Nigel Merez and Ormond Marshall v. Squire Court Limited Partnership

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISIONS III and IV

NIGEL MEREZ and ORMOND

MARSHALL

APPELLANTS

V.

SQUIRE COURT LIMITED

PARTNERSHIP

APPELLEE

CA 02-82

DECEMBER 18, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

[NO. CIV 2000-8483]

HONORABLE JOHN WARD, JUDGE

SUBSTITUTED OPINION UPON

GRANT OF PETITION FOR

REHEARING; REVERSED AND

REMANDED

On October 2, 2002, we issued an opinion in which we concluded sua sponte that, pursuant to the exclusive remedy provision of the Workers' Compensation Act, codified at Ark. Code Ann. § 11-9-105(a) (Repl. 2002), the circuit court lacked jurisdiction to consider the complaint, and we, consequently, vacated and remanded with instructions to dismiss. This conclusion was based on our view that appellee was the prime contractor of the project. Appellants timely filed a petition for rehearing, pointing out that the "prime contractor" exclusion in section 11-9-105(a) had been declared unconstitutional in Stapleton v. M.D. Limbaugh Construction Co., 333 Ark. 381, 969 S.W.2d 648 (1998). The petition warrants our reconsideration of the case. We conclude that there are material questions of fact remaining unanswered and therefore reverse and remand for trial.

This action was brought by appellants Nigel Merez and Ormond Marshall against appellee Squire Court Limited Partnership for injuries suffered by appellants, who were employed by Carson Equities, LLC (not a party) (Carson), the contractor hired to renovate two apartment buildings owned by appellee. The Pulaski County Circuit Court entered summary judgment for the building owner, and the employees now appeal, contending that the entry of the summary judgment was erroneous. Appellee Squire Court Limited Partnership owns two apartment buildings in Pulaski County, Squire Court One and Squire Court Two (also known as Gra-Bec Apartments). Henry Mann is the president of Squire Court Partners, Inc., the general partner of appellee. His son, Michael Mann, owned and operated Carson. Carson was hired in July 1997 to renovate both apartment complexes. On May 28, 1998, a stairway in one of the buildings in Squire Court Two collapsed, injuring appellants. Appellants filed suit, alleging that appellee was negligent in failing to warn of dangerous conditions at the complexes. Appellants further alleged that, because of the control and supervision of the project exercised by Henry Mann, appellee was, in effect, the general contractor and therefore responsible for any negligence on the part of Carson. Appellee denied the allegations and asserted that Carson was the general contractor engaged to perform the renovation project. Appellee then moved for summary judgment, contending that it did not owe any duty to appellants because Carson was an independent contractor. Appellant Marshall received workers' compensation benefits from Carson's carrier.1 Thetrial court granted summary judgment for appellee without stating its reasons. This appeal followed.

The rules regarding review of summary judgments are clear. Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. City of Lowell v. City of Rogers, 345 Ark. 33, 43 S.W.3d 742 (2001). The purpose of summary judgment is not to try the issues but to determine whether there are any issues to be tried. BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001); Flentje v. First Nat'l Bank, 340 Ark. 563, 11 S.W.3d 531 (2000). Thus, summary judgment is not proper, where, although the actual facts are not in dispute, they may result in ··²7040-9²····²7040-9²··differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712, reh'g denied, 332 Ark. 189, 961 S.W.2d 712 (1998) (citing Ark. R. Civ. P. 56(c); Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991)). See also City of Lowell, 345 Ark. 33, 43 S.W.3d 742; Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000).

The law of negligence requires as an essential element that the plaintiff show that a duty of care was owed. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). The question of the duty owed to the plaintiff alleging negligence is always one of law and never one for the jury. D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254 (2002) ("Griffin II"); D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999) ("Griffin I"); DeHart v. Wal-Mart Stores, 328 Ark. 579, 946 S.W.2d 647 (1997); Lawhon Farm Supply, Inc. v. Hayes, 316 Ark. 69, 870 S.W.2d 729 (1994); Catlett v. Stewart,304 Ark. 637, 804 S.W.2d 699 (1991); Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). If the court finds that no duty of care is owed, the negligence count is decided as a matter of law. Griffin I, supra; Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996). Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for another. Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997).

It is generally recognized that an employer of an independent contractor owes a common-law duty to the contractor's employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions. Griffin I, supra; Jackson v. Petit Jean Electric Co-op., 270 Ark. 506, 606 S.W.2d 66 (1980). Furthermore, the duty of an employer of an independent contractor to use ordinary care or to warn of latent dangers does not contemplate a duty to warn of obvious hazards ··²SDU_33²····²SDU_33²··which are an integral part of the work the contractor was hired to perform. Griffin I, supra. An owner may avoid liability by providing timely notice of a latent dangerous condition of which he is, or reasonably should be, aware. Griffin I, supra.

The obvious danger rule does not bar recovery when the invitee is forced, as a practical matter, to encounter that danger in order to perform his job. Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Carton v. Missouri-Pac. R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990). A property owner owes a business invitee a duty to use ordinary care to maintain the premises in a reasonably safe condition even though the invitee was forced, as a practical matter, to encounter a known risk in order to perform his job. Carton, supra.

Appellants argue that fact questions exist as to whether the repair of the staircase was an integral part of the job for which Carson was hired to perform as well as whether appellants were, as a practical matter, forced to use the staircase in the performance of their duties, precluding summary judgment. We agree.

The evidence shows that Henry Mann and Michael Mann were involved with both appellee and Carson. Henry Mann was also involved with the contract for repairing the stairs. Jerry Phillips, of Riverstate, Inc., the company that replaced the stairs, testified by deposition that he dealt exclusively with Henry Mann in New York about the matter. Invoices were sent by Riverstate to "Carson Equities-Squire Court II Apartments" in care of Henry Mann in New York. Michael Mann's testimony was contradictory in that he testified that he had discussions with Riverstate concerning replacement of the stairs and that he did not recall having any discussions with Riverstate. Colvin Yearwood, a foreman for Carson, testified that it was not part of his job to replace the stairs but that it was part of the overall project.

Michael Mann testified that he personally warned appellants that the stairs were dangerous and that appellants should not have been using them. Appellant Marshall testified that he was so concerned about the stairs falling that he would not walk under them. Appellant Merez stated that he knew the stairs were unsafe, that they rattled and shook, and that "they knew about it." There was also testimony that Henry Mann personally walked around and inspected the premises during the renovation. We find this evidence to be sufficient to raise the question of whether repair of the stairs was an integral part of Carson'sproject and also whether appellants were forced to work around the stairs in order to perform their jobs.

Reversed and remanded.

Stroud, C.J., and Crabtree and Baker, JJ., agree.

Pittman and Bird, JJ., dissent.

Sam Bird, Judge, dissenting. I dissent from the substituted opinion the majority has issued upon granting the petition for rehearing because I believe that it fails to address the issue of whether the Pulaski County Circuit Court or the Workers' Compensation Commission had jurisdiction to consider appellants' claims. Notwithstanding the erroneous basis of the conclusion in our October 2, 2002 opinion, that the circuit court lacked jurisdiction to consider appellants' complaint, I remain convinced that the authority to determine the facts bearing on the issue of where jurisdiction lies is within the exclusive province of the Workers' Compensation Commission.

In VanWagoner v. Beverly Enterprises, 334 Ark. 12, 970 S.W.2d 810 (1998), the claimant was employed by Beverly when she slipped and fell on a rug at her place of employment. She filed a claim for benefits under the Workers' Compensation Act, and Beverly denied the claim. A hearing was scheduled before the Workers' Compensation Commission on the issue of compensability, but claimant cancelled the hearing and filed suit against Beverly in circuit court. The circuit court dismissed the suit with prejudice, and claimant appealed. The supreme court affirmed the circuit court's ruling on the ground that the Workers' Compensation Commission has exclusive jurisdiction to determine the applicability of the workers' compensation laws. The court stated:

We hold that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort.

Id. at 16, 970 S.W.2d at 812 (citations omitted).

In the present case, accepting as true appellants' allegations that appellee, through Henry Mann, exercised control over Carson and the project, I view the evidence as raising a question of whether appellee was a joint venturer in the project, and, if so, whether section 11-9-105 would bring the appellee within the coverage. There is no dispute that the injury occurred on appellee's premises. Nor is it disputed that appellant Marshall has already received workers' compensation benefits for his injury and that such benefits were also available to appellant Merez. Furthermore, it is not alleged by appellants that their injuries resulted from an intentional tort by appellee. Accordingly, pursuant to VanWagoner, supra, the Workers' Compensation Commission has exclusive authority to determine the facts that establish jurisdiction in this matter. See also WENCO Franchise Mgmt., Inc. v. Chamness, 341 Ark. 86, 13 S.W.3d 903 (2000).

I am authorized to state that Judge Pittman joins me in this dissenting opinion.

1 There is no indication in the record whether appellant Merez received any workers' compensation benefits or the amount of any such benefits.