Filed: Jun. 12, 2014
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 13-1751 _ Eugene Chew, Jr. lllllllllllllllllllll Plaintiff David Mark Duncan; Nancy Duncan, wife of David Mark Duncan lllllllllllllllllllll Plaintiffs - Appellants Daniel Chase Hoskins; Whitney Dale Hoskins lllllllllllllllllllll Plaintiffs v. American Greetings Corporation lllllllllllllllllllll Defendant - Appellee _ No. 13-1966 _ Eugene Chew, Jr. lllllllllllllllllllll Plaintiff - Appellant David Mark Duncan; Nancy Duncan, wife of David
Summary: United States Court of Appeals For the Eighth Circuit _ No. 13-1751 _ Eugene Chew, Jr. lllllllllllllllllllll Plaintiff David Mark Duncan; Nancy Duncan, wife of David Mark Duncan lllllllllllllllllllll Plaintiffs - Appellants Daniel Chase Hoskins; Whitney Dale Hoskins lllllllllllllllllllll Plaintiffs v. American Greetings Corporation lllllllllllllllllllll Defendant - Appellee _ No. 13-1966 _ Eugene Chew, Jr. lllllllllllllllllllll Plaintiff - Appellant David Mark Duncan; Nancy Duncan, wife of David ..
More
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1751
___________________________
Eugene Chew, Jr.
lllllllllllllllllllll Plaintiff
David Mark Duncan; Nancy Duncan, wife of David Mark Duncan
lllllllllllllllllllll Plaintiffs - Appellants
Daniel Chase Hoskins; Whitney Dale Hoskins
lllllllllllllllllllll Plaintiffs
v.
American Greetings Corporation
lllllllllllllllllllll Defendant - Appellee
___________________________
No. 13-1966
___________________________
Eugene Chew, Jr.
lllllllllllllllllllll Plaintiff - Appellant
David Mark Duncan; Nancy Duncan, wife of David Mark Duncan
lllllllllllllllllllll Plaintiffs
Daniel Chase Hoskins; Whitney Dale Hoskins
lllllllllllllllllllll Plaintiffs - Appellants
v.
American Greetings Corporation
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Jonesboro
____________
Submitted: January 13, 2014
Filed: June 12, 2014
____________
Before WOLLMAN and SHEPHERD, Circuit Judges, and WEBBER,1 District
Judge.
____________
SHEPHERD, Circuit Judge.
David Duncan, Eugene Chew, and Daniel Hoskins (the plaintiffs), employees
of Osceola Municipal Light & Power (OMLP), brought a negligence suit against
American Greetings Corporation. The district court2 granted American Greetings’s
motion for summary judgment, and the plaintiffs appealed. We affirm.
1
The Honorable E. Richard Webber, Senior United States District Judge for the
Eastern District of Missouri, sitting by designation.
2
The Honorable Brian S. Miller, Chief United States District Judge for the
Eastern District of Arkansas.
-2-
I.
On September 23, 2009, an American Greetings employee noticed that a
stinger3 outside American Greetings’s Osceola, Arkansas facility was loose and
notified the facility’s maintenance supervisor of the problem. American Greetings’s
maintenance supervisor notified Billy Griffin, OMLP’s electrical manager. Griffin
then called David Duncan and directed Duncan and his crew to meet him at the
American Greetings facility. When Duncan and his crew arrived, they were met by
Griffin and Lance Collins, who was American Greetings’s maintenance manager and
was also a trained electrician. Griffin and Collins were discussing why American
Greetings’s plant had not lost power because of the loose stinger.
Griffin instructed Duncan to retrieve a voltmeter from his truck so the crew
could read the transformer’s voltage. Griffin returned with a voltmeter that had a
safety rating of only 1,000 volts. When Griffin approached the transformer, the
transformer’s exterior and interior doors were open.4 The transformer was designed
with two doors, an outer, exterior door and an inner, flash-guard barrier door. The
manufacturer nameplate, which indicated the transformer’s voltage, was affixed to the
inside of the exterior door. The nameplate indicated that the incoming, or primary,
voltage was 13,800 volts and the outgoing, or secondary, voltage, was 4,160 volts.
The inner door was painted red and warned “danger high voltage.” Because the
transformer doors were open, the plaintiffs were unable to read the manufacturer’s
nameplate when they returned with the voltmeter. After returning, Duncan asked
3
In layman’s terms, a stinger is an electrical line running from a utility pole to
a transformer. The transformer steps down high voltage electricity to low voltage
electricity.
4
The parties disagree as to who opened the doors, though the parties agree that
a specialized socket wrench was needed to open the inner door.
-3-
Griffin and Collins if they were going to turn off the flow of electricity to the
transformer. Collins shook his head no, and Duncan proceeded to approach the
secondary-side of the transformer with the inadequate voltmeter. By approaching the
4,160-volt transformer with a 1,000-volt voltmeter, Duncan created an arc flash that
injured the plaintiffs. The plaintiffs knew that the transformer was energized and had
been trained to measure voltage. Despite knowledge of the potential risks involved,
Duncan incorrectly believed that the transformer he approached had a total voltage
of 480 volts because other transformers in the area had the lower level voltage.
The plaintiffs filed this diversity suit against American Greetings in the United
States District Court for the Eastern District of Arkansas. See 28 U.S.C. § 1332. The
plaintiffs alleged that American Greetings’s negligence, in particular, American
Greetings’s failure to properly label its electrical system and warn the plaintiffs of the
unique nature of its transformers, caused Duncan’s incorrect assumptions about the
secondary transformer’s voltage. American Greetings responded that pursuant to the
Arkansas Supreme Court’s holding in Jackson v. Petit Jean Electric Co-op., 606
S.W.2d 66 (Ark. 1980), it owed no duty to warn the plaintiffs, who were experienced
electrical contractors, of the dangers of electricity and the risk of arc flash when
improper equipment is used. The district court agreed with American Greetings that
Petit Jean controlled and granted American Greetings’s summary judgment motion.
The plaintiffs appealed the district court’s final judgment. See 28 U.S.C. § 1291.
II.
A.
We review the district court’s grant of summary judgment and its interpretation
of state law de novo, considering the facts in the light most favorable to the
nonmoving party. See Raines v. Safeco Ins. Co., 637 F.3d 872, 874-85 (8th Cir.
2011). We will affirm the district court’s grant of summary judgment if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Because we are a federal court sitting in
-4-
diversity, we apply the substantive law of the forum state. See E-Shops Corp. v. U.S.
Bank Nat’l Ass’n, 678 F.3d 659, 663 (8th Cir. 2012). Here, all parties agree that
Arkansas law applies to this case. As such, “[w]e are bound by decisions of the
Arkansas Supreme Court as to the meaning of Arkansas law.” See Curtis Lumber
Co., Inc. v. La. Pac. Corp.,
618 F.3d 762, 771 (8th Cir. 2010). When the Arkansas
Supreme Court has not addressed an issue, we must predict what rule the court would
adopt and may look to the Arkansas Court of Appeals for guidance in this task. See
id.; Doe v. Baxter Healthcare Corp.,
380 F.3d 399, 407 (8th Cir. 2004).
“Under Arkansas law, in order to prevail on a claim of negligence, the plaintiff
must prove [1] that the defendant owed a duty to the plaintiff, [2] that the defendant
breached that duty, and [3] that the breach was the proximate cause of the plaintiff’s
injuries.” See Yanmar Co. v. Slater, 386 S.W.3d 439, 449 (Ark. 2012). “[T]he
question of what duty, if any, is owed a plaintiff alleging negligence is always a
question of law and never one for the jury.” Id.; D.B. Griffin Warehouse, Inc. v.
Sanders (Griffin I),
986 S.W.2d 836, 839-41 (Ark. 1999). If, as a matter of law, the
defendant owed the plaintiff no duty, then “the negligence count is decided as a
matter of law, and summary judgment . . . is appropriate.” Griffin
I, 986 S.W.2d at
840. Whether the defendant breached its duty to the plaintiff is a question of fact for
the jury to resolve. See Catlett v. Stewart,
804 S.W.2d 699, 702 (Ark. 1991).
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. See Kowalski v. Rose Drugs of Dardanelle, Inc.,
378 S.W.3d 109, 114-15 (Ark. 2011); Clark v. Transcon. Ins. Co.,
197 S.W.3d 449,
453-55 (Ark. 2004). One instance of a unique standard of care, recognized by the
Arkansas Supreme Court in Petit Jean, applies to an “employer of an independent
contractor,” who “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.”
See 606 S.W.2d at 68. These duties, however, which are
-5-
analogous to those a premises owner owes a business invitee, do “not contemplate a
duty to warn of obvious hazards which are an integral part of the work the contractor
was hired to perform.” Id.; Gordon v. Matson, 439 S.W.2d 627, 629 (Ark. 1969).
Finally, the Petit Jean court recognized that when the employer of the independent
contractor exercises control over the contractor, the employer of the independent
contractor must exercise that control with reasonable care. See Petit Jean Electric Co-
op., 606 S.W.2d at 68-69; see also Williams v. Nucor-Yamato Steel Co.,
886 S.W.2d
586, 587-88 (Ark. 1994).
Arkansas courts have applied the principles articulated in Petit Jean to a variety
of circumstances. In Petit Jean, the Arkansas Supreme Court reasoned that an
electrical cooperative that hired a construction company to rebuild electrical lines had
no duty “to isolate or de-energize its lines or to warn employees of [the] electrical
contractor that the work as contracted for would be dangerous if not done properly.”
Petit Jean Electric Co-op., 606 S.W.2d at 68. The Arkansas Supreme Court
reaffirmed its Petit Jean holding in Stoltze, rejecting the plaintiff’s attempt to
distinguish Petit Jean by claiming that he was not qualified to work around energized
electrical lines. See Stoltze v. Ark. Valley Elec. Co-op.,
127 S.W.3d 466, 476-77
(Ark. 2003). The court reasoned that the plaintiff’s employer, an independent
contractor hired by the defendant, retained the responsibility to inform the plaintiff
of the dangers involved with the plaintiff’s line of work. See
id. Arkansas courts
have applied the Petit Jean standard to risks other than those associated with
electricity, including the risk that a roofer would fall through a skylight, see D.B.
Griffin Warehouse, Inc. v. Sanders (Griffin II),
76 S.W.3d 254, 261-62 (Ark. 2002);
Crenshaw v. Ark. Warehouse, Inc.,
379 S.W.3d 515, 516-17 (Ark. Ct. App. 2010),
and the risk that a commercial painter would be hit by a car when painting an entrance
to a residential subdivision, see Culhane v. Oxford Ridge, LLC,
362 S.W.3d 325,
327, 329-30 (Ark. Ct. App. 2009).
-6-
The plaintiffs contend that the standards articulated in Petit Jean do not apply
to this appeal because (1) OMLP had no formal, written contract with American
Greetings and (2) Federal and Arkansas regulations have imposed an alternative
standard of care on American Greetings. We disagree.
First, Petit Jean applies to this case despite the absence of a written contract.
The plaintiffs attempt to distinguish this case from Petit Jean and other independent
contractor cases because those cases have typically made reference to written
contracts. See e.g., Stoltze, 127 S.W.3d at 476-77; Petit Jean Electric
Co-op., 606
S.W.2d at 68. The contracts’ significance in these cases, however, is that they may
impose special duties upon a defendant, see Petit Jean Electric Co-
op., 606 S.W.2d
at 68-69, or potentially reflect a defendant’s “right of control” over the contractor, see
Stoltze, 127 S.W.3d at 473-74. Some cases, such as Griffin
I, 986 S.W.2d at 838-40,
have omitted any discussion of the written contract altogether. The written contracts
may memorialize or clarify the employer-independent contractor relationship central
to Petit Jean, but such relationships may also arise through conduct, see Howard v.
Dallas Morning News, Inc.,
918 S.W.2d 178, 182-83 (Ark. 1996). The arrangement
between OMLP and American Greetings, though somewhat unique,5 is not
significantly distinguishable from the relationship contemplated by Petit Jean: an
independent contractor called upon to perform a specialized task that involved
obvious hazards.
Second, the Occupation Safety and Health Administration (OSHA) regulations
and the Arkansas statutes and regulations that the plaintiffs cite fail to impose an
alternative duty on American Greetings. Though a violation of an OSHA regulation
5
The record indicates that OMLP conveyed the transformers at issue to
American Greetings in 2007 as part of an economic incentive package when
American Greetings moved to Osceola. See J.A. 32, 270-71. Periodically, American
Greetings would call OMLP to fix minor issues related to the electrical lines, such as
blown fuses. See J.A. 363.
-7-
may be relevant evidence of whether American Greetings breached a duty it may have
owed the plaintiffs, see Dunn v. Brimer, 537 S.W.2d 164, 165-66 (Ark. 1976), the
regulations do not independently create private rights of action or impose alternative
duties on defendants. See Solis v. Summit Contractors, Inc.,
558 F.3d 815, 828-29
(8th Cir. 2009); see also 29 U.S.C. § 653(b)(4) (“Nothing in this chapter shall be
construed to . . . enlarge or diminish or affect in any other manner the common law
or statutory rights, duties, or liabilities of employers and employees under any law
with respect to injuries, diseases, or death of employees arising out of, or in the
course of, employment.”); Koch v. Northport Health Servs. of Ark., LLC,
205 S.W.3d
754, 766 (Ark. 2005) (reasoning that a federal regulation did not provide the “relevant
standard of care” but, nonetheless, could still serve as “evidence of the types of
considerations that should bear on the reasonable person”).6 Similarly, Arkansas
courts have been hesitant to permit Arkansas statutes and regulations to expand
common law causes of action, see Cent. Okla. Pipeline, Inc. v. Hawk Field Servs.,
LLC,
400 S.W.3d 701, 711 (Ark. 2012);
Kowalski, 378 S.W.3d at 118-19, and only
do so when faced with clear legislative intent. See Shannon v. Wilson,
947 S.W.2d
349, 356-58 (1997). The plaintiffs have failed to identify any Arkansas statutes or
regulations that clearly impose duties on persons in the position of American
Greetings, much less an Arkansas case supporting their claim that American
Greetings owed them an alternative duty.
Satisfied that the principles set forth in Petit Jean and its progeny control this
case, we now apply Petit Jean.
B.
This case fits within the no-duty rule articulated by Petit Jean, and thus the
plaintiffs’ negligence claim fails. The plaintiffs were independent contractors
6
We express no opinion on whether American Greetings was an “employer” as
the term is used in OSHA’s regulations.
-8-
brought to American Greetings’s facility by their supervisor to perform electrical
work. The plaintiffs, much like the plaintiffs in Stoltze and Petit Jean, were
experienced electrical workers, who understood the obvious risks of electricity
inherent in their profession. See Stoltze, 127 S.W.3d at 469, 476; Petit Jean Electric
Co-op., 606 S.W.2d at 68. Moreover, the plaintiffs’ injuries, much like the plaintiffs’
injuries in Stoltze and Petit Jean, arose because of the dangerous nature of electrical
work. Evidence of American Greetings’s alleged failure to apply best safety practices
and its failure to deenergize the transformer does not give rise to a material question
of fact because these actions directly relate to the obvious, core hazard an electrical
utility worker faces—the danger of electricity when approached with improper
equipment. See Petit Jean Electric
Co-op., 606 S.W.3d at 68. The principles
established in Petit Jean acknowledge that the contractor is best able to assess the
obvious risks inherent in the contractor’s chosen trade. Here, the plaintiffs had years
of experience working with OMLP, understood the danger of approaching a
transformer with incompatible equipment, and had been trained to measure voltage.
Moreover, as employees of OMLP, the plaintiffs were compensated for working in
a field that involved the inherent risks of electricity.
Further, because American Greetings did not exercise control over the
plaintiffs’ work, American Greetings acquired no additional duties. Without a
contract memorializing the parties’ rights and obligations, we analyze the parties’
conduct to determine whether American Greetings retained control over the plaintiffs.
See Nucor-Yamato Steel Co., 886 S.W.2d at 587. In their effort to show control, the
plaintiffs rely on Collins’s decision to keep power flowing to the transformer. This
single fact is insufficient to show American Greetings exercised control over the
plaintiffs and the worksite. The plaintiffs, who were employees of OMLP, were
called to American Greetings’s facility by their OMLP manager Griffin, who was
present at the facility when they arrived. Griffin directed Duncan to retrieve the
voltmeter, and Griffin directed Duncan to check the voltage of the transformer.
Though Collins allegedly determined that the power should not be turned off, Duncan
-9-
testified that Griffin was principally responsible for the plaintiffs and that Griffin was
ultimately the boss. J.A. 72, 79. In sum, the plaintiffs were under the control of
Griffin, who directed the means, methods, and details of the plaintiffs’ work, not
American Greetings. See Nucor-Yamato Steel Co., 886 S.W.2d at 587-88 (reasoning
that the employer of an independent contractor must do more than make suggestions
or recommendations or prescribe alterations or deviations in order to retain control);
Davis v. Lingl Corp.,
641 S.W.2d 27, 29 (Ark. 1982) (reasoning that none of the
general contractor defendants “retained the right or undertook to control or supervise
the manner in which” the plaintiff worked and therefore could not be liable for the
plaintiff’s injuries); accord Koch Refining Co. v. Chapa,
11 S.W.3d 153, 156 (Tex.
1999) (per curiam) (“Every premises owner must have some latitude to tell its
independent contractors what to do, in general terms, and may do so without
becoming subject to liability.”).
Finally, this case does not involve American Greetings’s general duty to warn
of latent or hidden dangers. According to the plaintiffs, Petit Jean imposed upon
American Greetings a duty to warn of latent dangers. The plaintiffs assert that the
hazards the transformer posed were hidden or latent because American Greetings
failed to properly label the transformer, the transformer doors were open and blocking
the warning labels, and the transformers were arranged in a unique manner. In the
abstract, the plaintiffs are correct that an employer of an independent contractor owes
a duty to warn of latent or hidden dangers. The plaintiffs, however, misconstrue the
scope of this duty, which does not encompass an obligation to warn of the latent
characteristics of an obvious hazard that arises because of the nature of the
contractor’s work. In Griffin II, which involved a wrongful-death suit brought by the
widow of a roofing contractor who fell through a roof skylight and died, the plaintiff
presented testimony at trial that one of the roof’s skylights was rotting. Griffin II, 76
S.W.3d at 261-63. The plaintiff claimed that according to Petit Jean this was a hidden
or latent hazard. On appeal, however, the Arkansas Supreme Court reasoned that
testimony about the rotting skylight was “irrelevant” because the skylight presented
-10-
an obvious danger, even if aspects of the skylight (i.e., that it was rotting) remained
hidden. Id. at 263.
Here, the risk of working around electricity, specifically the risk that an arc
flash would occur if a transformer was approached with improper equipment, was an
obvious risk inherent in the plaintiffs’ work. Though some details about American
Greetings’s transformers may have been hidden, like the alleged rotting skylight in
Griffin II, the ultimate hazard the transformer posed was obvious, and the contractors
retained the ultimate responsibility to assess these risks. See id. at 263; see also
Crenshaw, 379 S.W.3d at 517 (“The skylights may have in fact been hidden to some
extent, but the danger of falling through them was an obvious one in light of the
[plaintiff] roofer’s knowledge that those skylights existed.”). The transformer became
hazardous to the plaintiffs because they engaged with it in the course of their work.
American Greetings did not exercise control over the plaintiffs and accordingly had
limited ability to ensure that the plaintiffs performed their work safely. Instead, the
party in control of the plaintiffs, their employer OMLP, was responsible for
overseeing the plaintiffs.
To conclude, American Greetings owed the plaintiffs no duty to warn of the
well-known hazard of approaching a charged transformer with improper equipment.
Likewise, because the nature of the plaintiffs’ work necessarily implicated these
obvious hazards, American Greetings owed no duty to exercise ordinary care for the
plaintiffs’ safety. Because the plaintiffs have failed to demonstrate that American
Greetings owed them a duty, their negligence claims fail as a matter of law.
III.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of American Greetings.
______________________________
-11-
