Craig v. Traylor

Robert CRAIG v. Mike TRAYLOR

95-789                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1996


1.   Appeal & error -- appellate court does not consider matters
     outside the record -- on the record supplied, notice of appeal
     was timely. -- Where the manufacturer's post-trial motion and
     the trial court's order, if any, disposing thereof were not
     included as part of the record in this case, the court could
     not consider them; on the record before the court appellant's
     notice of appeal was filed within thirty days of the final
     judgment and was therefore timely.

2.   Workers' compensation -- jurisdiction is concurrent in the
     courts and commission -- trial court properly found that it
     had concurrent jurisdiction to determine applicability of
     Workmen's Compensation Law. -- Both sources cited by appellee
     suggested that for determination of workmen's compensation
     claims exclusive jurisdiction in the agency is superior to
     concurrent jurisdiction in the courts and agency; however,
     Arkansas cases suggest to the contrary; therefore, the trial
     court did not err in holding that it had concurrent
     jurisdiction to determine the applicability of the Workers'
     Compensation Law.

3.   Appeal & error -- trial court failed to rule on whether
     Workers' Compensation Law applied here -- issue waived on
     appeal. -- Although the trial court ruled it had concurrent
     jurisdiction to determine the applicability of the Workers'
     Compensation Law to this case, it never ruled whether the
     Workers' Compensation Law did or did not apply; the
     applicability issue was left unresolved below, and was
     therefore waived on appeal. 

4.   Judgment -- summary judgment -- standards on review. -- It
     need only be decided if the granting of summary judgment was
     appropriate based on whether the evidentiary items presented
     by the moving party in support of the motion left a material
     question of fact unanswered; the burden of sustaining a motion
     for summary judgment is always the responsibility of the
     moving party; all proof submitted must be viewed in a light
     most favorable to the party resisting the motion, and any
     doubts and inferences must be resolved against the moving
     party; summary judgment is proper when a claiming party fails
     to show that there is a genuine issue as to a material fact
     and when the moving party is entitled to summary judgment as
     a matter of law; it is further well-settled that once the
     moving party establishes a prima facie entitlement to summary
     judgment by affidavits or other supporting documents or
     depositions, the opposing party must meet proof with proof and
     demonstrate the existence of a material issue of fact.

5.   Negligence -- comparative fault requires a determination of
     proximate cause -- proximate cause defined. -- Under the
     comparative fault statute, there must be a determination of
     proximate cause before any fault can be assessed against a
     claiming party, and proximate cause is generally a question
     for the jury; proximate cause becomes a question of law only
     if reasonable minds could not differ; proximate cause is
     defined as "that which in a natural and continuous sequence,
     unbroken by any efficient intervening cause, produces the
     injury, and without which the result would not have occurred." 
     
6.   Judgment -- trial court invaded province of the jury in making
     a proximate cause determination -- trial court erred in
     granting summary judgment as a matter of law. -- Where
     appellant presented some evidence that appellee failed to
     instruct appellant on operating and cleaning procedures for
     the spreader and that appellee failed to take steps to protect
     appellant from inadvertent contact with the sprocket mechanism
     as required by 29 C.F.R. 1928.57, reasonable minds could
     therefore differ as to whether appellee's or appellant's
     actions were the proximate cause of the accident; in addition,
     violation of a safety statute is evidence of negligence to be
     considered by a jury, provided the violation is the proximate
     cause of the injury; consequently, the trial court invaded the
     province of the jury, at least by resolving the proximate
     cause issue, and thereby erred in granting judgment as a
     matter of law.  


     Appeal from Washington Circuit Court, Second Division; Kim M.
Smith, Judge; reversed and remanded.
     Everett, Mars & Stills, by:  David D. Stills, for appellant.
     Davis, Cox & Wright, PLC, by:  Tim E. Howell, for appellee.

     Donald L. Corbin, Justice.Associate Justice Donald L.
Corbin, 2-12-96 *ADVREP6*





ROBERT CRAIG,
                    APPELLANT,

V.

MIKE TRAYLOR,
                    APPELLEE,



95-789



APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT, SECOND
DIVISION, NO. CIV 92-108,
HON. KIM M. SMITH, JUDGE,



REVERSED AND REMANDED.






     Appellant, Robert Craig, appeals the order of the Washington
County Circuit Court granting summary judgment to appellee, Mike
Traylor, on appellant's complaint for negligence.  This appeal
presents questions about the law of torts.  Our jurisdiction is
pursuant to Ark. Sup. Ct. R. 1-2(a)(16).  
     While employed by appellee, appellant injured his hand in a
chain-and-sprocket mechanism of a fertilizer spreader owned by
appellee.  Appellant filed suit against appellee and the
manufacturer of the spreader.  The trial court entered an order
granting summary judgment to appellee.  That order is the sole
subject of this appeal.  Appellant's remaining claims against the
manufacturer were tried to a jury that found in favor of appellant. 
The manufacturer has appealed the judgment entered pursuant to the
jury verdict but is not a party to this appeal.  
     For reversal of the summary judgment, appellant contends there
are disputed questions of fact.  Prior to addressing these
arguments, we consider two jurisdictional arguments raised by
appellee.  First, we address appellee's claim that appellant's
notice of appeal was untimely because a timely notice of appeal is
essential to this court's jurisdiction.  Binns v. Heck, 322 Ark.
277, 908 S.W.2d 328 (1995); LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980) (per curiam).  Second, we address appellee's claim that
the trial court lacked subject-matter jurisdiction to determine
whether appellee was required to provide workers' compensation
coverage to appellant.  When the trial court lacks subject-matter
jurisdiction, the appellate court also lacks jurisdiction.  Priest
v. Polk, 322 Ark. 673,  ___ S.W.2d ___ (1995).
                        NOTICE OF APPEAL
     On May 5, 1995, following the entry of the final judgment
pursuant to the jury's verdict, appellant filed a notice of appeal
from the order entered April 21, 1995, that granted summary
judgment to appellee.  Appellee contends this notice of appeal was
ineffective pursuant to Ark. R. App. P. Civ. 4(c) (1996) because it
was filed prior to the filing and denial of the manufacturer's
motion for judgment notwithstanding the verdict.  Rule 4(c) clearly
provides that when any party files a specified post-trial motion,
the time for appeal for all parties runs from the entry of the
order disposing of the motion or from the deemed-denied date. 
Thus, according to Rule 4(c), it may well be that because
appellant's notice of appeal was filed prior to the disposition of
the post-trial motion, it had no effect, and that appellant was
required to file a new notice of appeal within thirty days of the
trial court's disposition of the motion or the deemed-denied date. 
However, we cannot determine if that is the situation here because
the manufacturer's post-trial motion and the trial court's order,
if any, disposing thereof are not included as part of the record in
this case.  This court does not consider matters outside the
record.  Widmer v. Widmer, 288 Ark. 381, 705 S.W.2d 878 (1986).  On
the record before us appellant's notice of appeal was filed within
thirty days of the final judgment and was therefore timely.
           APPLICABILITY OF WORKERS' COMPENSATION LAW
     Should we decide the trial court erred in granting summary
judgment, appellee requests that we provide guidance to the trial
court on the matter of its "jurisdiction" to determine the
applicability of the Workers' Compensation Law, Ark. Code Ann.
 11-9-101 to -1001 (1987 and Supp. 1995), and the agricultural
farm labor exception to the definition of "employment" in section
11-9-102(12)(A)(iii).  
     In his second amended and substituted complaint, appellant
alleged appellee "was engaged in the business of selling,
delivering and spreading fertilizers and manure in agriculture in
Washington County, Arkansas."    Appellant also alleged that he was
hired by appellee to operate certain spreaders used in appellee's
business and that appellee was an "employer" as that term is
defined by the Workers' Compensation Law and was therefore bound to
provide compensation coverage to appellant.  Appellant alleged
further that appellee failed to provide such coverage. 
     Appellee denied that he was required to provide workers'
compensation coverage to appellant and moved to strike as
impertinent and immaterial the portions of appellant's complaint
alleging to the contrary.  Alternatively, appellee moved that
appellant be required to elect between the remedies of filing a
claim for worker's compensation with the Worker's Compensation
Commission or pursuing a cause of action for tort in circuit court. 
The trial court denied both motions, and after a hearing on the
question of whether it had jurisdiction to determine the
application of the Workers' Compensation Law to this case, entered
an order concluding its jurisdiction of the coverage question was
concurrent.  
     Appellee contends the Commission has exclusive jurisdiction to
determine the applicability of the Workers' Compensation Law and
cites two sources of secondary authority addressing the question of
whether the courts or the agency should determine the applicability
of worker's compensation laws to a given case.  Daniel Keating,
Employee Injury Cases:  Should Courts or Boards Decide Whether
Workers' Compensation Laws Apply?, 53 U. Chi. L. Rev. 258 (1986);
2A Arthur Larson, The Law of Workmen's Compensation  67.60 (1995). 
Appellant does not respond to this argument.  While both sources
cited by appellee suggest that exclusive jurisdiction in the agency
is superior to concurrent jurisdiction in the courts and agency,
our cases suggest to the contrary.  See, e.g., Lively v. Libbey
Memorial Physical Medical Center, Inc., 317 Ark. 5, 875 S.W.2d 507
(1994) (indicating that either the Workers' Compensation Commission
or the circuit court must determine the applicability of the
Workers' Compensation Law prior to the circuit court's granting of
summary judgment).  Therefore, we conclude the trial court did not
err in holding that it had concurrent jurisdiction to determine the
applicability of the Workers' Compensation Law.
     We observe, however, that although the trial court ruled it
had concurrent jurisdiction to determine the applicability of the
Workers' Compensation Law to this case, it never ruled whether the
Workers' Compensation Law did or did not apply to this case.  The
applicability issue was left unresolved below, and is therefore
waived on appeal.  Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860
(1995).
                     DISPUTED FACT QUESTIONS
     Appellant raises only one point of appeal in his brief, that
the trial court erred in granting summary judgment because there
existed genuine issues of material fact relating to negligence and
proximate causation.  Specifically, appellant contends there were
disputed facts relating to appellee's failure to provide safe
equipment as required by OSHA regulations, 29 C.F.R.  1928.57,
appellee's failure to instruct on the proper procedures for
cleaning and maintaining the spreader, appellee's failure to warn
of the dangers of the spreader, and whether appellant's injuries
were proximately caused by appellee's alleged negligence. 
      In Cash v. Lim, 322 Ark. 359, 908 S.W.2d 655 (1995), this
court summarized its standards for summary-judgment review:
          In these cases, we need only decide if the
          granting of summary judgment was appropriate
          based on whether the evidentiary items
          presented by the moving party in support of
          the motion left a material question of fact
          unanswered.  The burden of sustaining a motion
          for summary judgment is always the
          responsibility of the moving party.  All proof
          submitted must be viewed in a light most
          favorable to the party resisting the motion,
          and any doubts and inferences must be resolved
          against the moving party.  Our rule states,
          and we have acknowledged, that summary
          judgment is proper when a claiming party fails
          to show that there is a genuine issue as to a
          material fact and when the moving party is
          entitled to summary judgment as a matter of
          law. . . .
          Accordingly, it is the moving party who has the
     burden of presenting evidence to sustain a summary
     judgment, and all proof submitted must be viewed in the
     light most favorable to the opposing party.  It is
     further well-settled that once the moving party
     establishes a prima facie entitlement to summary judgment
     by affidavits or other supporting documents or
     depositions, the opposing party must meet proof with
     proof and demonstrate the existence of a material issue
     of fact.
  
Id. at 362, 908 S.W.2d  at 656-57 (citations omitted).

     Appellee moved for summary judgment without explanation,
simply stating there were no disputed issues of fact and claiming
entitlement to judgment as a matter of law.  Attached to the motion
was a portion of appellant's deposition, wherein appellant stated
that while the truck that housed the spreader was running, he
noticed some chicken litter in and around the sprockets, that he
thought the litter needed to be cleaned out, and that he stuck his
hand in the sprocket area and began cleaning it when one of the
sprockets caught his glove resulting in the injury to his hand. 
Appellant also stated that, because it was a "little bit safer," he
usually turned the truck off before he cleaned the sprocket area so
that the chain and sprocket would not be moving, but that he left
the truck running that day because there was still litter running
out of the back of the truck bed.  Also attached to appellee's
motion were his own affidavit and parts of his own deposition
wherein he stated that while driving appellant to the hospital,
appellant stated that he stuck his hand in the sprocket mechanism
and that "[i]t was dumb."
     Appellant's response to the motion included an affidavit from
Dr. Albert L. Mink, an agricultural engineer from Arkansas State
University.  Dr. Mink averred that he was a certified OSHA
instructor, that he had inspected the spreader that injured
appellant, and that 29 C.F.R.  1928.57 requires employers to
protect employees from inadvertently coming in contact with hazards
created by moving machinery parts on agricultural equipment, either
by location or by installing and using a guard.  Dr. Mink opined
that appellee was in violation of 29 C.F.R.  1928.57.  Also
attached to appellant's response was a portion of appellee's
deposition wherein appellee stated that he did not remember
instructing appellant on any cleaning procedures for the spreader
except to "[j]ust [k]eeping, you know, the catwalks clean is
basically what I told him."  Appellee stated that he did not give
any instructions on general maintenance and service of the
spreader.  Appellee stated that he received an operations manual
when he purchased the spreader but did not show it to his
employees, nor did he ever show his employees any type of written
instructions or warnings.  Appellee stated there was no warning on
the spreader about the danger of sticking a hand in the sprocket
area.
     The trial court granted summary judgment without explanation. 
The order stated simply that there was not sufficient evidence for
a trier of fact to find that appellee was negligent or that his
actions proximately caused appellant's injury.  Given the
depositions attached to the motion and response, we find it is
implicit in the trial court's order that its resolution of this
case was based solely on contributory negligence or comparative
fault.
     Under the comparative fault statute, there must be a
determination of proximate cause before any fault can be assessed
against a claiming party, and proximate cause is generally a
question for the jury.  Williams v. Mozark Fire Extinguisher Co.,
318 Ark. 792, 888 S.W.2d 303 (1994).  Proximate cause becomes a
question of law only if reasonable minds could not differ.  Id. 
Proximate cause is defined as "that which in a natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred."  Id. at 796, 888 S.W.2d  at 305.  Appellant presented
some evidence that appellee failed to instruct appellant on
operating and cleaning procedures for the spreader and that
appellee failed to take steps to protect appellant from inadvertent
contact with the sprocket mechanism as required by 29 C.F.R.
 1928.57.  Reasonable minds could therefore differ as to whether
appellee's or appellant's actions were the proximate cause in this
case.  In addition, violation of a safety statute is evidence of
negligence to be considered by a jury, provided the violation is
the proximate cause of the injury.  Thomson v. Littlefield, 319
Ark. 648, 893 S.W.2d 788 (1995).  Consequently, we conclude the
trial court invaded the province of the jury, at least by resolving
the proximate cause issue, and thereby erred in granting judgment
as a matter of law.  We therefore reverse the order granting
summary judgment and remand for a new trial.  
     BROWN, J., dissents.Associate Justice Robert L. Brown
February 12, 1996 *ADVREP6A*






ROBERT CRAIG,
                    APPELLANT,

V.

MIKE TRAYLOR,
                     APPELLEE,

95-789




APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
NO. CIV 92-108,
HON. KIM M. SMITH, JUDGE,




DISSENTING OPINION.






     What was done in this case by the plaintiff, Robert Craig, is
akin to cleaning sawdust from a chain saw while it is running or
grabbing the hot end of a branding iron.  Craig himself admitted to
Traylor that what he did was "dumb" and said he usually turned the
manure spreader off before attempting to clean the chain and small
sprocket area.  To actually get to the small sprocket and clean
where his hand got caught, Craig had to bend down and reach into
metal housing which covered the small sprocket.  There was no
surprise as to how the equipment operated.  Craig could see that. 
The sum and substance of this case comes down to whether the
employer had a duty to tell his employee to turn off the manure
spreader before attempting to clean it.  I believe that there was
no duty to tell the employee the obvious, and for that reason, I
would affirm.
     Whether a duty exists is always a question of law.  First
Commercial Trust Co. v. Lorcin Eng'g, 321 Ark. 210, 900 S.W.2d 202
(1995); Carroll Elec. Coop. Corp. v. Carlton, 319 Ark. 555, 892 S.W.2d 496 (1995); Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994).  We have stated that there is no duty to warn when the
danger is obvious.  Allen v. Lake Catherine Footwear, 246 Ark. 237,
437 S.W.2d 803 (1969) (flammable solvent).  We have recently said
that there is no duty to warn when the danger, or potential for
danger, is generally known and recognized.  First Commercial Trust
Co. v. Lorcin Eng'g, supra (firearm sales).  And we have affirmed
a summary judgment premised on the obvious danger rule pertaining
to the owner or occupier of land.  See Jenkins v. International
Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994).  The obvious danger
rule does not apply when an invitee is forced, as a practical
matter, to encounter the danger in order to perform his job.  See
Carton v. Missouri Pacific Railroad, 303 Ark. 568, 798 S.W.2d 674
(1990).  Nor should it apply when a farm employee is forced to
encounter danger on the job.
     We have held that a manufacturer's duty to warn could not be
decided as a matter of law.  See Hergeth, Inc. v. Green, 293 Ark.
119, 733 S.W.2d 409 (1987).  In Hergeth, a worker had his hand
amputated by a rotating beater in a flock-feeder machine, which was
housed behind a plexiglass window.  He had reached in behind the
window to retrieve some hangers.  The manufacturer raised the
argument that there was no duty to warn about work with a flock-
feeder machine because the danger was open and obvious.  We held
that the manufacturer had a duty to warn of inherent dangers and
that whether the danger was open and obvious was for the jury to
decide on proper instructions.
     Here, the issue is not the duty of the manufacturer to warn
about its equipment but the duty owed by the employer to warn about
an obvious danger.  There is clearly an issue of fact over whether
Traylor told Craig to clean the manure spreader.  But assuming he
did, does the duty to warn entail telling Craig to turn off the
spreader before he begins cleaning chicken litter from the area of
a sprocket and chain?  I do not think so.
     Were this merely a causation issue, I would agree with the
majority that a fact question is presented.  But it is not.  The
appropriate analysis is over the duty to warn, and because of our
workers' compensation laws there is little authority on this point
in the master/servant context.  I also disagree with the majority
opinion that the OSHA regulation (20 C.F.R.  1928.57) is
pertinent.  That regulation requires employers to protect employees
from inadvertently coming into contact with the hazardous
machinery.  Inadvertence is not at issue here.  Craig purposefully
reached into the covered area where the small sprocket and chain
were located.  Craig's various statements in depositions
substantiate that.
     Though the circuit court entered summary judgment due to no
genuine issues of material fact, I would affirm the court on the
basis that no duty existed to warn the employee under these facts
to turn off the chain and sprocket before cleaning that area.
     I respectfully dissent.