Henderson v. Tyson Foods, Inc.

• Decision Date: 07 October 2015
• Docket Number: No. CV–15–170,CV–15–170
• Citation: 473 S.W.3d 52
• Parties: Brenda Henderson, Appellant v. Tyson Foods, Inc., Appellee.
• Court: Arkansas Court of Appeals

473 S.W.3d 52

Brenda Henderson, Appellant

v.Tyson Foods, Inc., Appellee.

No. CV–15–170

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered October 7, 2015

Maximillan Sprinkle and Marion A. Humphrey, Little Rock, for appellant.

Munson, Rowlett, Moore & Boone, P.A., Little Rock, by: Bruce Munson, Jane M. Yocum, and Ashleigh Phillips, for appellee.

ROBERT J. GLADWIN, Chief Judge

Appellant Brenda Henderson worked for Packers Sanitation Services, Inc. (PSSI), which had contracted to clean and sanitize equipment for appellee Tyson Foods, Inc. (Tyson). After Henderson was injured on the job, she filed a negligence suit against Tyson. The Jefferson County Circuit Court dismissed her claim, awarding Tyson summary judgment. On appeal, Henderson argues that the trial court erred in awarding summary judgment because there were questions of material fact about whether Tyson reserved a right to control its sanitation subcontractor, PSSI, and whether Tyson failed to use ordinary care for Henderson's safety and owed a duty to warn her about unreasonably unsafe conditions. We affirm.

I. Statement of Facts

Henderson claimed in her August 16, 2013 complaint against Tyson that PSSI acted as an agent of Tyson in managing the provision of some sanitation services at Tyson facilities. She claimed that while she was employed by PSSI to perform the sanitation work, she was injured at a Tyson plant. She was cleaning a piece of production equipment, a "C.A.T. wheel," when her glove became trapped, and her hand was pulled into the machine and against the blade. She alleged in her complaint that Tyson was, or should have been, aware that the C.A.T. wheel posed a substantial risk of injury to her and that precautions were not being used to prevent injury during maintenance of the dangerous machinery. She charged that she was severely injured and that Tyson controlled the operation, planning, management, and quality control of the facility. She alleged that she asserted claims against Tyson because it directly participated and controlled the operation and maintenance of the machinery and owed a duty as owner of the facility.

Tyson answered, denying that PSSI was its agent, and claimed that PSSI was an independent contractor with which Tyson contracted to provide services, and that the "Sanitation Service Agreement" (SSA) between Tyson and PSSI controlled. Tyson filed a motion for summary judgment on March 26, 2014, alleging that the machine Henderson was cleaning was under power before she began cleaning it, and that there was no dispute that Henderson did not attempt to disconnect the power prior to her injury. Tyson also claimed that Henderson's complaint against it should be dismissed because her employer, PSSI, agreed as a condition of its contract to take on the duties to train or warn Henderson regarding risks involved with cleaning the machinery. Tyson relied on Williams v. Nucor–Yamato Steel Company, 318 Ark. 452, 886 S.W.2d 586 (1994), arguing that no duty exists between a prime contractor and the employee of an independent contractor unless there is such a retention of a right of supervision by the prime contractor that the contractor is not entirely free to do the work his own way.

Attached to the summary-judgment motion was the SSA, which provided that PSSI was to perform sanitizing operations for areas inside and outside the facility, including equipment, in a manner "meeting all regulatory agency and Tyson sanitation standards, safety," and more, including the facility's "SSOPs." Also, PSSI was to furnish all chemicals, supplies, equipment, and labor, including supervisors, necessary to clean and sanitize the equipment. The SSA provided that PSSI would train, supervise, and control the "labor as is necessary to perform the duties provided for" in the SSA. PSSI contracted to perform as an independent contractor and in a manner "which it deems in its own best judgment to be suitable for the purposes contemplated by this" SSA. PSSI agreed to determine the appropriate methods for safely cleaning the equipment and to train its employees. PSSI also agreed to provide safety practices and procedures to prevent injuries to its employees.

Henderson replied, alleging that Tyson did not delegate its duty of care to PSSI. She claimed that an operator like Tyson owes a duty of care for the dangers in its facility to the employees of its subcontractor, citing D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254 (2002), for the proposition that an employer of an independent contractor 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. Henderson argued that the language of the SSA wherein PSSI was to perform "in a manner meeting all regulatory agency and Tyson sanitation standards, safety, food safety and quality assurance requirements, including the Plant's SSOP," was a reservation of control by Tyson. Finally, Henderson claimed that she was not properly trained and that the danger was not an integral part of the work. Based on these arguments, she asserted that summary judgment was not appropriate. Attached to her response was her own affidavit alleging that she was trained for two days to clean the C.A.T. wheel and that she had performed the job for about a year prior to the injury. She stated that, at times while she worked, a Tyson supervisor walked through with a PSSI supervisor and that she understood that Tyson maintained the machines.

The trial court granted Tyson's motion for summary judgment by order filed September 16, 2014. The trial court found that Tyson provided sufficient proof to establish a prima facie case that, as a matter of law, it owed no duty to Henderson. The trial court was not convinced that the portions of the contract that required PSSI to comply with Tyson's sanitation standards, safety, food safety, and quality assurance requirements were evidence that Tyson retained control of the supervision of PSSI's employees. Neither was the court convinced of Tyson's control by Henderson's affidavit stating, "At times, a Tyson supervisor walked through with a PSSI supervisor." The trial court also found that the terms of the contract provided that PSSI's job was to perform tasks that involved obvious hazards. The trial court stated in its opinion that,

[w]hen equipment to be cleaned includes grinders, eviscerators, saws, and augers, it is obvious that the task is hazardous. The Court must also note that the plaintiff states that she had been cleaning the piece of equipment without incident for approximately one year prior to her injury.

Finally, the court cited Jackson v. Petit Jean Electric Cooperative, 270 Ark. 506, 606 S.W.2d 66 (1980), and D.B. Griffin, supra, in its finding that Tyson did not owe Henderson a duty to properly train or warn her of potential risks.

Henderson filed a motion to reconsider, but that motion was deemed denied when the trial court did not rule on it within thirty days of its filing. Ark. R. Civ. P. 59 (2014). Henderson then filed a timely notice of appeal, and this appeal followed, wherein Henderson argues that Tyson reserved a right to control its sanitation subcontractor, PSSI, and that Tyson failed to use ordinary care for her safety and owed her a duty to warn about unreasonably unsafe conditions.

II. Standard of Review

Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. O'Marra v. Mac K ool, 361 Ark. 32, 204 S.W.3d 49 (2005) ; Riverdale Dev. Co. v. Ruffin Bldg. Sys. Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). The burden of sustaining a motion for summary judgment is the responsibility of the moving party. O'Marra v. Mac K ool, supra ; Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the nonmoving party must meet proof with proof and demonstrate the existence of a material issue of fact. O'Marra v. Mac K ool, supra ; Pugh v. Griggs, supra. We determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered, viewing the evidence in the light most favorable to the nonmoving party, resolving all doubts and inferences against the moving party. O'Marra v. Mac K ool, supra ; George v. Jefferson Hosp. Ass'n Inc., 337 Ark. 206, 987 S.W.2d 710 (1999) ; Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Our review is not limited to the pleadings but also focuses on the affidavits and other documents filed by the parties. Hisaw v. State Farm Mut. Auto. Ins. Co., 353 Ark. 668, 122 S.W.3d 1 (2003) ; Brown v. Wyatt, 89 Ark. App. 306, 202 S.W.3d 555 (2005). After reviewing the undisputed facts, we will reverse a grant of summary judgment if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Hisaw v. State Farm Mut. Auto Ins. Co., supra ; Brown v. Wyatt, supra.

Draper v. ConAgra Foods, Inc., 92 Ark. App. 220, 228–29, 212 S.W.3d 61, 66 (2005).

III. Reservation of Right to Control

Regarding the issue of distinguishing between an independent contractor and an employee, the Arkansas Supreme Court stated in Kistner v. Cupples, 2010 Ark. 416, at 6–7, 372 S.W.3d 339, 343–44, as follows:

We have long held that an independent contractor is one who contracts to do a job according to his own method and without being subject to the control of the other party, except as to the result of the work.See Ark. Transit Homes, [Inc. v. Aetna Life & Cas. ], 341 Ark. 317, 16 S.W.3d 545 (2000) ; Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241 (1988) ; Moore v. Phillips, 197 Ark. 131, 120 S.W.2d 722 (1938) ; W.H. Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4 (1926). The governing distinction is that if control of

...