Clark v. Transcontinental Ins. Co.
| Decision Date | 04 November 2004 |
| Docket Number | No. 04-63.,04-63. |
| Citation | 197 S.W.3d 449,359 Ark. 340 |
| Parties | James Bradley CLARK, Appellant, v. TRANSCONTINENTAL INSURANCE COMPANY, Entergy Arkansas, Inc., Clements + Poellot/Associates, PLLC, and Silverwood Products, Appellees. |
| Court | Arkansas Supreme Court |
Appellant James Clark, an employee of CBM Construction, suffered serious injuries on January 12, 2000, during the construction of a building addition for Silverwood Products, Inc. (Silverwood), in Little Rock. Clark filed a negligence suit against appellees Entergy Arkansas, Inc., and Clements + Poellot/Associates, PLLC (Clements). The Pulaski County Circuit Court, Second Division, granted summary judgment in favor of the appellees. Clark appeals, arguing that the circuit court erred in granting summary judgment in favor of Entergy because material issues of fact exist as to whether Entergy received notice that construction work would be performed within ten feet of its open supply line, whether Entergy breached a duty owed to Clark, and whether there was sufficient evidence submitted by Clark from which a reasonable fact finder could determine that Entergy's conduct proximately caused damages to Clark. He also argues that the circuit court erred in granting summary judgment in favor of Clements because a material issue of fact exists as to whether Clements breached its duty of care to provide reasonably safe plans for construction. Because we agree with Clark's contentions that material issues of fact exist in this case, we reverse and remand this case to the circuit court.
While working on the east elevation of the building, Clark was holding a twenty-foot length of structural steel approximately nineteen feet off the ground when he was shocked by an 8,000 volt power line that was later determined to be eight feet from him. Clark was moving steel into position when it either touched or came very close to an energized electrical power line.
In its contract with CBM, Silverwood provided an allowance of $13,187 for CBM to obtain "architectural-engineering drawings." CBM entered into an oral contract with Clements to obtain necessary construction plans. Clements prepared and sealed the construction plans that were furnished to the City of Little Rock (the City) and CBM. Clark contends that while the plan for the east elevation of the building addition showed a portion of the overhead power line, the distance was not scaled out, and there were no notations on the plan to advise CBM of the distance between the proposed east elevation and the power line. He also states that the plan did not advise CBM that any steps needed to be taken to insulate, isolate, or de-energize the line prior to construction.
The City sent a "route slip" to Entergy some time in May 1999, notifying Entergy of the proposed construction. The route slip was sent to Entergy before the building permit was issued for the project so Entergy could determine whether the proposed construction would have any impact on its electrical lines. Rex Lyons, an employee of the City's Building Inspector's Office, stated in an affidavit that at the time the route slip was forwarded to Entergy, the City had in its possession the plans or drawings for the proposed construction that were available for review. Lyons further stated that the City does not send copies of the plans to the utilities with the route slip, nor does it send the utilities any other information regarding the project.
Clark brought a negligence action against Entergy and Clements. His claim against Entergy alleged that it negligently failed to insulate, isolate, or de-energize the overhead power line. His claim against Clements, as pertinent to this appeal, alleged that Clements negligently located the addition within seven feet of the power line, failed to notify Entergy of the project, and failed to specify that the power line be insulated, isolated, or de-energized before erection of the structural steel.
During discovery, Entergy, through Gary Bettis, its manager of area design, stated that the proximity of the power line to the building addition presented a safety hazard to workmen. He further stated that if Entergy had been notified that plans were available for review prior to construction, it would have taken steps to eliminate the safety hazard by de-energizing or isolating the line.
Chris Dimon, an architect for Clements, stated that he drew the plans for the Silverwood building addition. Dimon stated that he did not consider the location of the overhead power line to be a safety hazard. He further stated that he never contacted Entergy regarding the proposed construction project and that he did not know whether Entergy needed to be notified of the proposed construction given the location of the line.
Vince Poellot, a partner in the Clements firm, stated that at the time the firm sealed the plan, he knew the proximity of the open supply line to the eastward expansion. He also stated that he knew that a portion of the eastward expansion would be approximately nineteen feet high, but that he did not know the height of the overhead line off the ground. Poellot further stated that he submitted the plans to the City to obtain assistance in the review process, and that he never personally advised Silverwood not to include the eastward expansion of this warehouse due to the proximity of the open supply line.
Edward Prochaska, a registered professional engineer, stated that when a public utility is notified of a construction project and that plans or drawings are available for review, the utility is obligated to review the plans or drawings because a simple designation such as the designation identified in the route slip for the project in this case does not provide sufficient information to the utility for it to determine whether the proposed construction presents safety or access issues that the utility needs to address. He stated that a review by Entergy of the plans showing the Silverwood addition would have revealed the safety hazard presented by the proximity of the overhead open electrical supply line. Finally, Prochaska stated that based on a review of the facts in this case, it was his opinion that Entergy failed to exercise ordinary or reasonable care and was negligent under the circumstances when it failed to review the plans or drawings related to the project after receiving notification from the City's Building Inspector's Office.
Gary McKibben, a licensed professional architect, stated that based on the facts in this case, Clements failed to apply its knowledge and use the skill and care ordinarily used by a reasonably well-qualified architect because Clements: (1) designed the east elevation of the building addition to be located within seven feet of an open or uninsulated electrical supply line without specifying the need to comply with §§ 11-5-301 et seq. of the Arkansas Code and without specifying that any steps be taken during construction to eliminate the extreme, unreasonable safety hazard created by its design; (2) failed to identify on the plans or drawings, or specify in construction notes, a construction limit defining the construction zone to eliminate the electrical hazard presented by the open supply line located within seven feet of the east elevation; (3) located the east elevation of the building addition within an implied utility easement for the overhead electrical supply line without obtaining approval or consent of Entergy; (4) failed to request that Entergy survey the site to determine the suitability of the proposed construction from a safety standpoint and failed to determine what steps needed to be taken to eliminate the electrical hazard created by the proposed design; and (5) failed to note on the plans or drawings or in construction notes that the overhead line was seven feet from part of the east elevation of the building addition, necessitating contact with Entergy prior to construction of the addition.
Brian Clark, foreman for the Silverwood addition project, stated that before he and his crew began working on the east elevation, he noticed the overhead electrical line that ran along the east side of the property. He stated that because he was aware of the Arkansas law that required Entergy to be contacted if construction work would be done within ten feet of an electrical power line, he asked Ron Boyeski, Vice President of CBM, on three different occasions prior to January 12, whether anything needed to be done with the overhead electrical line. Brian Clark stated that three times Boyeski told him: "We had it checked out and it's safe to go" and "Do the job." Brian Clark stated that since Boyeski told him to proceed and since the construction documents did not instruct otherwise or state the distance between the east elevation and the overhead electrical line, he did not contact Entergy before beginning the work on the east elevation.
Summary judgment is to be granted by the circuit court only when it is clear that there are no genuine issues of material fact to be litigated. U.S. Fid. & Guar. Co. v. Cont'l Cas. Co., 353 Ark. 834, 120 S.W.3d 556 (2003). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in the light most...
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