Paladino-Nash, Inc. v. Southwestern Bell Telephone Company

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

PALADINO-NASH, INC.

APPELLANT

V.

SOUTHWESTERN BELL

TELEPHONE COMPANY

APPELLEE

CA 01-660

December 12, 2001

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT,

[CIV-98-493]

HONORABLE DAVID LEE

REYNOLDS, CIRCUIT JUDGE

REVERSED AND DISMISSED

This is a negligence case. Appellant, Paladino-Nash, Inc., had equipment, including a track hoe, at a work site in Conway, Arkansas. On August 31, 1997, appellee, Southwestern Bell, received an alarm notification that one of its fiber optic cables located on the work site had been cut. Appellee filed its complaint against appellant, alleging negligence in the failure to take adequate precautions to protect appellee's property, failure to use hand tools to make the excavation, failure to use ordinary care in the operation of heavy machinery, and failure to follow location markings of appellee's property at the site. The case was tried to the court, and the trial judge found in favor of appellee, awarding $5,982.49 in damages, $1,213.54 in pre-judgment interest, and $125.00 in costs, all of which was to bear interest at the rate of ten percent per annum until paid in full. We reverse and dismiss.

For its first point of appeal, appellant contends that "the trial court's finding of negligence is not supported by substantial evidence because (a) Paladino-Nash owed no duty to protect against criminal acts of third parties, (b) there is no proof of a breach of any applicable duty, and (c) there is no proof of proximate causation." Rule 52(a) of the Arkansas Rules of Civil Procedure provides in pertinent part: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Books-A-Million, Inc. v. Arkansas Painting & Specialities Co., 340 Ark. 467, 10 S.W.3d 857 (2000).

Moreover, to establish a prima facie case of negligence, a plaintiff must show that damages were sustained, that the defendant was negligent, and that such negligence was a proximate cause of the damages. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001).

We have defined negligence as:

the failure to do something which a reasonably careful person would do. A negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. While a party can establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation.

Wal-Mart Stores v. Londagin, 344 Ark. 26, 36, 37 S.W.3d 620, 626 (2001). Proximate cause is that which, in a natural and continuous sequence, unbroken by any efficient intervening causes, produces the injury, and without which the result would not have occurred. State Farm Mut. Auto. Ins. Co. v. Pharr, 305 Ark. 459, 808 S.W.2d 769 (1991). The law of negligence requires as an essential element that the plaintiff show that a duty of care was owed. Holloway v. Stuttgart Reg'l Med. Ctr., 62 Ark. App. 140, 970 S.W.2d 301 (1998). The question of whether a duty is owed is always a question of law and never one for the jury. Id.

Here, Phil Saffell, an employee of appellee for thirty-four years, testified that he was a customer service technician, which involves cable maintenance. He stated that on Sunday, August 31, 1997, he received a page that a cable had been cut between Little Rock and Conway. He explained that appellee has an alarm system that notifies them immediately when a cable has been cut. He arrived at the designated location and began looking for the damaged cable. He said that there were two other SWB employees at the location when he arrived, but none of appellant's employees were present. He said that there was a set of tracks from appellant's track hoe on the site, located approximately 100 feet from the severed cable, to the location of the damaged cable; that the damaged cable was found approximately thirty inches below ground level; that it was covered in soft, loose dirt when they arrived; and that they had to dig it up themselves. He said that the track hoe's bucket was stored on the ground, folded and set, as an operator would set it upon leaving the equipment.

Pete Gottsponer, superintendant for appellant, testified that he worked for appellant during the time in question; however, he explained that it was Labor Day weekend and that the last day they had a crew on the site was Friday. They did not work Saturday or Sunday. He stated that before Sunday, August 31, 1997, all of the utilities, sewer, water, storm drains, and electric conduits were finished, and that they had just been "grading out" for streets prior to the Labor Day weekend. He said that there was no work that needed to be done in the particular area where the cable was cut; and that he knew of no employees who would have worked on Saturday, August 30, Sunday, August 31, or Monday, September 1. He said that there was no evidence that the track hoe had been tampered with at that time. He said that it had been a week prior to the incident that the track-hoe operator, Darrell Hale, last used the equipment on that particular site.

Gottsponer further stated that the track hoe had doors, but that it did no good to lock the doors; that the unit had been vandalized at another site on a different job and the glass had been broken out. He said that he could not say for certain that the unit's keys had been removed on Friday and that all Link Belt track hoe keys fit every track hoe. He said that they made no effort to put an override on the key, and that as far as he knew no contractors did. He stated that they had finished the utility work about a week to two weeks earlier and that the track hoe was still there because they had not had a chance to move it.

Linda Ransom testified that she was a claims adjustor for SWB, and that the total amount of damage for the severed cable was $5,982.49. She stated that she had recordswhich showed the exact time that the damage took place, which was 9:58 a.m. on August 31.

In ruling on the case, the trial court made the following comments:

I'm going to grant a judgment for the plaintiff in the amount requested. You know, it is purely circumstantial that the track hoe involved is the one that caused the damage, but I don't think it's circumstantial at all that that track hoe or other equipment of Paladino-Nash exposed that cable and left it in a circumstance that it could be damaged not only by their employees, but by other employees and that's the basis on which I am finding. That other precautions should have been made to protect that exposed cable.

(Emphasis added.)

We conclude that the trial court's finding of fact that the cable was left exposed is clearly erroneous. There is no testimony in the briefs of either party to support it. In fact, appellee's own employee, Phil Saffell, testified that there was not a hole where the damage was; they had to dig it up themselves. Moreover, the trial court specifically stated that the basis upon which it was finding appellant negligent was the erroneous finding of fact that appellant exposed the cable and left it in a circumstance that it could be damaged.

Furthermore, the evidence did not establish that the cable was cut by one of appellant's employees in the course of doing work on the site. It could just as easily have been cut by a disgruntled employee of appellee or by a vandal. All that can be reasonably inferred is that the driver was a trained track-hoe operator.

Finally, foreseeability of a risk of harm is a crucial component of a negligence action. Here, the one act of vandalism about which there was testimony happened on another worksite and involved the breaking of glass on the track hoe, not its unauthorized use to dig a hole. Such evidence did not establish that the events here were reasonably foreseeable.

For its second point of appeal, appellant contends that appellee's motion to amend the pleadings to conform to the proof did not cure its failure of proof. Having already concluded that this case must be reversed and dismissed based upon appellant's first point of appeal, it is not necessary for us to address this point.

Reversed and dismissed.

Hart and Neal, JJ., agree.