Pinson v. 45 Dev., LLC

• Decision Date: 11 July 2014
• Docket Number: No. 13–3327.,13–3327.
• Citation: 758 F.3d 948
• Parties: Curtis PINSON, Individually and as Husband, Plaintiff–Appellant Cristi Pinson, Individually and as wife, Plaintiff v. 45 DEVELOPMENT, LLC, Defendant–Appellee, Brandrite Sign Company, Inc.; Citi Trends, Inc., doing business as Cititrends, Defendants Wausau Underwriters Insurance Company, Intervenor Plaintiff.
• Court: U.S. Court of Appeals — Eighth Circuit

758 F.3d 948

Curtis PINSON, Individually and as Husband, Plaintiff–AppellantCristi Pinson, Individually and as wife, Plaintiff

v. 45 DEVELOPMENT, LLC, Defendant–Appellee,Brandrite Sign Company, Inc.; Citi Trends, Inc., doing business as Cititrends, DefendantsWausau Underwriters Insurance Company, Intervenor Plaintiff.

No. 13–3327.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2014.

Filed: July 11, 2014.

Raymond Lee Niblock, Fayetteville, AR, for Plaintiff–Appellant.

Joel I. Farthing, Fayetteville, AR, for Defendant–Appellee.

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.

MURPHY, Circuit Judge.

Curtis Pinson, a sign electrician, was installing a sign in a storefront canopy when he fell through the canopy and was injured. He subsequently sued 45 Development, the owner of the shopping center, and others. The district court ¹ granted summary judgment to 45 Development, and Pinson appeals. We affirm.

45 Development owned and operated the Quarry Shopping Center in Fort Smith, Arkansas, and leased Suite 101B to Citi Trends, a clothing store chain. Curtis Pinson arrived at the shopping center on February 21, 2011 to install a lighted sign in front of the Citi Trends store. Citi Trends had initially hired Brandrite Sign Company to install signs at various locations but it later engaged two other companies due to the size of the job. One of these companies was Anchor Sign, Pinson's employer. Pinson, the crew leader, was a licensed master sign electrician and had had experience working with electrical signs for about ten years.

Pinson arrived at the job site with an Anchor Sign bucket truck and was accompanied by fellow employees Derrick Stewart and Sean Brown. Anchor Sign had conducted a site survey before Pinson and the others arrived. The location of the Citi Trends sign was in front of the store on the exterior of an entrance canopy above the sidewalk. The interior of the canopy did not have a floor; instead it had a base constructed of vinyl soffit material supported by a framework of metal joists. There was no access panel permitting entry into the canopy interior from below.

Pinson sought to gain access into the interior of the entrance canopy in order to install the sign. There is some dispute in the record as to how Pinson chose his method of proceeding. He asserted at the summary judgment stage that he had “informed his supervisor of the access problem, and was directed to go through the roof rather than the soffit in order to avoid damaging the owner's property.” There is however no other evidence of such a conversation in the record. Tim Wilson, Anchor Sign installation manager and Pinson's supervisor, testified in his deposition that he would not have directed an employee to access a sign in an unsafe manner. Wilson also explained that the crew leader—“your experienced guy”—determines the best way to access and install a sign after reaching the site. Wilson testified that if Pinson had decided to create an access panel through the underside of the soffit in order to reach the canopy from below, he would have agreed with that approach. He also testified that protective harnesses were available on all Anchor Sign trucks and that Pinson could have obtained a different kind of ladder or a scissor lift by calling the company.

Pinson ultimately accessed the canopy from the store's roof by lowering a folded “A frame” step ladder into the entrance canopy. He testified in his deposition that he knew that the canopy material would not support a person's weight and therefore decided to place the ladder on the metal joists that formed the framework of the entrance canopy. A fellow crew member then held the ladder while Pinson climbed down into the canopy and placed a “two by six” wooden board from his truck underneath the ladder. The ladder was not secured; rather it was balanced on the loose board placed on top of the metal joists. As Pinson started to ascend the ladder, he thought the ladder “shifted.” He instinctively stepped back, and then fell through the vinyl soffit to the sidewalk. He sustained injuries to his right foot in the fall, and states on appeal that these injuries later resulted in an unfortunate amputation of his leg from the knee down.

In July 2012 Pinson and his wife, Cristi Pinson, brought this action against 45 Development and others for various claims, including absolute liability and negligence. Pinson subsequently amended his complaint four times. In its November 2012 final scheduling order, the district court set a deadline of May 10, 2013 for leave to amend the pleadings. Pinson filed a fifth motion to amend his complaint on August 18, 2013 which was denied by the court on August 23. In the same order the court denied without prejudice eight motions by the plaintiffs for partial summary judgment and ordered their motions be consolidated into a single partial summary judgment motion. The Pinsons filed an amended motion for partial summary judgment on August 28. The district court then issued a memorandum order and opinion on September 23, granting 45 Development's previously filed summary judgment motion. Pinson now appeals, arguing that the district court erred by denying his fifth motion to amend his complaint, failing to hold that evidence of safety violations created an applicable standard of care, and granting summary judgment to 45 Development on the issue of negligence.

We conclude that the district court did not abuse its discretion in denying Pinson's fifth motion to amend his complaint. We review for abuse of discretion a district court's denial of leave to amend. Ray v. Am. Airlines, Inc., 609 F.3d 917, 926–27 (8th Cir.2010). After the time has passed for amending pleadings as of right, parties may amend with the opposing party's written consent or the court's leave; the court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). District courts have authority to set deadlines for amendments and may determine “within broad limits” when exceptions are appropriate. Knoth v. Smith & Nephew Richards, 195 F.3d 355, 358 (8th Cir.1999).

In its November 2012 final scheduling order, the district court set a deadline of May 10, 2013 for leave to amend pleadings. Pinson then filed a fifth motion to amend on August 18 over three months after the deadline, asserting that he sought leave to “focus his complaint, revise it to reflect newly discovered facts, ... narrow down and eliminate certain issues” and add a new allegation relying on Arkansas law. On appeal Pinson argues that his revision dropped several counts “and reframed [the complaint] to specify that OSHA and other consensus standards are evidence of negligence and nothing more.” Pinson had already amended his complaint four times: twice as of right and twice with the district court's leave. The court denied the fifth motion on August 23, commenting that it was filed late without an explanation for its untimeliness and that its stated reasons were insufficient after discovery had closed and the deadline for amendments had passed. We conclude that the district court did not abuse its discretion in denying leave to amend when Pinson filed his motion over three months past the deadline. See Knoth, 195 F.3d at 358.

We review de novo a district court's grant of summary judgment. Argenyi v. Creighton Univ., 703 F.3d 441, 446 (8th Cir.2013). We view the facts in the light most favorable to the nonmoving party, Curtis Pinson, and give him the “benefit of all reasonable inferences in the record.” Id. Summary judgment is appropriate if there is “no genuine dispute as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In this diversity case we apply Arkansas state law, and decisions of the Arkansas Supreme Court are controlling. Curtis Lumber Co., Inc. v. La. Pac. Corp., 618 F.3d 762, 771 (8th Cir.2010). When the Arkansas Supreme Court has not ruled on an issue, we seek to predict how it would rule and may refer to intermediate state court precedent or other relevant sources as persuasive authority. Id. at 771–72.

To prove negligence Pinson must show that 45 Development owed him a duty, that it breached the duty, and that its breach was the proximate cause of his injuries. Yanmar Co., Ltd. v. Slater, 386 S.W.3d 439, 449 (Ark.2012). Whether a particular duty is owed is always a question of law for the court. D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254, 262 (2002). Although 45 Development argues that the court should strike portions of Pinson's brief containing facts outside the record, that is not necessary since we will not consider any new evidence on appeal. See Davis v. Francis Howell Sch. Dist., 104 F.3d 204, 206 n. 3 (8th Cir.1997).

Pinson asserts here that he was a business invitee of 45 Development. A business invitee visits “for a purpose connected with the business dealings of the owner.” Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546, 549 (1994). In Arkansas, a landowner generally does not owe a duty to a business invitee if a danger is known or obvious. Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344, 345 (1974). There is an exception to this obvious danger rule, however, and Pinson raises it. The Arkansas Supreme Court has described the obvious danger exception to apply “when the invitee is forced, as a practical matter, to encounter that danger in order to perform his or her job.” Jenkins v. Int'l Paper Co., 318 Ark. 663, 887 S.W.2d 300, 304 (1994). In Jenkins, the court referred to the Restatement's broader formulation of the obvious danger rule exception: that it applies when a landowner “as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition.” Id. (quoting Prosser and Keeton, The Law of Torts, § 61, p. 427 (1984) (formatting in quotation omitted)).

The exception to the ...