Crenshaw v. Ark. Warehouse, Inc.m
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Cite as 2010 Ark. App. 612
ARKANSAS COURT OF APPEALS
DIVISIONS I AND IV
No. CA09-1001
Opinion Delivered
CARL CRENSHAW
APPELLANT
V.
ARKANSAS WAREHOUSE, INC.
APPELLEE
September 22, 2010
APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT
[NO. CV-2004-314 II]
HONORABLE MICHAEL MEDLOCK,
JUDGE
AFFIRMED
JOHN MAUZY PITTMAN, Judge
Appellant, an independent roofing contractor, was hired by appellee to fix a leak in the
roof of appellee’s warehouse.
Both appellant and appellee were aware before work
commenced that there were skylights in the roof. Appellant climbed to the roof, stepped on
a skylight, fell through it to the warehouse floor, and was injured. Appellant sued appellee
for negligence, alleging that he was a business invitee, that the location of the skylights was
partially obscured by roofing tar, that the tarred skylights constituted an unusual hazard that
appellee had a duty to discover and warn him about before he began work on the roof, and
that he was injured because appellee breached this duty. Appellee moved for summary
judgment on the ground that it had no duty to warn appellant of hazards intrinsic to the work
and his roofing trade. The trial court granted that motion, and this appeal followed. We
affirm.
Cite as 2010 Ark. App. 612
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Lacy v. Flake & Kelley
Management, Inc., 366 Ark. 365, 235 S.W.3d 894 (2006). The issue of whether a duty exists
is always a question of law, not to be decided by a trier of fact. Id. If no duty of care is owed,
summary judgment is appropriate. Id.
Appellant argues that he was a business invitee and that, as such, appellee had a duty
to warn him before he commenced work that the skylights were partially obscured. It is true
that, as a workman entering the property to effect a repair at the request of the property
owner, appellant was a business invitee to whom appellee owed a duty to use ordinary care
to protect from harm. Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993). To recover
for the failure of a possessor of property to use ordinary care, the business invitee has to show
(1) that the premises were defective; (2) that the possessor created the defect, or that the defect
was apparent or by the exercise of ordinary care should have been apparent, so that a
reasonably prudent possessor would correct the defect or warn the invitee of it; and (3) that
the defect caused the injury. Id.
The record shows that, at the time of the incident, appellee had recently acquired the
warehouse and had not been warned of any roof defects by the prior owner. Subsequent to
purchasing the property, appellee became aware that the roof was leaking. Appellant heard
that appellee had a leak in its warehouse roof and contacted appellee to solicit the repair work.
Appellant admittedly knew that the warehouse roof was pierced by skylights; appellant was
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Cite as 2010 Ark. App. 612
inside the warehouse before he went onto the roof, and the skylights were clearly visible from
inside the warehouse because there was light shining through them. The skylights were,
however, difficult to see from atop the gray warehouse roof because the skylight edges were
partially obscured by “snow,” a gray roofing tar used to seal leaks. The exposed surfaces of
the skylights were likewise difficult to see because the green color had weathered, reducing
the contrast between the skylights and roof, and because the skylights were made of a
corrugated fiberglass that matched the corrugations of the metal roof.
We hold that the trial court properly determined that appellee had no duty to warn
the appellant roofer that the skylights were difficult to distinguish from the roof. Even
assuming that this condition constituted a defect, and that appellee should have inspected the
roof and warned appellant of this condition before he climbed atop the roof, such a warning
would have informed appellant of nothing that he did not know, or should have known, the
moment that he mounted the roof: the skylights, of which appellant was aware, and which
were clearly visible from inside the warehouse, were difficult to see from the perspective of
a person standing on the rooftop. Given his knowledge that there were in fact skylights on
the roof, the danger posed by this condition was an obvious one of which appellant should
have immediately been aware after ascending the roof. Appellant nevertheless walked a
considerable distance atop the roof before stepping through a skylight and falling.
The employer of an independent contractor has a duty to use ordinary care and warn
the contractor and his employees of any hidden dangers or unusually hazardous conditions,
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Cite as 2010 Ark. App. 612
but has no duty to warn of obvious hazards that are an integral part of the work that the
contractor has been hired to perform. Jackson v. Petit Jean Electric Co-op., 270 Ark. 506, 606
S.W.2d 66 (1980). In D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254
(2002), a case involving the duty owed by a warehouse owner to employees of a painting
contractor who fell through skylights in the warehouse roof, the supreme court held that the
skylights posed an obvious hazard or danger that was an integral part of the work that the
painting contractor was hired to perform. Although appellant argues that the present case
should be distinguished because, here, the skylights were difficult to locate, we do not agree
that this condition constituted a hidden danger of which appellee was duty-bound to warn
appellant. The skylights may have in fact been hidden to some extent, but the danger of
falling through them was an obvious one in light of the appellant roofer’s knowledge that
those skylights existed.
Affirmed.
GLADWIN, GRUBER, and BAKER, JJ., agree.
ROBBINS, J., concurs.
KINARD, J., dissents.
JOHN B. ROBBINS, Judge, concurring. I concur with the majority’s resolution of this
appeal, but my rationale differs. I agree with the majority that as a general proposition, a
landowner owes no duty to warn a professional as to the inherent dangers of that profession.
Jackson, supra; D.B. Griffin, supra. As I read appellant’s brief, he concedes that point. But, I
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Cite as 2010 Ark. App. 612
believe that this cause of action was properly dismissed on summary judgment because, even
if the hidden quality of the skylights set this apart from the facts in D.B. Griffin, there was no
evidence to support the proposition that appellee knew or should have known of this defect.
In Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993), our supreme court upheld
a summary judgment rendered in favor of a homeowner in a lawsuit filed by an injured
employee of a gas distributorship, acknowledged as a business invitee. Gann was called to
inspect the Parker home for gas leaks. While attempting to seal a gas leak discovered in the
stove, Gann suffered an electrical shock by coming in contact with an overhead electrical
ventilator. The trial court entered summary judgment for the Parkers, and on appeal, the
supreme court noted that there was no evidence of any prior incident to indicate that the
ventilator was dangerous and Gann admitted that he did not notice anything unusual about
the ventilator prior to being shocked. The supreme court held that there was no material
question of fact about the Parkers’ lack of negligence in failing to cure the defect or in failing
to warn Gann of it.
The same can be said in the present appeal. There is no material question of fact about
Warehouse’s lack of negligence in failing to cure the defect, argued to be hidden from the
professionals. There was likewise no material question of fact about Warehouse’s lack of
negligence in failing to warn of an unknown danger. Without some evidence to suggest that
Warehouse, which owned the building for approximately two weeks prior to injury, knew
or reasonably should have known of this seemingly impossible-to-locate defect, summary
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Cite as 2010 Ark. App. 612
judgment was appropriate. Compare Browning v. Browning, 319 Ark. 205, 890 S.W.2d 273
(1995).
For these reasons, I concur.
M. MICHAEL KINARD, Judge, dissenting. I respectfully dissent from the majority
opinion affirming the trial court’s grant of summary judgment in favor of appellee. The
majority holds that the danger posed by the skylights was an obvious danger of which appellee
was under no obligation to warn appellant. The majority opinion has focused upon the
existence of the skylights when the main issue in this case is the condition of the skylights,
specifically their appearance to business invitees who may be required to be on the roof. This
serves to distinguish this case from D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76
S.W.3d 254 (2002). Because appellant produced evidence to show that the condition of the
skylights constituted a hidden danger, I believe that the question of whether the skylights
posed an obvious or hidden danger is a question of fact for a jury to answer, and not one to
be determined by the trial court as a matter of law. A genuine issue of material fact still exists,
and, based upon our standard of review of summary judgments, I would reverse and remand.
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