions, but I'll stop for now. Senator Rice. Thank you. So I'm clear now that y'all didn't buy any property this was in your family. A long time the person that owned the property that. Approved the dump. is known to you. He was known, he has passed since then is there, was there any liability ever claimed on the person that owned the property where the field. Person you said it's deceived. still I'm sorry, I do not remember when Albert passed, but. What was just, just on whoever owned the property was there any liability? Ever claimed against them. OK. All right, have you received any compensation other than the 225 Representative Jean. Thank you, Mr. Chairman. Mr. Ballinger, can you tell me Or or anybody on the, the engineer that they got the approval for the 2nd site. Did they pay him? Or her Uh, I'm sorry, but they represent Jean, who do you mean? The freeze? I'm assuming that they, they said they had an engineer look at the 2nd site. So, it was the engineer who's come out during the, during the lawsuit to inspect the, the property. And so he was paid as part of the costs associated with that lawsuit, but he wasn't paid to do the work of, of approving the second site. No, OK, but he thought it would be safe. OK. Was there any legal remedy towards him or that firm, so they They were never considered. And the second thing is, do we know how much the deceased landowner, how much compensation he got through the years, uh, to dump this, uh, feel on his property. Now, I, I would say the Department of Transportation should, should have that information. I don't have that information, but it is my understanding it's a one-time fee, not, not something that ongoing year to year I don't think so. I think it's a one-time fee, but I'm not, not 100% sure of that. Thank you. Senator McKee. Mr. Chairman. I got a couple of questions. I'll try to make them as quick as I can. Uh, Along with Representative Jean's question, do we know how much money the state of Arkansas saved by dumping in that location as opposed to a different location? We don't know, but we'd sure like to know. Is that something that the department could find out for us? I don't know, one of the things that may be a limitation in that is because the original was designed required him to dump it off site someplace more level, but it was never contracted. So it may be hard to demonstrate exactly where that other site would have been, um, but clearly by, by only trucking it, you know, quarter mile or however far instead of miles down to, to level ground, it, it probably saved them significantly amount of money, um, how, how large is the, is the tract of property that you own? Uh, they own 10 acres or the family owns substantially more than that in that area that tract is 10 acres. That is 10 acres you have future plans to build another house on that same piece of property? Is it usable in any other location that's not affected by the slider. No, the property is destroyed. OK. So I, I'd like to make a motion, throw out a number to. To give you some money, um, but in doing that, just knowing that, uh, obviously you won't be building on that property again. I think that that's important, but I'll make a motion at the proper time you tell me when that is, Mr. Chairman. All right, uh, we'll, we'll come back around to a motion here. I've got a couple more in the queue and then we'll come back around to you first for that. Um, Representative Beck. Uh the land has been in the family for years. Prior to this event, were there any other events on the land as far as mudslides? Right, that's all I need. Representative Gassway. Thank you, Mr. Chairman. So, I guess a couple of questions here as some other people have alluded to, there's probably some blame to go around here. Uh, I don't know that we can lay it all at the state of Arkansas's feet, some of it may very well be. Given the engineering, the design, the, uh, authorization to put it there, the knowledge that they had. Uh, if you had to apportion the fault here. How would you apportion the fault? Are you, are you here before us today to say that 100% of the fault belongs to the state of Arkansas, or do you think that, how would you apportion it? So, you know, I would say that what would probably be a pretty good example is what was actually paid out. So, you know, something roughly around 20% maybe the contractor's fault, and 80% be the state of Arkansas's fault. So, um, the truth is that the state, the contractor, he's not, he doesn't have engineers. It's the highway department that had engineers. You know, he doesn't, doesn't inspect, he doesn't, you know, get ADQ to look at it. That's all the higher department. So I was. Say, you know, there may be 20%, he maybe he should have known, but he also, or his insurance paid out 225,000. All right, fair enough. So let me follow up with this. So the statute of limitations argument because the Claims commission found that. Barred by the statute of limitations, therefore, we're awarding 0. And You know, uh, the statute of limitations can be harsh. It can, it can lead to some harsh outcomes taking a criminal case, for example. Just because you ultimately determine maybe who committed a crime. If the statute of limitations is ran. There's no going back and prosecuting them. It's just sometimes you, you just don't get the bad guy. And Why should we take a different approach in this case? Yeah, thank you for that question. I, I think that what you're talking about is in, in a criminal court of law, there's no doubt that you're, you're right. The statute of limitations exist for a reason. Where, where we're at is we are in the claims committee, where it's their job to say, hey, you know, who does justice from a moral standpoint require us to do something. Having said that, setting that aside, let's go back to a court. If we're in a court of law, you know, there was the, the Department of Transportation filed motion saying the claim. wasn't ripe. At the same time, they're filing motions saying statute of limitations, in the same case, right? So their claim is not ripe until they know whether or not they, they could be made whole. And it, it's true, maybe they could have filed and asked for them to have concurrent cases, but it, it still, they could have very well said no, this claim is not right, and, and had it dismissed. Having said all that, setting that aside, we recognize the, the statute limit or the statute of limitation of being told is not really a great, great example. The state's limitations doesn't run. On a continued trespass. And so, um, you know, I'm happy to, to go over the cases. I hate doing that kind of thing, um, in here, but there are several Supreme Court cases that says when you have a continued trespass, statute of limitations does not run on it. So, you know, I, I feel like in this case, this is a great example of it. And, and I just, you know, I hate the fact that that's the whole point of the Claims commission is that people would have an opportunity to finally be heard. and yet, in this case, because of the procedural motions, one after another after. Another, they never had the opportunity to actually be heard. So two follow-ups and then I'm done, Mr. Chair. So what do you make of the argument you heard the, you heard the, uh, highway department say that they oftentimes, oftentimes approve claimants to hold their claim in abeyance while they process their claim through circuit court. So what, how do, what do you make of that argument? I'll say that I don't think that was the highway department that made, made that argument. I think it was the Claims commission who pointed that out. I think the highway department would have done exactly like they did in this case, and they would have filed a motion to dismiss based on the fact that the claim wasn't ripe, which they did in this case, in the same motion where they filed statute of limitations. So, now, maybe the Claims commission, maybe they could have made the argument where they, they did it. Um, in, in this case, they, they proceeded that way because they had a conversation with someone from the highway. Department years ago who said, yeah, we messed up before you ever file a claim, you have to proceed with the, with litigation and so they proceeded with litigation first. But what, what happened is they would have went in and they would have had a motion dismissed, they would have dealt with saying the claim wasn't right until they saw whether they could be made whole. So with respect to your continued trespass argument, you claim that the statute of limitations is not run because it was, it's a continuous trespass. You cite some case law there I seem to hear the opposite thing from. Ardot they seem to think that the statute of limitations would not be tolled. Claims Commission found that statute of limitations had ran with respect to those claims. Seems like there's at least some disagreement there legally as to whether or not that actually is told, but if you're so confident in that position, why don't you just return to circuit court. Uh, well, so in Cir court, we, we have sovereign immunity, so there's no, there is no claim that we can make in, in circuit court against the state. But, but what I would say is that when the, the highway department talked about that, you know, Department of Transportation talked about that. He said they didn't even deal with the trespass argument at all in the, the Claims Commission. So that was, they, they ruled, on the statute of limitation based on tort, not based on the, the claim or the, the trespass. So that was not even addressed. Thank you. Right, Miss Irby, just a few, a few points here. So, I want the subcommittee to know first that this has been heard by the commission 3 times. The commission has had 3 hearings on this matter. The first one was on May of 2021, when the claim was first filed and the department filed a motion to dismiss and the commission held a hearing on it and said, OK, your claim is insufficient. You've got to go back and try again. And so then the claimant filed a First Amendment complaint and the commission. Held another hearing in April of 2023. And again, the commission said this is not sufficient. You need to go, we're going to give you one more chance to try and get this right. And so then they filed a 2nd amended complaint. And then we had another hearing in February of 2024. Now, all these pictures don't have anything to do with the statute of limitations and the statute of limitations is what the commission considered here. And the continuing trespass argument that's been argued here was never brought up. And I know that Senator Ballinger. wasn't council for the claimant at that time. Um, But there have been numerous, numerous, numerous opportunities for arguments to be raised. And the statute of limitations, it's, it's not correct to say that it's optional or that, or that it's, that the commission is not bound to it. There is a commission statute saying that if you couldn't get, if you couldn't. If a circuit court couldn't make an award in your favor, the commission is not allowed to. The legislature has said, Commission, you are not allowed to award any money that someone couldn't get in circuit court. And I have concerns that if a statute of limitation is deemed to be optional in one case, that in every case in which the commission dismisses something for statute of limitation reasons. And that happens not infrequently. This case will be cited. And they will come back here and appeal it saying, well, it was, it was optional and in this case, so the statute of limitations shouldn't apply and then all of a sudden, we have statute of limitations. We have Arkansas statutes that no longer have any force of law at the commission, even though the legislature has told us that we have to apply those. So, If, if the, if the subcommittee is concerned about the applicability of the continuing trespass argument. And the subcommittee sees fit to remand this to the commission for additional briefing on that issue so that the commission can bring back to the subcommittee, a fully reasoned decision on whether or not the continuing trespass trespass doctrine applies, we could certainly do that. But Neither party has had an opportunity to do any discovery. This is simply at the procedural state, so all these pictures that you've seen, the Department of Transportation probably hasn't even seen at this point. The commission certainly has not seen the numbers that have been thrown out. The commission has not seen. This was at the very, very start of something. You have to get over a statute of limitations hurdle before you can even get to the substance of a claim. And in this case, the commission decided that based on the argument made by, made by the parties that the that the claimant had not. Not able to hurdle that to clear that hurdle of the statute of limitations. If the subcommittee wants the commission to take another look at it and for the parties to do some additional briefing, we're happy to do that. Thank you, Ms. Erby. And if, if I'm understanding you correctly, you said the issue of continuing trespass was not considered at all by the commission. It was not argued by claimant's former counsel at any point in any of the three hearings that we have held on this matter already. still sliding today? That's, I don't have any information before that certainly was not part of the commission's order. We have not gotten to the substance of that situation. I would imagine if this is remanded for further briefing on the continuing trespass issue, that that would be a part of that briefing damages still as of the second house being taken out. Happening as well as even yet today, it seems like the road's still being. Covered if you can't get down to the creek where you could a few months ago, then it's, they're still movement of land across the, OK. Um, Representative Gasaway looks like. Thank you Mr. Chairman. Well, you and you asked most of the questions that I had, so. Ms. Irby, just to clear, to be clear, to confirm. Continuing trespass has never been raised during the course of this. These suits? No, the commission specifically considered Based on what was raised by the parties and found that there was no fraud alleged that would to the statute of limitations. There was no concealment of harm alleged that it told the statute of limitations, and there was an argument raised about the continuing tort doctrine, which has been specifically rejected by the Arkansas Supreme Court. So to the extent that the continuing trespass doctrine is something different that may need to be briefed. I'm unfamiliar with that doctrine. Well, Mr. Ballinger, I would say Senator Ballinger, but I don't know what's really appropriate right now. To think that it is uh. Is that right? Yeah, in fact, what is your position there? Yeah, I would say trespass was claimed, it just was never dealt with. And, and I, there were multiple hearings because there's multiple pro um procedural motions to dismiss. They never got a chance to, to hear their, their, their claim. And so I, I do understand the, the, the concern and people want to make sure that they, they follow the procedural law, but essentially Claims Commission and Claims Committee is set up. With the opportunity to try to work out and do justice, and I would agree, Claims commission is bound. The statute specifically says Claims Commission is bound by statute of limitations, other things. Claims committee is not. You are a legislative body with the, with the ability to look at and do justice ultimately. And the claims committee is not set out in the state, but that's not, to me, that doesn't matter because we get past it because of the claim not being ripe. They, they filed the, the motion with Claims committee within 2 months when the claim was ripe, when they reached the settlement and the, the concept of the continued trespass, which is well recognized with several cases in Arkansas. Right. All right, Ms. Irby, did you have? A comment. No, but I'm happy to take any questions. All right, Senator McKee, it looks like we're up to you and I think it was. Thank you, Mr. Chairman. Uh, first, I want to thank the Claims commission because I know that the work you do is difficult and in trying to interpret the law and follow the law and protect the citizens of the state of Arkansas because there are a lot of people that ask for things that they don't deserve. Um, in saying that, uh, I do feel like. There are times when we as a state, Um, forget that. As elected representatives, we represent the state, the people to the state, not the other way around. And so I'd like to make a motion with some stipulations, the number one stipulation being that, um, if, if this is adopted, um, and I'd like to move that we go ahead and pay them 343,000. That's the. When you look at what they've asked for, the $568,000 on what they've been paid by the contractor $225,000. That's the remainder of that number, uh, with the stipulation that the state is under no future liability for anything regarding this. Piece of property or the, the landslide that was caused. So that's my motion. OK. All right, I have a motion in a second. It looks like I have some discussion on the motion, uh, Representative Jean. On the draw, uh, I'd like to make a substitute motion to send this back to the claims. Right. Looks like we have a substitute motion. If I can get a second. Don't hear a second. On that? Hearing no second, I'm. All right, there. There is a 2nd on your substitute motion. Um, Yeah, we'll need discussion on that, on that motion, Representative Jean, are you, are you finished with your motion? OK. Representative Gazaway discussion on the motion. Thank you, Mr. Chairman. Look, uh, I just want to say to Senator McKee's point about. Uh, I'm not opposed per se to Senator McKee's motion because I am very sympathetic to. Your plight. I also hear Ms. Irby's argument about the presidential effect of what we're doing. And considering. Uh, you know, if we Ignore a statute of limitations and uh to Senator Ballinger's point, If the case law is what he says it is and I have no reason to doubt that. Then it sounds like he has a strong argument to make. Back at the Claims commission that the statute of limitations has been told. And they can make that decision. They can brief it, they can look at it more than with a better eye than what we have here today to look at that. Uh, question Make an informed decision on it because we don't want to set a bad precedent where in the future statute of limitations is meaningless going forward and we just approve everything, uh, through the, through this body as opposed and render the Claims commission meaningless essentially. We don't want to do that. Uh, but at the same time. I do think You know, this committee obviously is very sympathetic to the. Plaintiffs, if you will, in this case. I personally am, um, And so, I, you know, I, again, I kind of hate to do it, but I do think that would be the proper way to handle things. Right. Further discussion on the substitute motion, Senator, Senator Hester. Thank you, Mr. Chairman. Um, I, I certainly, Have, have empathy for, uh, the argument that it, that it should be sent back, but look, I, I think we're, we're the legislature. We, we don't make rulings and set precedents. We, we, people of Arkansas expect us to hear from the people of Arkansas, uh, and treat them fairly. Um, and that's, that's why we're here and we ruling today doesn't set up a ruling for us tomorrow. We all know that the ruling right now doesn't set up what we're gonna do in 5 minutes. And, uh, you know, I have significant empathy for people who have been dealing with something for 20 years that was a state action. They've been 3 years in the Claims Commission. Um, I just, I just think out of fairness, we, we give these people resolution today so they can go on about their lives. So I'll be voting no on the. On the second motion. Any other discussion on the substitute motion? Seeing none All in favor? And he opposed. The nays have it, so we'll move on to the main motion, uh, Any any further discussion on the main motion. Seeing none, uh, the main motion is to award 343,000. Uh, With certain stipulations. All in favor? Any opposed? Motion passes. Thank you. Thank you, committee. Members, that concludes our agenda for the day. So you know their business, we are adjourned.