FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CV-11-128-1]
HONORABLE CARLTON D. JONES, JUDGE
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.
Williams & Meek, LLP, by: Karen Hughes, for appellee
Charles Glover and Glover Trenching and Backhoe.
DAN KEMP, CHIEF JUSTICE
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
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.
the injury occurred, Southwest and Glover had a written
agreement in place titled "Special Services
Contract." That contract contained the following
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
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
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
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