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Bennett v. Graves & Associates, Inc.

Court of Appeals of Arkansas, Division III

February 13, 2019

DONNA J. MILDE BENNETT, AS SPECIAL ADMINISTRATRIX FOR LESLIE LEON BENNETT, INDIVIDUALLY AND ON BEHALF OF ALL HEIRS AND BENEFICIARIES OF LESLIE LEON BENNETT APPELLANT
v.
GRAVES & ASSOCIATES, INC.; JOHN DOES I-V; AND MOBLEY CONTRACTORS, INC. APPELLEES

          APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40CV-14-35-2] HONORABLE ROBERT H. WYATT, JR., JUDGE

          Hare, Wynn, Newell & Newton, L.L.P., by: Shawn B. Daniels and Jason W. Earley; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

          Barber Law Firm PLLC, by: Michael J. Emerson, Ben C. Hall, and Adam D. Franks, for appellee Graves & Associates, Inc.

          MIKE MURPHY, JUDGE.

         Appellant Donna Bennett is the personal representative of the estate of Leon Bennett. Leon Bennett was killed when the boom[1] of a crane broke, fell, and struck him while he was working on a construction site. Leon's estate brought a wrongful-death suit against Graves & Associates, the general contractor for the construction project. Graves moved for summary judgment, which was granted, and Bennett appealed. We agree with Bennett that summary judgment was inappropriate. Specifically, we hold that the circuit court erred when it concluded that Graves owed no duty in tort to Leon in the circumstances this case presents, and we reverse and remand.

         According to the complaint, Leon worked for Mobley Contractors, Inc. Mobley was a subcontractor hired by Graves to construct a bridge as part of a project for the Arkansas Highway and Transportation Department (now Arkansas Department of Transportation) (ADT) and for which Graves was the prime contractor. Mobley's task required crane work. On the date of the accident, Leon was working below the boom of a Mobley crane helping stage a concrete pile for use in the construction of the bridge. The Occupational Safety and Health Administration (OSHA) report indicated that some soil had settled under one of the crane's tracks and tilted the crane approximately ten inches, or three degrees, out of level.[2] When the operator lifted the concrete pile into position, the boom became side loaded, [3] with the center of the load about seven feet off the center of the boom. The boom sheared, broke, fell on Leon, and killed him.

         After litigation ensued, Graves filed a third-party complaint against Mobley asserting that Mobley had overseen the crane operations and safety and had contracted to indemnify and hold Graves harmless for any claims arising out of Mobley's work on the job site. Graves and Bennett then filed competing motions for summary judgment, in part on whether Graves owed the deceased any duty of care. Graves argued that contractors have no duty to protect employees of subcontractors from "risks inherent in the jobs they are hired to perform" and thus could not be liable for Leon's death as a matter of tort law because Graves owed no duty to Leon. The circuit court granted Graves's motion for summary judgment in its entirety and denied Bennett's motion for summary judgment. It dismissed Bennett's complaint and Graves's third-party complaint. Bennett now appeals, arguing that Graves owed a duty of care to Leon because it assumed such a duty in its contract with the ADT.

         Summary judgment is to be granted by a circuit court only when there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Shook v. Love's Travel Stops & Country Stores, Inc., 2017 Ark.App. 666, 536 S.W.3d 635. Because the underlying cause of action is based in negligence, the existence of a duty of care is crucial. Under Arkansas law, to prevail on a claim of negligence, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was the proximate cause of the plaintiff's injuries. Id. Because the question of what duty is owed is one of law, we review it de novo. Id. If the court finds that no duty of care is owed, the negligence count is decided as a matter of law. Id.

         When a prime contractor[4] has hired an independent contractor to perform work, the prime contractor has a duty to exercise ordinary care and to warn if there are any unusually hazardous conditions existing that might affect the welfare of the employees. Constr. Advisors, Inc. v. Sherrell, 275 Ark. 183, 628 S.W.2d 309 (1982). In cases such as the one before us, when there is no demonstration of an exercise of actual control or violation of the duty to warn by the one engaging an independent contractor to perform work, we must turn to the contract to see if the prime contractor or owner retained the right of control or supervision and thus assumed an additional duty of care toward employees of the subcontractors doing the work. See, e.g., Williams v. Nucor-Yamato Steel Co., 318 Ark. 452, 454-55, 886 S.W.2d 586, 587 (1994).[5]

         Construction Advisors, supra, and Williams, supra, are illustrative. In Construction Advisors, the appellants contracted with Baxter-Travenol Laboratories to build a plant. Construction Advisors, acting as either the prime or the general contractor, agreed to hire all contractors and subcontractors to do the work, agreed to have all supervisory responsibility over the work, and assumed "the specific duty of seeing that there was compliance with all safety laws and regulations." Constr. Advisors, 275 Ark. at 184, 628 S.W.2d at 310. Charles Sherrell, a subcontractor's employee, was hurt doing construction work and sued Construction Advisors, which argued it owed no duty to Sherrell because the subcontractor had agreed to comply with all safety codes. Rejecting the general contractor's attempt to shift all potential tort liability to the subcontractor as a matter of law, our supreme court wrote:

Here, Baxter-Travenol entered into a contract with Construction Advisors by which Construction Advisors undertook to supervise the construction and see that there was compliance with all safety laws and regulations. The safety codes are for the benefit of workers like Charles Sherrell and those workers were the third-party beneficiaries of the contract. Construction Advisors was liable to any worker injured as a result of its negligent failure to perform its contract. The fact that the subcontractor also agreed to comply with the safety codes does not absolve the prime contractor of liability.

Id. at 188, 628 S.W.2d at 312.

         Compare this with Williams. There, Cache Valley Electric Company (a subcontractor) had been hired to do electrical work in the construction of a Nucor mill. During construction, Williams, an electrician for Cache Valley, died from electrocution while he was attempting to ground a fence near an electrical substation. 318 Ark. at 453, 886 S.W.2d at 586. Williams's personal representative brought a wrongful-death action against Nucor, and Nucor moved for summary judgment. The circuit court ruled in Nucor's favor because, in its contract with Cache Valley, Nucor retained no control over the work or authority to supervise the employees doing it. It was important to our supreme court that "the contract appear[ed] to have been drafted carefully to assure that all control and supervision other than priorities of projects remained with Cache and not with Nucor." Id. at 456, 886 S.W.2d at 588. In affirming, our supreme court wrote that

[i]t is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must ...

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