Chew v. Am. Greetings Corp.

• Decision Date: 12 June 2014
• Docket Number: 13–1751.,Nos. 13–1966,s. 13–1966
• Citation: 754 F.3d 632
• Parties: Eugene CHEW, Jr., Plaintiff David Mark Duncan; Nancy Duncan, wife of David Mark Duncan, Plaintiffs–Appellants Daniel Chase Hoskins; Whitney Dale Hoskins, Plaintiffs v. AMERICAN GREETINGS CORPORATION, Defendant–Appellee. Eugene Chew, Jr., Plaintiff–Appellant David Mark Duncan; Nancy Duncan, wife of David Mark Duncan, Plaintiffs Daniel Chase Hoskins; Whitney Dale Hoskins, Plaintiffs–Appellants v. American Greetings Corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

754 F.3d 632

Eugene CHEW, Jr., Plaintiff

David Mark Duncan; Nancy Duncan, wife of David Mark Duncan, Plaintiffs–Appellants

Daniel Chase Hoskins; Whitney Dale Hoskins, Plaintiffs

v.AMERICAN GREETINGS CORPORATION, Defendant–Appellee.

Eugene Chew, Jr., Plaintiff–Appellant

David Mark Duncan; Nancy Duncan, wife of David Mark Duncan, Plaintiffs

Daniel Chase Hoskins; Whitney Dale Hoskins, Plaintiffs–Appellants

v.American Greetings Corporation, Defendant–Appellee.

Nos. 13–1966, 13–1751.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 13, 2014.

Filed: June 12, 2014.

Gary K. Smith, argued, Memphis, TN (Brian Gene Brooks, Greenbrier, AR, John Irving Houseal, III, Forrest City, AR, Geoffrey Gaia, Memphis, TN, on the brief), for appellant.

Emmett B. Chiles IV, argued (Steven W. Quattlebaum, Robert Ryan Younger, on the brief), Little Rock, AR, for appellee.

Before WOLLMAN and SHEPHERD, Circuit Judges, and WEBBER,¹ District Judge.

SHEPHERD, Circuit Judge.

David Duncan, Eugene Chew, and Daniel Hoskins (the plaintiffs), employees of Osceola Municipal Light & Power (OMLP), brought a negligence suit against American Greetings Corporation. The district court ² granted American Greetings's motion for summary judgment, and the plaintiffs appealed. We affirm.

I.

On September 23, 2009, an American Greetings employee noticed that a stinger ³ outside American Greetings's Osceola, Arkansas facility was loose and notified the facility's maintenance supervisor of the problem. American Greetings's maintenance supervisor notified Billy Griffin, OMLP's electrical manager. Griffin then called David Duncan and directed Duncan and his crew to meet him at the American Greetings facility. When Duncan and his crew arrived, they were met by Griffin and Lance Collins, who was American Greetings's maintenance manager and was also a trained electrician. Griffin and Collins were discussing why American Greetings's plant had not lost power because of the loose stinger.

Griffin instructed Duncan to retrieve a voltmeter from his truck so the crew could read the transformer's voltage. Griffin returned with a voltmeter that had a safety rating of only 1,000 volts. When Griffin approached the transformer, the transformer's exterior and interior doors were open.⁴ The transformer was designed with two doors, an outer, exterior door and an inner, flash-guard barrier door. The manufacturer nameplate, which indicated the transformer's voltage, was affixed to the inside of the exterior door. The nameplate indicated that the incoming, or primary, voltage was 13,800 volts and the outgoing, or secondary, voltage, was 4,160 volts. The inner door was painted red and warned “danger high voltage.” Because the transformer doors were open, the plaintiffs were unable to read the manufacturer's nameplate when they returned with the voltmeter. After returning, Duncan asked Griffin and Collins if they were going to turn off the flow of electricity to the transformer. Collins shook his head no, and Duncan proceeded to approach the secondary-side of the transformer with the inadequate voltmeter. By approaching the 4,160–volt transformer with a 1,000–volt voltmeter, Duncan created an arc flash that injured the plaintiffs. The plaintiffs knew that the transformer was energized and had been trained to measure voltage. Despite knowledge of the potential risks involved, Duncan incorrectly believed that the transformer he approached had a total voltage of 480 volts because other transformers in the area had the lower level voltage.

The plaintiffs filed this diversity suit against American Greetings in the United States District Court for the Eastern District of Arkansas. See28 U.S.C. § 1332. The plaintiffs alleged that American Greetings's negligence, in particular, American Greetings's failure to properly label its electrical system and warn the plaintiffs of the unique nature of its transformers, caused Duncan's incorrect assumptions about the secondary transformer's voltage. American Greetings responded that pursuant to the Arkansas Supreme Court's holding in Jackson v. Petit Jean Electric Co–op., 270 Ark. 506, 606 S.W.2d 66 (1980), it owed no duty to warn the plaintiffs, who were experienced electrical contractors, of the dangers of electricity and the risk of arc flash when improper equipment is used. The district court agreed with American Greetings that Petit Jean controlled and granted American Greetings's summary judgment motion. The plaintiffs appealed the district court's final judgment. See28 U.S.C. § 1291.

II.

A.

We review the district court's grant of summary judgment and its interpretation of state law de novo, considering the facts in the light most favorable to the nonmoving party. See Raines v. Safeco Ins. Co., 637 F.3d 872, 874–75 (8th Cir.2011). We will affirm the district court's grant of summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Because we are a federal court sitting in diversity, we apply the substantive law of the forum state. See E–Shops Corp. v. U.S. Bank Nat'l Ass'n, 678 F.3d 659, 663 (8th Cir.2012). Here, all parties agree that Arkansas law applies to this case. As such, “[w]e are bound by decisions of the Arkansas Supreme Court as to the meaning of Arkansas law.” See Curtis Lumber Co., Inc. v. La. Pac. Corp., 618 F.3d 762, 771 (8th Cir.2010). When the Arkansas Supreme Court has not addressed an issue, we must predict what rule the court would adopt and may look to the Arkansas Court of Appeals for guidance in this task. See id.; Doe v. Baxter Healthcare Corp., 380 F.3d 399, 407 (8th Cir.2004).

“Under Arkansas law, in order to prevail on a claim of negligence, the plaintiff must prove [1] that the defendant owed a duty to the plaintiff, [2] that the defendantbreached that duty, and [3] that the breach was the proximate cause of the plaintiff's injuries.” See Yanmar Co. v. Slater, 2012 Ark. 36, 386 S.W.3d 439, 449 (2012). “[T]he question of what duty, if any, is owed a plaintiff alleging negligence is always a question of law and never one for the jury.” Id.; D.B. Griffin Warehouse, Inc. v. Sanders ( Griffin I ), 336 Ark. 456, 986 S.W.2d 836, 839–41 (1999). If, as a matter of law, the defendant owed the plaintiff no duty, then “the negligence count is decided as a matter of law, and summary judgment ... is appropriate.” Griffin I, 986 S.W.2d at 840. Whether the defendant breached its duty to the plaintiff is a question of fact for the jury to resolve. See Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699, 702 (1991).

The characteristics of the parties and the circumstances of their encounter may trigger a unique duty that imposes a distinct standard of care that departs from the typical standard of ordinary care. See Kowalski v. Rose Drugs of Dardanelle, Inc., 2011 Ark. 44, 378 S.W.3d 109, 114–15 (2011); Clark v. Transcon. Ins. Co., 359 Ark. 340, 197 S.W.3d 449, 453–55 (2004). One instance of a unique standard of care, recognized by the Arkansas Supreme Court in Petit Jean, applies to an “employer of an independent contractor,” who “owes a common law duty to the contractor's employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions.” See 606 S.W.2d at 68. These duties, however, which are analogous to those a premises owner owes a business invitee, do “not contemplate a duty to warn of obvious hazards which are an integral part of the work the contractor was hired to perform.” Id.; Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627, 629 (1969). Finally, the Petit Jean court recognized that when the employer of the independent contractor exercises control over the contractor, the employer of the independent contractor must exercise that control with reasonable care. See Petit Jean Electric Co–op., 606 S.W.2d at 68–69; see also Williams v. Nucor–Yamato Steel Co., 318 Ark. 452, 886 S.W.2d 586, 587–88 (1994).

Arkansas courts have applied the principles articulated in Petit Jean to a variety of circumstances. In Petit Jean, the Arkansas Supreme Court reasoned that an electrical cooperative that hired a construction company to rebuild electrical lines had no duty “to isolate or de-energize its lines or to warn employees of [the] electrical contractor that the work as contracted for would be dangerous if not done properly.” Petit Jean Electric Co–op., 606 S.W.2d at 68. The Arkansas Supreme Court reaffirmed its Petit Jean holding in Stoltze, rejecting the plaintiff's attempt to distinguish Petit Jean by claiming that he was not qualified to work around energized electrical lines. See Stoltze v. Ark. Valley Elec. Co–op., 354 Ark. 601, 127 S.W.3d 466, 476–77 (2003). The court reasoned that the plaintiff's employer, an independent contractor hired by the defendant, retained the responsibility to inform the plaintiff of the dangers involved with the plaintiff's line of work. See id. Arkansas courts have applied the Petit Jean standard to risks other than those associated with electricity, including the risk that a roofer would fall through a skylight, see D.B. Griffin Warehouse, Inc. v. Sanders ( Griffin II ), 349 Ark. 94, 76 S.W.3d 254, 261–62 (2002); Crenshaw v. Ark. Warehouse, Inc., 2010 Ark. App. 612, 379 S.W.3d 515, 516–17 (2010), and the risk that a commercial painter would be hit by a car when painting an entrance to a residential subdivision, see Culhane v. Oxford Ridge, LLC, 2009 Ark. App. 734, 362 S.W.3d 325, 327, 329–30 (2009).

The plaintiffs contend that the standards articulated in Petit Jean do not apply to this appeal because (1) OMLP had no formal, written contract with American Greetings and (2) Federal and Arkansas regulations have imposed an alternative standard of care on American Greetings. We disagree.

First, Petit Jean applies to this case despite the absence of a written contract. The plaintiffs attempt to distinguish this case from Petit Jean and...