Kincade v. U.S. Electrical Motors, Inc.

• Decision Date: 13 April 2000
• Docket Number: PLAINTIFF-APPELLANT,INTERVENOR-APPELLANT,DEFENDANT-APPELLEE,No. 99-3621,99-3621
• Citation: 219 F.3d 800
• Parties: (8th Cir. 2000) FORREST KINCADE, PARENT AND GUARDIAN OF JASON KINCADE, AN INCOMPETENT,, LIBERTY MUTUAL INSURANCE COMPANY,, v. U.S. ELECTRICAL MOTORS, INC.; PRECISION, INC., DEFENDANTS BORTON, INC.;, JOHN DOES, 1 - 10; M/C ELECTRIC, DEFENDANTS. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 800

219 F.3d 800 (8th Cir. 2000)

FORREST KINCADE, PARENT AND GUARDIAN OF JASON KINCADE, AN INCOMPETENT, PLAINTIFF-APPELLANT, LIBERTY MUTUAL INSURANCE COMPANY, INTERVENOR-APPELLANT, v. U.S. ELECTRICAL MOTORS, INC.; PRECISION, INC., DEFENDANTS

BORTON, INC.; DEFENDANT-APPELLEE,

JOHN DOES, 1 - 10; M/C ELECTRIC, DEFENDANTS.

No. 99-3621

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 13, 2000

Filed: July 26, 2000

Appeal from the United States District Court for the Eastern District of Arkansas.

Before Richard S. Arnold, Ross, and Morris Sheppard Arnold, Circuit Judges.

Ross, Circuit Judge.

In this diversity case, Forrest Kincade, as parent and guardian of Jason Kincade, and Liberty Mutual Insurance Company appeal from a judgment of the district court ¹ entered in favor of Borton, Inc. We affirm.

In 1992 Borton entered into a contract with Producers Rice Mill (PRM), agreeing to provide the structural and concrete work necessary to construct a rice drying facility for PRM in Stuttgart, Arkansas. PRM agreed to furnish and install all electrical and mechanical equipment necessary to complete and make the facility operable. In April 1993 the parties entered into a second contract, under which Borton provided labor, as directed by PRM, to install the mechanical equipment in the facility. PRM furnished the machinery and "ancillary items"and retained "charge and control" of the worksite. In October 1993, Jason Kincade, a PRM employee, was injured while working on an unguarded tail pulley assembly of the rice conveyor belt.

On behalf of his son, Forrest Kincade filed a negligence and products liability action against Borton; Liberty Mutual, PRM's workers' compensation carrier, intervened. Borton filed a motion for summary judgment, which the district court granted. The court held that Borton had not owed a duty of care to Jason because the undisputed evidence was that PRM was responsible for the design, fabrication, and installation of the guards for the conveyor system.

Appellants first argue that the court erred in granting summary judgment because it disregarded their expert witnesses' affidavits indicating that Borton owed a duty of care to Jason. They further argue that the affidavits met the Daubert standard, see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and created a factual dispute for the jury as to duty. We need not resolve any Daubert issues. It is well established that "[t]he question of the duty owed to the plaintiff . . . is always one of law and never one for the jury." Mans v. Peoples Bank of Imboden, 10 S.W.3d 885, 888 (Ark. 2000). "Duty is a concept which arises out of the recognition that relations between individuals may impose upon one a legal obligation for another." Id.

The district court properly granted summary judgment on the ground that Borton did not owe a duty of care to Jason. If "no duty of care is owed," there is no liability. Id. As the court held, the contracts unambiguously provided that PRM had the responsibility for the design, fabrication, and installation of the mechanical and electrical systems, which included the guards. Moreover, viewing the evidence and all reasonable inferences therefrom in the light most favorable to appellants, see Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir. 2000), we agree with the district court that the parties acted in conformity with the plain language of the contracts.

Contrary to appellants' arguments, there is no evidence raising a...