Duran v. Sw. Ark. Elec. Coop. Corp.

• Decision Date: 08 February 2018
• Docket Number: No. CV–16–458,CV–16–458
• Citation: 537 S.W.3d 722
• Parties: Robert DURAN, Appellant v. SOUTHWEST ARKANSAS ELECTRIC COOPERATIVE CORPORATION; Charles Glover, Jr., d/b/a Glover Trenching & Backhoe, Appellees
• Court: Arkansas Supreme Court

537 S.W.3d 722

Robert DURAN, Appellant

v.SOUTHWEST ARKANSAS ELECTRIC COOPERATIVE CORPORATION; Charles Glover, Jr., d/b/a Glover Trenching & Backhoe, Appellees

No. CV–16–458

Supreme Court of Arkansas.

Opinion Delivered: February 8, 2018

Rehearing Denied April 12, 2018

Dugger Law Firm, by: Terry Dugger, Little Rock, for appellant.

Friday, Eldredge & Clark, LLP, Little Rock, by: James C. Baker, Jr., and Kimberly D. Young, for appellee Southwest Arkansas Electric Cooperative Corporation.

Smith, Williams & Meek, LLP, by: Karen Hughes, for appellee Charles Glover and Glover Trenching and Backhoe.

JOHN DAN KEMP, Chief Justice

Appellant Robert Duran appeals an order of the Miller County Circuit Court granting summary judgment in favor of appellee Southwest Arkansas Electric Cooperative Corporation (Southwest). For reversal, Duran contends that the circuit court erred in granting summary judgment because Southwest owed him a duty of care and questions of material fact remain regarding whether that duty was breached. We affirm.¹

I. Facts

Duran was an employee of Charles Glover, Jr., d/b/a Charles Glover Trenching & Backhoe (Glover), an independent contractor that was hired to perform utility-trenching services for Southwest. The owner and operator of a rural electric system, Southwest was responsible for providing electrical services to a residence in Miller County that had been destroyed by a fire caused by a lightning strike. Southwest hired Glover to dig a trench from the residence to a pad-mounted electrical transformer (PMT); place PVC piping, used as a conduit, in the trench from the residence up to, under, and into the PMT; and install electrical wire the length of the conduit. On April 6, 2009, Duran suffered an electrical-shock injury while working near or inside an energized PMT owned by Southwest. That day, Glover used a key and special socket wrench provided by Southwest to open the protective casing covering the transformer so Duran could push the PVC conduit pipe underneath and up into the transformer. As Duran pushed the conduit inside the transformer box, he either touched or came very close to touching an energized part of the transformer and received an electrical shock.

When the injury occurred, Southwest and Glover had a written agreement in place titled "Special Services Contract." That contract contained the following relevant terms:

WHEREAS, Contractor [Glover] represents that it has sufficient experienced personnel and equipment to perform, and Owner [Southwest] desires Contractor to perform, the special services described on Schedule # 1 attached to and made a part of this contract.

....

Contractor agrees to furnish all supervision, labor, tools, transportation, equipment, and materials necessary to complete the special services required by this contract.

It is understood and agreed that Contractor is an independent contractor, having control over the work done pursuant to this contract, and has no authority to obligate Owner for any payment or benefit of any kind to any person or entity.

Contractor agrees to follow standard and reasonable safety practices and procedures while doing the work required by this contract.

Contractor agrees to install and maintain the necessary guards, barriers, and protective and warning devices at locations where work is being performed to prevent accidents involving personnel of Contractor, personnel of Owner, or the general public.

Schedule # 1 described the scope of work as follows:

Contractor to trench & install conduit w/string or wire to specified depth.

Backfill trench & leave to existing grade.

Install pedestal, transformer pads and other equipment to specifications.

In his deposition testimony, Duran stated that he had worked with PMTs before he was injured and that he could tell when transformers were energized because he could hear them humming. Duran stated that on the day he was injured, the transformer box was "extremely loud" and "humming louder than [he had] ever heard it." He said that he knew the transformer was "high voltage." Duran stated that he had been warned by Glover's daughter, April, not to touch anything inside an energized transformer because "it will get you." Duran acknowledged that Southwest could shut off electricity to the transformer and that a Southwest employee had come to a jobsite "once or twice" to de-energize a transformer. He stated that he had never been told that he was supposed to call Southwest to de-energize an energized PMT before opening it.

Glover testified during his deposition that his company had done work for Southwest since 1976. He said that "years ago," Southwest gave him keys and special socket wrenches to open transformers. Glover said that he told "everybody" not to touch anything that could be "hot."

Southwest employee Harold Crane stated in deposition testimony that if a transformer was "dead," then Glover would pull the wire into it, but if "anything [was] hot in there," then Southwest would do it. Crane said that the only people who are supposed to have the special keys and wrenches that open Southwest's transformers are "engineers, linemen, servicemen, District Managers, in other words, [Southwest] hierarchy." Crane stated that only "qualified people" could have keys and that to be "qualified," a person should be a "lineman."

Southwest employee Willie Keener, Jr., testified that the National Electric Safety Code prohibits unqualified people from working inside a transformer unless it is de-energized. He said that in his opinion, "[n]one of Glover's people ... are qualified to do live line work."

Todd Newberg, a serviceman for Southwest, testified that he had been told by management at Southwest that "if somebody is going to be in a live transformer, one of us needs to be there." Newberg stated that Glover "regularly access[ed] live transformers" and that Southwest personnel were not present every time Glover accessed them.

Duran filed a negligence action against Southwest and alleged that it had failed to exercise ordinary care for his safety and to warn against any unusually hazardous conditions.² Southwest filed a motion for summary judgment, which was granted by the circuit court. In granting the motion, the circuit court ruled,

In the case at hand, each of [Duran's] allegations against [Southwest] constitutes an alleged breach of either a duty to provide a reasonably safe work environment for [Duran] or to warn [Duran] of the hazards of working near an energized transformer.

....

The Court rejects [Duran's] arguments that [Southwest] owed [Duran] the duty owed to members of the general public or the duty owed to business invitees. Rather, the Court hereby concludes that the duty of care owed to [Duran] by [Southwest] was that owed to an employee of one's independent contractor.... Applying the correct duty of care, the Court concludes that there are no material questions of fact remaining and that [Southwest] is entitled to summary judgment as a matter of law on [Duran's] complaint. [Southwest] owed no duty to provide [Duran] with a safe work environment or to warn him of the dangers of working near an energized transformer, particularly when working near an energized transformer was an integral part of the work Glover was hired to perform, and where [Duran] was already admittedly aware of the hazard at issue.

....

[The] Court also finds that Arkansas does not recognize an obvious-danger exception to the limited duty owed to an employee of one's independent contractor, and even if it did, there is no genuine issue of material fact as to whether Glover was forced to encounter an open, energized transformer in order to do his work. The evidence is undisputed that the work could be safely performed without Glover or any of his employees coming into contact with an energized transformer.

II. Summary Judgment

A circuit court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. E.g. , Stone v. Washington Reg'l Med. Ctr. , 2017 Ark. 90, 515 S.W.3d 104. The standard is whether the evidence is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a conclusion. E.g. , Talbert v. U.S. Bank , 372 Ark. 148, 271 S.W.3d 486 (2008). The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. E.g. , Walls v. Humphries , 2013 Ark. 286, 428 S.W.3d 517.

On review, this court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. E.g. , Tillman v. Raytheon Co. , 2013 Ark. 474, 430 S.W.3d 698. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. E.g. , Campbell v. Asbury Auto., Inc. , 2011 Ark. 157, 381 S.W.3d 21.

III. Duty of Care

To prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the plaintiff's injuries. E.g. , Fordyce Bank & Tr. Co. v. Bean Timberland, Inc. , 369 Ark. 90, 251 S.W.3d 267 (2007). Duty arises out of the recognition that the relation between individuals may impose upon one a legal obligation for the benefit of another. See Marlar v. Daniel , 368 Ark. 505, 247 S.W.3d 473 (2007). "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." Chew v. Am. Greetings Corp. , 754 F.3d 632, 636 (8th Cir. 2014). Whether a duty is owed to a plaintiff is a matter for the court to decide as a question of law. See D.B. Griffin Warehouse, Inc. v. Sanders , ...