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Duran v. Southwest Arkansas Electric Cooperative Corp.

Supreme Court of Arkansas

February 8, 2018

ROBERT DURAN APPELLANT
v.
SOUTHWEST ARKANSAS ELECTRIC COOPERATIVE CORPORATION; CHARLES GLOVER, JR., D/B/A GLOVER TRENCHING & BACKHOE APPELLEES

         APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CV-11-128-1] HONORABLE CARLTON D. JONES, JUDGE

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

          Friday, Eldredge & Clark, LLP, 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 ...


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