One Bank, as Administrator of the Estate of Jose Silvestre Campos, Deceased v. I. F. Anderson Farms, Inc.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA05-855

February 22, 2006

ONE BANK AS ADMINISTRATOR

OF THE ESTATE OF AN APPEAL FROM THE LONOKE

JOSE SILVESTRE CAMPOS, COUNTY CIRCUIT COURT

DECEASED [CV-04-104]

APPELLANT

HONORABLE LANCE L. HANSHAW,

v. JUDGE

I. F. ANDERSON FARMS, INC.

APPELLEE AFFIRMED

Olly Neal, Judge

Appellant One Bank, as the administrator of the estate of Jose Silvestre Campos, appeals from an order of the Lonoke County Circuit Court that granted appellee I. F. Anderson Farms, Incorporated's (I. F. Anderson) motion for summary judgment. On appeal, One Bank asserts that the trial court erred when it granted I. F. Anderson's motion for summary judgment. We affirm.

I. F. Anderson is a family-owned minnow farm located in Lonoke County. As part of its daily operations, I. F. Anderson maintains several minnow ponds that are accessed via a "checker board" of levee roads. Jose Campos, now deceased, was a fifteen-year employee of I. F. Anderson.

On March 26, 2002, Mr. Campos was driving a truck to collect minnows, a task he had performed on numerous occasions. This task involved driving the truck to the pond to "seine" minnows, placing the minnows in the container on the back of the truck, delivering the minnows to the processing center, and returning to the pond to collect more minnows. After making a delivery to the processing center, Mr. Campos began a return trip to the pond to collect more minnows. When Mr. Campos failed to return after twenty minutes, his co-workers became concerned and went to look for him. They found his truck upside down in the ditch that was adjacent to the levee. The ditch contained approximately three feet of water. Mr. Campos was found inside the truck pinned under water. Mr. Campos sustained extensive injuries and was air-lifted to an area hospital. On November 28, 2002, after lingering in a coma, Mr. Campos died as a result of the injuries he sustained in the accident.

Thereafter, One Bank filed suit against I. F. Anderson, alleging that Mr. Campos was a business invitee and that he had died as a result of I. F. Anderson's negligence. One Bank specifically alleged that I. F. Anderson had: (1) failed to assure that Mr. Campos had reasonably safe equipment to work with; (2) failed to maintain its levee roads in a reasonably safe condition; (3) failed to remove obstructions or provide a safer route of travel; (4) failed to properly manage and supervise its employees; (5) failed to properly train its employees in the maintenance of a safe work environment; and (6) failed to properly train its employees in conducting their activities in a safe manner.

I. F. Anderson filed a motion for summary judgment, asserting that it had not breached the duty that it owed to Mr. Campos and that One Bank was unable to establish the cause of Mr. Campos's accident. In its response to the motion for summary judgment, One Bank alleged that a dirt road after a recent rain is a dangerous condition and that I. F. Anderson had forced Mr. Campos to encounter the dangerous condition in the performance of his job. At the conclusion of a hearing on the motion for summary judgment, the trial court granted I. F. Anderson's motion. The trial court found that One Bank was unable to establish that Mr. Campos's accident was the result of a dangerous condition. From that decision, One Bank now brings this appeal.

Summary judgment should only be granted 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. Van DeVeer v. RTJ, Inc., 81 Ark. App. 379, 101 S.W.3d 881 (2003). All proof must be viewed in the light most favorable to the nonmoving party, and any doubts must be resolved against the moving party. Id. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Lee v. Martin, 74 Ark. App. 193, 45 S.W.3d 860 (2001). Once a moving party establishes a prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Id.

An employer owes an affirmative duty to furnish a safe place for an employee to work. Wenger v. Kiech, 273 Ark. 369, 616 S.W.2d 714 (1981). The employer must warn his employee about perils that the latter might, through ignorance or inexperience, fail to comprehend. Cockerham v. Barnes, 230 Ark. 197, 321 S.W.2d 385 (1959). However, an employee assumes the ordinary risks incident to his job, which are both open and obvious. Baxter v. Grobmyer Bros. Constr. Co., 275 Ark. 400, 631 S.W.2d 265 (1982). The employer's duty is measured in light of his right to assume that the employee will exercise some care for his safety. Norris v. Davies, 251 Ark. 100, 470 S.W.2d 937 (1971). An employer is presumed to have performed his duty, and the employee cannot recover for his injuries unless he shows that the employer was guilty of negligence and that this negligence caused the injury. Id.

Negligence is the failure to do something which a reasonably careful person would do. Sanford v. Ziegler, 312 Ark. 524, 851 S.W.2d 418 (1993). In order to prove negligence, there must be a failure to exercise proper care in the performance of a legal duty that the defendant owed the plaintiff under the circumstances surrounding them. Costner v. Adams,82 Ark. App. 148, 121 S.W.3d 164 (2003). A defendant is under no duty to guard against risks it cannot reasonably foresee. Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003). Proof of an accident, with nothing more, is not sufficient to make out a claim for negligence. Id.

Mr. Campos was a business invitee. A business invitee is invited to enter or remain on the property for a purpose directly or indirectly connected with the business dealings of the possessor of the property. Slavin v. Plumbers & Steamfitters Local 29, Ark. App. , S.W.3d (Apr. 27, 2005). A property owner has a duty to exercise ordinary care to maintain his premises in a reasonably safe condition for the benefit of an invitee. Conagra v. Strother, 68 Ark. App. 120, 5 S.W.3d 69 (1999). The property owner is liable if he has superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Slavin, supra. However, the landowner is not liable to an invitee for physical harm caused by any activity or condition on the land whose danger is known or obvious to the invitee, unless the landowner should anticipate the harm despite such knowledge or obviousness. Van DeVeer, supra.

The depositions submitted to the trial court revealed the following. Jeronima Campos, Mr. Campos's wife, testified that she was never told how the accident occurred and that the only thing she knew was that her husband's truck overturned. James Neal Anderson, I. F. Anderson's owner, described Mr. Campos as a good driver. He said that it was possible that it had rained on the day before Mr. Campos's accident. Mr. Anderson testified that the levee roads are graveled. He admitted that occasionally a road will develop a slick spot. He stated that the road on which Mr. Campos was traveling came to a "T" and that Mr. Campos ran straight off the road into the levee. He said that at the scene of the accident there were no discernable skid marks or sliding marks. He also said that there was no evidence indicating that Mr. Campos tried to hit his brakes.

Upon viewing the evidence in a light most favorable to One Bank, we are unable to say that a material issue of fact remained. There is no evidence that definitively establishes the cause of Mr. Campos's accident. Without evidence as to the cause of the accident, we are unable to establish that I.F. Anderson breached the duty that it owed Mr. Campos. Therefore, we affirm the trial court's grant of summary judgment. Affirmed.

Hart and Bird, JJ., agree.