United States Court of Appeals

For the Eighth Circuit

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No. 15-3597

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Kenneth Stewart, Jr.

lllllllllllllllllllll Plaintiff - Appellant

v.

Nucor Corporation

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Arkansas - Jonesboro

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 Submitted: April 12, 2016

 Filed: July 15, 2016

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Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.

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BEAM, Circuit Judge.

Kenneth Stewart, Jr. appeals the district court's adverse grant of summary 1

judgment in his negligence suit against Nucor Corporation for injuries sustained

while working at Nucor's steel mill. We affirm.

The Honorable Kristine G. Baker, United States DistrictJudge for the Eastern 1

District of Arkansas.
I. BACKGROUND

Vesuvius USA contracted with Nucor to provide it with personnel to work at

Nucor's Blytheville, Arkansas, steel mill, and it hired Stewart, a welder, for this

purpose. During training, Stewart signed a waiver of claims for injuries covered by

workers' compensation against Vesuvius's contractees (the "Third-Party Waiver" or

TPW). The TPW read:

WAIVER OF CLAIMS AND SUITS AGAINST THIRD-PARTIES

RELATING TO INJURIES COVERED BY WORKERS'

COMPENSATION

As a condition of my {employment} {continued employment}

with Vesuvius and in recognition of the fact that any work-related

injuries that might be sustained by me or covered by state Workers'

Compensation laws, I hereby waive, to the extent permitted by law, any

right I might have to make claims or bring suits against the following

classes or categories of persons or entities arising out of or as a result of

injuries sustained by me, which are covered under workers'

compensation laws:

(a) Any persons or entities having ownership, possession, or

control of or over the premises or work sites at which my

work will be performed;

(b) Any persons or entities acting as architects, engineers, or

construction managers with respect to work being

performed or to be performed at the premises or work sites

at which my work will be performed;

(c) Any persons or entities performing work at, on, or about

the premises or work sites at which my work will be

performed;

(d) Any contractors or subcontractors performing any portion

of the work at or about the premises or work sites at which

my work will be performed;

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(e) Any persons or entities that Ken Stewart may have

contractual or implied obligations to indemnify arising out

of any such injuries; and

(f) Any agents, servants, or employees of any of the persons or

entities in the classes or categories set out in (a) through

(e), above.

The underlined portions above were filled in by hand by Stewart.

On the day of training, Stewart firstspent ten to twelve hours watching training

videos at two different locations. He was then taken to Nucor, given a stack of

paperwork that included the TPW, and sent into a room with a video player. The

trainer instructed Stewart to play some videos and answer questions about them. (The

paperwork included quizzes pertaining to the videos.) Stewart was under the

impression that he had to pass the quizzes in order to be hired. While watching the

videos, Stewart also completed the other paperwork, including the TPW. Stewart

testified that the trainer was preparing to leave for the day and apparently wanted to

complete the training quickly, and as a result Stewart felt rushed to complete the

paperwork.

Later, while working at Nucor's steel mill, Stewart was injured, for which he

received workers' compensation benefits. He sued Nucor for negligence, and Nucor

moved for summary judgment on the basis of the TPW. The district court granted the

motion, finding that the TPW's language and the circumstances of its execution met

the standard for enforcement of exculpatory contracts under Arkansas law and that

the agreement was not unconscionable. Stewart appeals.

II. DISCUSSION

This is a diversity action occurring in Arkansas, and so we apply Arkansas law. 

"We review de novo the district court's grant of summary judgment, viewing the

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evidence in the light most favorable to the nonmoving party," Robinson v. Terex

Corp., 439 F.3d 465, 467 (8th Cir. 2006), as well asits interpretation of Arkansas law. 

Id. "Summary judgment is proper if there are no disputed issues of material fact and

the moving party is entitled to judgment as a matter of law." Id. The district court

considered two issuesin granting Nucor's motion: whether the TPWwas enforceable

and whether it was unconscionable.

A. Enforceability

"An exculpatory contract is one in which a party seeks to absolve himself in

advance for the consequences of his own negligence." Finagin v. Ark. Dev. Fin.

Auth., 139 S.W.3d 797, 806 (Ark. 2003). Exculpatory contracts are disfavored by the

Arkansas Supreme Court, Plant v. Wilbur, 47 S.W.3d 889, 893 (Ark. 2001), and as

such must clearly set out the liability to be avoided and are to be strictly construed

against the drafter. Finagin, 139 S.W.3d at 806. They may be enforced "(1) when the

party is knowledgeable of the potential liability that is released; (2) when the party

is benefiting from the activity which may lead to the potential liability that is

released; and (3) when the contract that contains the clause was fairly entered into." 

Id. at 808. The Arkansas Supreme Court has followed our circuit in adopting a "total

transaction" approach to exculpatory contracts, ascertaining the intent of the parties

according to both the language of the contract as well as the circumstances of its

execution. Plant, 47 S.W.3d at 893 (citing Haines v. St. Charles Speedway, Inc., 874

F.2d 572, 575 (8th Cir. 1989)). 

Stewart challenges elements (1) and (3), claiming that the circumstances

surrounding his signing the TPW–being given the TPW at the end of a long day of

training, feeling compelled to pay attention to videos he was being quizzed on,

believing he needed to pass those quizzes to be hired, and feeling rushed by the

trainer–create a genuine dispute of material fact asto whether he was knowledgeable

of the potential liability he was waiving and whether he fairly entered into the

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contract. Nucor points out that Stewart admitted in testimony that he was given an

opportunity to review the contract. It is undisputed he has a high school diploma and

the ability to read, and there is no evidence Stewart asked about the meaning of the

TPW or the consequences of not signing it.

Stewart has not created a genuine issue of material fact as to the enforceability

of the TPW. The parties stipulated that he had the opportunity to read the TPW, that

he did not ask the trainer any questions concerning the meaning of the TPW, and that

he had the ability to read and understand the contract. Stewart might have felt tired

from the long day of training, distracted by the videos, and rushed by the trainer. But

these facts alone do not amount to conditions sufficient to render the TPW

unenforceable. This isso particularly because Stewart wasindisputably afforded the

opportunity, which he failed to avail himself of, to inquire about the meaning of the

TPW. The language of the TPW is not so overly complex or riddled with legal jargon

as to call into question Stewart's ability to understand it. "Ultimately, [Stewart] is

bound to know the contents of the contract that he signed." Jordan v. Diamond

Equip. & Supply Co., 207 S.W.3d 525, 532 (Ark. 2005). We affirm the district court

as to enforceability of the TPW.

B. Unconscionability

In assessing whether a contract provision is unconscionable, Arkansas courts

again look to the totality of the circumstances, considering "whether there is a gross

inequality of bargaining power between the parties and whether the aggrieved party

was made aware of and comprehended the provision in question." Jordan, 207

S.W.3d at 535. Applying Arkansas law, we have also considered "whether the

provision is commercially reasonable 'according to the mores and business practices

of the time and place.'" Geldermann & Co., Inc. v. Land Processing, Inc., 527 F.2d

571, 576 (8th Cir. 1975) (quoting 1 Arthur L. Corbin, Contracts § 128, at 551 (1963)).

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Stewart presents the same arguments here that he does for the enforceability

issue. Nucor points to an affidavit it submitted from the CEO of an industrial

construction and maintenance contractor that has an office in Blytheville, stating the

company hired six welders during the relevant time period. Nucor argues this shows

the availability of other work Stewart could have sought and thus that there was not

a gross inequality in bargaining power. The district court noted that neither party

presented record evidence of relevant industry practices but that Nucor cited to cases

recognizing the validity of such agreements under comparable circumstances. See,

e.g., Edgin v. Entergy Operations, Inc., 961 S.W.2d 724 (Ark. 1998).

Stewart has not created a genuine issue of material fact as to the

unconscionability of the TPW. He does not present any evidence rebutting Nucor's

affidavit showing the availability of other work in the region at that time. It is

undisputed he had the opportunity to read and understand the TPW. Reviewing the

language, it is not especially complicated or difficult to understand. Although there

is no record evidence of industry practice, Edgin addressed precisely the same sort

of contract at issue here–waiver of claims by an employee against the employer's

clients for injuries that can be claimed under workers' compensation–and upheld the

application of the agreement to foreclose the plaintiff-employee's negligence action. 

Additionally, there is no evidence presented by Stewart of fraud, duress,

misrepresentation, or any other inequitable conduct on the part of Vesuvius or Nucor. 

We also affirm the district court on the unconscionability issue.

III. CONCLUSION

For the foregoing reasons we affirm.

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