Franklin v. Osca, Inc., 91-150

• Citation: 825 S.W.2d 812,308 Ark. 409
• Decision Date: 24 February 1992
• Docket Number: No. 91-150,91-150
• Parties: Charles FRANKLIN, et al., Appellants, v. OSCA, INC., Appellee.
• Court: Arkansas Supreme Court

Page 812

825 S.W.2d 812

308 Ark. 409

Charles FRANKLIN, et al., Appellants, v. OSCA, INC., Appellee.

No. 91-150.

Supreme Court of Arkansas.

Feb. 24, 1992.

Blair Arnold, J.T. Skinner, Batesville, David Hodges, John E. Moore, Valerie Denton, Brandon L. Clark, Little Rock, for appellants.

John M. Shackleford, Jr., El Dorado, for appellee.

CORBIN, Justice.

This appeal arises pursuant to ARCP Rule 54(b) from an order granting summary judgment in favor of appellee-defendant Osca.

On August 18, 1987, appellant-plaintiff Charles Franklin sustained chemical burns when he passed out from heat exhaustion while removing calcium chloride from inside an eight-foot tank at the ENSCO Hazardous Waste Facility in El Dorado. At the time Franklin sustained his injuries, he was employed by Thrift Personnel, Inc. (Thrift), and working under the supervision of Plant Industrial Services, Inc. (Plant). Plant had obtained Franklin's services after Osca, the prime contractor hired by ENSCO to clean out the tanks, retained Plant to complete the process of cleaning ENSCO's tanks.

On March 2, 1989, Franklin and his wife filed a personal injury suit against ENSCO and Plant. Plant then sued Osca and Thrift through a third-party complaint seeking contribution; the plaintiffs subsequently amended their complaint to seek damages against Osca and Thrift. On March 1, 1991, the trial court granted Osca's motion for summary judgment, and entered a nunc pro tunc order stating there was no just reason for delay, and there were dangers of hardships or injustice to the plaintiffs and the third-party plaintiff if the trial were not to proceed as to all defendants or third-party defendants. The order further stated that the danger of hardship or injustice would be alleviated by an immediate appeal. Appellants Franklin, ENSCO, and Plant have all filed separate appeals from the summary judgment in favor of appellee Osca.

We find it necessary to address once again the requirements of ARCP Rule 54(b). In Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987), we gave notice that merely tracking the language of Rule 54(b) will not suffice. We held that "the record must show facts to support the conclusion that there is some danger of hardship or injustice which would be alleviated by an immediate appeal." (Emphasis added.) Id. at 575, 726 S.W.2d at 677. In Arkhola, we noted that the trial court's order failed to contain facts supporting the finding that there was no just reason for delay. However, we accepted the appeal and hoped that our clarification of the rule's requirements would resolve the confusion.

Unfortunately, the confusion is still evident. In this case, the trial court's order tracks the language of Rule 54(b), yet does not contain facts to support its determination. On appeal, the various appellants point out the relevant facts. They argue that the question of Osca's liability depends in part on the nature of Osca's relationship with defendants' Plant and ENSCO. For this reason, a subsequent reversal as to defendant Osca would necessitate a trial in which much of the same testimony would be duplicated, and appellants argue that the expense and time involved in a second trial would constitute a hardship on the parties involved. We admit that our reference to the record in the Arkhola case may have been more confusing than illuminating. Under Rule 54(b), the trial court may enter a final judgment or order in a multiple claims or multiple parties case by making an express determination that there is no reason to delay an appeal. In other words, the court must factually set forth reasons in the final judgment, order, or the record, which can then be abstracted, explaining why a hardship or injustice would result if an appeal is not permitted. Accordingly, we accept the appeal in this case, but henceforth give notice that under the terms of Rule 54(b), the final judgment, order or record must contain specific facts supporting the trial court's determination that there is some danger of hardship or injustice which would be alleviated by an immediate appeal.

Osca argues that the summary judgment should be upheld because appellants' response to Osca's motion for summary judgment did not comply with ARCP Rule 56(e). Osca's motion for summary judgment alleged that Osca was entitled to judgment as a matter of law based on three factual assertions and an allegedly supporting 102 page deposition. The three factual assertions Osca relied on are: 1) Plaintiff Charles Franklin was an employee of Osca's independent contractor, Plant; 2) Osca did not in any manner retain supervision or endeavor to perform supervisory control, directly or indirectly, over the operation of Plant, its subcontractor, and Plant's operation was totally independent of Osca; and 3) No meritorious independent acts of negligence are chargeable to Osca. Osca's motion did not contain an affidavit.

In response to Osca's motion, the Franklin plaintiffs asserted that questions of fact existed which should be submitted to a jury, and the plaintiffs filed thirteen depositions allegedly supporting their assertion. Under Rule 56(e), when the party moving for summary judgment has made a prima facie showing of entitlement to summary judgment, the opposing party's response must set forth "specific facts" showing a genuine issue for trial. Osca contends that appellants' attachment of thirteen depositions did not comply with the "specific facts" requirement of 56(e). However, under 56(c), a court may not grant summary judgment unless "the pleadings, depositions, answers to interrogatories and admissions on file ..." reveal that there is no genuine issue for trial. As subsection (c) requires the court to consider virtually the entire documentary record in determining whether summary judgment is appropriate, see D. Newbern Arkansas Civil Practice and Procedure § 26-7 at 256, we reject Osca's argument regarding the technical sufficiency of appellants' response to Osca's motion for summary judgment.

The various appellants rely on three theories of liability in urging us to reverse the summary judgment in favor of Osca. First, they argue that Osca failed to warn Plant's...