Court ruling favors kin of 20 killed in flood

The Arkansas Supreme Court agreed Thursday that malicious conduct includes “reckless disregard of the consequences,” siding with family members who are suing the federal government in the 2010 Albert Pike campground floods that killed 20 people.

The order answers a question about the meaning of “malicious” in the Arkansas Recreational Use Statute that was posed by the U.S. District Court for the Western District of Arkansas.

The question arose in one of 11 federal lawsuits filed against the U.S. government over the flooding. The government asserted that subject-matter jurisdiction was lacking under the Federal Tort Claims Act because the Arkansas Recreational Use Statute, or ARUS, provides the government with immunity.

The lawsuits argue that the U.S. Forest Service knew that a flood risk existed in the Albert Pike campgrounds along the Little Missouri River but had neglected to warn campers about it or take measures to reduce the risk.

U.S. District Judge Susan Hickey had issued an order staying the case, Roeder v. United States, on Sept. 30 until the Arkansas Supreme Court could decide the question she posed.

The Thursday order said: “Roeder contended that malicious conduct includes conduct committed in reckless disregard of the consequences, from which malice may be inferred.

“The United States contended that malicious conduct is limited to situations involving actual malice or a desire to harm another.”

“Concluding that there was no controlling precedent interpreting the meaning of ‘malicious,’ as it is used in the ARUS, the federal district court certified to this court the question of whether “malicious” conduct, under Arkansas Code Annotated Section 18-11-307(1) includes conduct in reckless disregard of the consequences from which malice may be inferred.”

Arkansas, Pages 13 on 04/11/2014

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