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Electric company owed no duty of care to independent contractor’s injured employee

By Brandi O. Brown, J.D.

An employee of an independent contractor that performed utility-trenching services for a rural electric system was unable to revive his negligence claims against the electric company on appeal to the Arkansas Supreme Court. The divided state high court held that the electric company owed no duty to the worker to warn him of obvious dangers, to provide him with a reasonably safe work environment, or to act with reasonable care in the delivery of services. Moreover, even if the forced-to-encounter exception applied, there was no evidence that the worker was forced to encounter an energized transformer to do the work. Justices Baker, Hart, and Womack dissented (Duran v. Southwest Arkansas Electric Cooperative Corp., February 8, 2018, Kemp, J.).

Employee suffers shock. In 2009, the plaintiff suffered an electrical shock injury on the job. He was employed by an independent contractor that performed utility-trenching services for Southwest Arkansas Electric Cooperative Corporation. The injury occurred while he was working near or inside of an energized pad-mounted electrical transformer. His boss had used a key and special socket wrench provided by Southwest to remove the casing that covered the transformer, to allow the employee to push PVC conduit pipe up into the transformer. He suffered the injury while pushing the pipe inside the box. The work being performed for Southwest was covered by a service contract.

Files negligence suit. The employee filed a negligence lawsuit against Southwest, arguing that it had breached its duty of care toward him. In his deposition, he testified that he could tell when transformers were energized and knew that the transformer in question was energized at the time of the work. He also testified that his boss’s daughter had warned him that the transformer box could “get” him. Although he acknowledged he was aware that Southwest could shut off electricity to the transformer, he stated he had never been told that he was supposed to call Southwest to de-energize the transformer before it was opened.

Southwest filed a motion for summary judgment, which was granted. The trial court rejected the employee’s argument that Southwest owed the employee a duty and concluded that there were no genuine issues of material fact. The court of appeals affirmed and the employee’s petition for review by the state supreme court was granted.

Duty to warn. The employee argued that Southwest owed him several duties. Among those was the duty to warn him against hidden dangers or unusually hazardous conditions. While the general rule is that an employer of an independent contractor owes those duties to the contractor’s employees, the dangers in this case, the court observed, were obvious, not hidden. Under the principles articulated in previous Arkansas Supreme Court decisions, including Jackson v. Petit Jean Elec. Coop, Southwest did not have a duty to warn the employee of obvious hazards that constituted an integral part of the work the contractor had been hired to complete.

The employee in this case had been warned not to touch the transformers when they were energized. He testified that the transformer that caused his injury was “humming louder than [he had] ever heard it” on the day in question, a characteristic he had also testified was an indication that a transformer was energized. The contractor was hired to access non-energized transformers and to call Southwest when an energized transformer was involved. Therefore, an integral aspect of the job, the court concluded, was to safely navigate around that danger, and thus Southwest had no duty to warn the employee of it.

The employee also argued that Southwest was negligent in failing to supervise and control the work done by the independent contractor and that it should have ensured employees were properly trained. However, the court explained that Southwest did not have such a duty. As a general rule, employers do not have a duty to provide a reasonably safe work environment for an independent contractor’s employees.

Business invitee. Nor did Southwest violate any duty to the employee as a business invitee. Again, the fact that the danger was obvious was a determining factor—the duty owed to an invitee is satisfied so long as the danger is known or obvious to the invitee. The employee also was not forced to encounter the known or obvious risk, which provides an exception to that general rule, because the work could be safely performed without the employee coming into contact with the transformer. There was no question of material fact in that regard, the court explained.

The court also rejected the employee’s invitation to apply a duty of reasonable care in the delivery of services to employees of independent contractors, rather than only to members of the public.

Justice Baker’s dissent. Writing for the dissenting justices, Justice Baker found fault with the majority for failing to recognize there were material facts that remained in dispute. According to the dissent, the record demonstrated that the independent contractor was hired only to lay pipe, dig trenches, and pull wire through the pipes and not to work with energized transformers. In fact, Justice Baker explained, neither the employee nor his boss was qualified or trained to work with them. Moreover, although the independent contractor held keys to the boxes at that time, he was no longer allowed to open the transformers. Justice Baker pointed to testimony from Southwest employees that only qualified and trained individuals with proper equipment are supposed to open them and that the independent contractor and his employees were not qualified to do so. Finally, Justice Baker pointed to evidence that the employer was aware, despite this, that the contractor was accessing live wires. Justice Baker likewise concluded that material facts remained in dispute with regard to whether the employee was a business invitee to whom Southwest owed a duty.