608 F2d 291 Lumpkin v. City of Little Rock

608 F.2d 291

Katherine LUMPKIN, Appellant,

No. 79-1235.

United States Court of Appeals,
Eighth Circuit.

Submitted Oct. 9, 1979.
Decided Oct. 17, 1979.

Phillip H. McMath, Little Rock, Ark., and Nat P. Ozmon, Chicago, Ill., on brief, for appellant.

R. Jack Magruder, III, City Atty., Robert T. Taylor, Lester A. McKinley, and Carolyn B. Witherspoon, Asst. City Attys., Little Rock, Ark., William Fleming, Arkansas Municipal League, on brief, for appellee.

Before LAY, HEANEY and HENLEY, Circuit Judges.


view counter

Katherine Lumpkin appeals from the District Court's dismissal of her tort complaint against the City of Little Rock, Arkansas. She contends that the District Court erred in holding that the municipality is immune from suit under Arkansas law. Her complaint in this diversity action states that she was severely burned in 19581 by the City's negligent placement of "smudge pots" containing hot oil near her home. The City moved to dismiss under Fed.R.Civ.P. 12(b)(6). The District Court2 issued a memorandum and order dismissing the complaint because, under Arkansas law3 on the date of the injury, tort actions against cities were barred by the doctrine of municipal immunity. We affirm the District Court's dismissal on the basis of its memorandum.


Lumpkin also challenges the constitutionality of the Arkansas sovereign immunity doctrine. We find no merit in the challenge.


The order of the District Court is affirmed.


Plaintiff, who was three years old at the time of her injury, filed her complaint the day before her twenty-first birthday


Honorable G. Thomas Eisele, Judge, United States District Court, Eastern District of Arkansas, Western Division


The parties agreed that Arkansas law was applicable to the action