United States Court of Appeals

For the Eighth Circuit

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No. 13-1751

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Eugene Chew, Jr.

lllllllllllllllllllll Plaintiff

David Mark Duncan; Nancy Duncan, wife of David Mark Duncan

lllllllllllllllllllll Plaintiffs - Appellants

Daniel Chase Hoskins; Whitney Dale Hoskins

lllllllllllllllllllll Plaintiffs

v.

American Greetings Corporation

lllllllllllllllllllll Defendant - Appellee

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No. 13-1966

___________________________

Eugene Chew, Jr.

lllllllllllllllllllll Plaintiff - Appellant

David Mark Duncan; Nancy Duncan, wife of David Mark Duncan

lllllllllllllllllllll Plaintiffs
Daniel Chase Hoskins; Whitney Dale Hoskins

lllllllllllllllllllll Plaintiffs - Appellants

v.

American Greetings 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: January 13, 2014

 Filed: June 12, 2014

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Before WOLLMAN and SHEPHERD, Circuit Judges, and WEBBER, District 1

Judge.

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SHEPHERD, Circuit Judge.

David Duncan, Eugene Chew, and Daniel Hoskins (the plaintiffs), employees

of Osceola Municipal Light & Power (OMLP), brought a negligence suit against

American Greetings Corporation. The district court granted American Greetings’s 2

motion for summary judgment, and the plaintiffs appealed. We affirm.

The Honorable E. Richard Webber, Senior United States DistrictJudge for the

1

Eastern District of Missouri, sitting by designation.

The Honorable Brian S. Miller, Chief United States District Judge for the

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Eastern District of Arkansas.

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I.

On September 23, 2009, an American Greetings employee noticed that a

stinger outside American Greetings’s Osceola, Arkansas facility was loose and

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notified the facility’s maintenance supervisor of the problem. American Greetings’s

maintenance supervisor notified Billy Griffin, OMLP’s electrical manager. Griffin

then called David Duncan and directed Duncan and his crew to meet him at the

American Greetings facility. When Duncan and his crew arrived, they were met by

Griffin and Lance Collins, who was American Greetings’s maintenance manager and

was also a trained electrician. Griffin and Collins were discussing why American

Greetings’s plant had not lost power because of the loose stinger.

Griffin instructed Duncan to retrieve a voltmeter from his truck so the crew

could read the transformer’s voltage. Griffin returned with a voltmeter that had a

safety rating of only 1,000 volts. When Griffin approached the transformer, the

transformer’s exterior and interior doors were open. The transformer was designed 4

with two doors, an outer, exterior door and an inner, flash-guard barrier door. The

manufacturer nameplate, which indicated the transformer’s voltage,was affixed to the

inside of the exterior door. The nameplate indicated that the incoming, or primary,

voltage was 13,800 volts and the outgoing, or secondary, voltage, was 4,160 volts. 

The inner door was painted red and warned “danger high voltage.” Because the

transformer doors were open, the plaintiffs were unable to read the manufacturer’s

nameplate when they returned with the voltmeter. After returning, Duncan asked

In layman’s terms, a stinger is an electrical line running from a utility pole to 3

a transformer. The transformer steps down high voltage electricity to low voltage

electricity.

The parties disagree as to who opened the doors, though the parties agree that 4

a specialized socket wrench was needed to open the inner door.

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Griffin and Collins if they were going to turn off the flow of electricity to the

transformer. Collins shook his head no, and Duncan proceeded to approach the

secondary-side ofthe transformer with the inadequate voltmeter. By approaching the

4,160-volt transformer with a 1,000-volt voltmeter, Duncan created an arc flash that

injured the plaintiffs. The plaintiffs knew that the transformer was energized and had

been trained to measure voltage. Despite knowledge of the potential risks involved,

Duncan incorrectly believed that the transformer he approached had a total voltage

of 480 volts because other transformers in the area had the lower level voltage.

The plaintiffs filed this diversity suit against American Greetingsin the United

States District Court for the Eastern District of Arkansas. See 28 U.S.C. § 1332. The

plaintiffs alleged that American Greetings’s negligence, in particular, American

Greetings’s failure to properly label its electricalsystemand warn the plaintiffs of the

unique nature of its transformers, caused Duncan’s incorrect assumptions about the

secondary transformer’s voltage. American Greetingsresponded that pursuant to the

Arkansas Supreme Court’s holding in Jackson v. Petit Jean Electric Co-op., 606

S.W.2d 66 (Ark. 1980), it owed no duty to warn the plaintiffs, who were experienced

electrical contractors, of the dangers of electricity and the risk of arc flash when

improper equipment is used. The district court agreed with American Greetings that

Petit Jean controlled and granted American Greetings’s summary judgment motion. 

The plaintiffs appealed the district court’s final judgment. See 28 U.S.C. § 1291.

II.

A.

We review the district court’s grant ofsummary judgment and its interpretation

of state law de novo, considering the facts in the light most favorable to the

nonmoving party. See Raines v. Safeco Ins. Co., 637 F.3d 872, 874-85 (8th Cir.

2011). We will affirm the district court’s grant of summary judgment if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). Because we are a federal court sitting in

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diversity, we apply the substantive law of the forum state. See E-Shops Corp. v. U.S.

Bank Nat’l Ass’n, 678 F.3d 659, 663 (8th Cir. 2012). Here, all parties agree that

Arkansas law applies to this case. As such, “[w]e are bound by decisions of the

Arkansas Supreme Court as to the meaning of Arkansas law.” See Curtis Lumber

Co., Inc. v. La. Pac. Corp., 618 F.3d 762, 771 (8th Cir. 2010). When the Arkansas

Supreme Court has not addressed an issue, we must predict what rule the court would

adopt and may look to the Arkansas Court of Appeals for guidance in this task. See

id.; Doe v. Baxter Healthcare Corp., 380 F.3d 399, 407 (8th Cir. 2004).

“Under Arkansas law, in order to prevail on a claim of negligence, the plaintiff

must prove [1] that the defendant owed a duty to the plaintiff, [2] that the defendant

breached that duty, and [3] that the breach was the proximate cause of the plaintiff’s

injuries.” See Yanmar Co. v. Slater, 386 S.W.3d 439, 449 (Ark. 2012). “[T]he

question of what duty, if any, is owed a plaintiff alleging negligence is always a

question of law and never one for the jury.” Id.; D.B. Griffin Warehouse, Inc. v.

Sanders (Griffin I), 986 S.W.2d 836, 839-41 (Ark. 1999). If, as a matter of law, the

defendant owed the plaintiff no duty, then “the negligence count is decided as a

matter of law, and summary judgment . . . is appropriate.” Griffin I, 986 S.W.2d at

840. Whether the defendant breached its duty to the plaintiff is a question of fact for

the jury to resolve. See Catlett v. Stewart, 804 S.W.2d 699, 702 (Ark. 1991).

The characteristics of the parties and the circumstances of their encounter may

trigger a unique duty that imposes a distinct standard of care that departs from the

typical standard of ordinary care. See Kowalski v. Rose Drugs of Dardanelle, Inc.,

378 S.W.3d 109, 114-15 (Ark. 2011); Clark v. Transcon. Ins. Co., 197 S.W.3d 449,

453-55 (Ark. 2004). One instance of a unique standard of care, recognized by the

Arkansas Supreme Court in Petit Jean, applies to an “employer of an independent

contractor,” who “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.” See 606 S.W.2d at 68. These duties, however, which are

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analogous to those a premises owner owes a business invitee, do “not contemplate a

duty to warn of obvious hazards which are an integral part of the work the contractor

was hired to perform.” Id.; Gordon v. Matson, 439 S.W.2d 627, 629 (Ark. 1969). 

Finally, the Petit Jean court recognized that when the employer of the independent

contractor exercises control over the contractor, the employer of the independent

contractor must exercise that control with reasonable care. See PetitJean Electric Coop., 606 S.W.2d at 68-69; see also Williams v. Nucor-Yamato Steel Co., 886 S.W.2d

586, 587-88 (Ark. 1994).

Arkansas courts have applied the principles articulated in PetitJean to a variety

of circumstances. In Petit Jean, the Arkansas Supreme Court reasoned that an

electrical cooperative that hired a construction company to rebuild electrical lines had

no duty “to isolate or de-energize its lines or to warn employees of [the] electrical

contractor that the work as contracted for would be dangerous if not done properly.” 

Petit Jean Electric Co-op., 606 S.W.2d at 68. The Arkansas Supreme Court

reaffirmed its Petit Jean holding in Stoltze, rejecting the plaintiff’s attempt to

distinguish PetitJean by claiming that he was not qualified to work around energized

electrical lines. See Stoltze v. Ark. Valley Elec. Co-op., 127 S.W.3d 466, 476-77

(Ark. 2003). The court reasoned that the plaintiff’s employer, an independent

contractor hired by the defendant, retained the responsibility to inform the plaintiff

of the dangers involved with the plaintiff’s line of work. See id. Arkansas courts

have applied the Petit Jean standard to risks other than those associated with

electricity, including the risk that a roofer would fall through a skylight, see D.B.

Griffin Warehouse, Inc. v. Sanders (Griffin II), 76 S.W.3d 254, 261-62 (Ark. 2002);

Crenshaw v. Ark. Warehouse, Inc., 379 S.W.3d 515, 516-17 (Ark. Ct. App. 2010),

and the risk that a commercial painter would be hit by a car when painting an entrance

to a residential subdivision, see Culhane v. Oxford Ridge, LLC, 362 S.W.3d 325,

327, 329-30 (Ark. Ct. App. 2009).

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The plaintiffs contend that the standards articulated in Petit Jean do not apply

to this appeal because (1) OMLP had no formal, written contract with American

Greetings and (2) Federal and Arkansas regulations have imposed an alternative

standard of care on American Greetings. We disagree.

First, Petit Jean applies to this case despite the absence of a written contract. 

The plaintiffs attempt to distinguish this case from Petit Jean and other independent

contractor cases because those cases have typically made reference to written

contracts. See e.g., Stoltze, 127 S.W.3d at 476-77; Petit Jean Electric Co-op., 606

S.W.2d at 68. The contracts’ significance in these cases, however, is that they may

impose special duties upon a defendant, see Petit Jean Electric Co-op., 606 S.W.2d

at 68-69, or potentially reflect a defendant’s “right of control” over the contractor, see

Stoltze, 127 S.W.3d at 473-74. Some cases, such as Griffin I, 986 S.W.2d at 838-40,

have omitted any discussion of the written contract altogether. The written contracts

may memorialize or clarify the employer-independent contractor relationship central

to Petit Jean, but such relationships may also arise through conduct, see Howard v.

Dallas Morning News, Inc., 918 S.W.2d 178, 182-83 (Ark. 1996). The arrangement

between OMLP and American Greetings, though somewhat unique, is not

5

significantly distinguishable from the relationship contemplated by Petit Jean: an

independent contractor called upon to perform a specialized task that involved

obvious hazards.

Second, the Occupation Safety and Health Administration (OSHA) regulations

and the Arkansas statutes and regulations that the plaintiffs cite fail to impose an

alternative duty on American Greetings. Though a violation of an OSHA regulation

The record indicates that OMLP conveyed the transformers at issue to 5

American Greetings in 2007 as part of an economic incentive package when

American Greetings moved to Osceola. See J.A. 32, 270-71. Periodically, American

Greetings would call OMLP to fix minor issues related to the electrical lines, such as

blown fuses. See J.A. 363.

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may be relevant evidence of whether American Greetings breached a duty it may have

owed the plaintiffs, see Dunn v. Brimer, 537 S.W.2d 164, 165-66 (Ark. 1976), the

regulations do not independently create private rights of action or impose alternative

duties on defendants. See Solis v. Summit Contractors, Inc., 558 F.3d 815, 828-29

(8th Cir. 2009); see also 29 U.S.C. § 653(b)(4) (“Nothing in this chapter shall be

construed to . . . enlarge or diminish or affect in any other manner the common law

or statutory rights, duties, or liabilities of employers and employees under any law

with respect to injuries, diseases, or death of employees arising out of, or in the

course of, employment.”); Koch v. Northport Health Servs. of Ark., LLC, 205 S.W.3d

754, 766 (Ark. 2005) (reasoning that a federalregulation did not provide the “relevant

standard of care” but, nonetheless, could still serve as “evidence of the types of

considerations that should bear on the reasonable person”). Similarly, Arkansas

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courts have been hesitant to permit Arkansas statutes and regulations to expand

common law causes of action, see Cent. Okla. Pipeline, Inc. v. Hawk Field Servs.,

LLC, 400 S.W.3d 701, 711 (Ark. 2012); Kowalski, 378 S.W.3d at 118-19, and only

do so when faced with clear legislative intent. See Shannon v. Wilson, 947 S.W.2d

349, 356-58 (1997). The plaintiffs have failed to identify any Arkansas statutes or

regulations that clearly impose duties on persons in the position of American

Greetings, much less an Arkansas case supporting their claim that American

Greetings owed them an alternative duty.

Satisfied that the principles set forth in Petit Jean and its progeny control this

case, we now apply Petit Jean.

B.

This case fits within the no-duty rule articulated by Petit Jean, and thus the

plaintiffs’ negligence claim fails. The plaintiffs were independent contractors

We express no opinion on whether American Greetings was an “employer” as 6

the term is used in OSHA’s regulations.

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brought to American Greetings’s facility by their supervisor to perform electrical

work. The plaintiffs, much like the plaintiffs in Stoltze and Petit Jean, were

experienced electrical workers, who understood the obvious risks of electricity

inherent in their profession. See Stoltze, 127 S.W.3d at 469, 476; Petit Jean Electric

Co-op., 606 S.W.2d at 68. Moreover, the plaintiffs’ injuries, much like the plaintiffs’

injuries in Stoltze and Petit Jean, arose because of the dangerous nature of electrical

work. Evidence of American Greetings’s alleged failure to apply bestsafety practices

and its failure to deenergize the transformer does not give rise to a material question

of fact because these actions directly relate to the obvious, core hazard an electrical

utility worker faces—the danger of electricity when approached with improper

equipment. See Petit Jean Electric Co-op., 606 S.W.3d at 68. The principles

established in Petit Jean acknowledge that the contractor is best able to assess the

obvious risks inherent in the contractor’s chosen trade. Here, the plaintiffs had years

of experience working with OMLP, understood the danger of approaching a

transformer with incompatible equipment, and had been trained to measure voltage. 

Moreover, as employees of OMLP, the plaintiffs were compensated for working in

a field that involved the inherent risks of electricity.

Further, because American Greetings did not exercise control over the

plaintiffs’ work, American Greetings acquired no additional duties. Without a

contract memorializing the parties’ rights and obligations, we analyze the parties’

conduct to determine whether American Greetingsretained control over the plaintiffs. 

See Nucor-Yamato Steel Co., 886 S.W.2d at 587. In their effort to show control, the

plaintiffs rely on Collins’s decision to keep power flowing to the transformer. This

single fact is insufficient to show American Greetings exercised control over the

plaintiffs and the worksite. The plaintiffs, who were employees of OMLP, were

called to American Greetings’s facility by their OMLP manager Griffin, who was

present at the facility when they arrived. Griffin directed Duncan to retrieve the

voltmeter, and Griffin directed Duncan to check the voltage of the transformer. 

Though Collins allegedly determined that the power should not be turned off, Duncan

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testified that Griffin was principally responsible for the plaintiffs and that Griffin was

ultimately the boss. J.A. 72, 79. In sum, the plaintiffs were under the control of

Griffin, who directed the means, methods, and details of the plaintiffs’ work, not

American Greetings. See Nucor-Yamato Steel Co., 886 S.W.2d at 587-88 (reasoning

that the employer of an independent contractor must do more than make suggestions

or recommendations or prescribe alterations or deviations in order to retain control);

Davis v. Lingl Corp., 641 S.W.2d 27, 29 (Ark. 1982) (reasoning that none of the

general contractor defendants “retained the right or undertook to control orsupervise

the manner in which” the plaintiff worked and therefore could not be liable for the

plaintiff’s injuries); accord Koch Refining Co. v. Chapa, 11 S.W.3d 153, 156 (Tex.

1999) (per curiam) (“Every premises owner must have some latitude to tell its

independent contractors what to do, in general terms, and may do so without

becoming subject to liability.”).

Finally, this case does not involve American Greetings’s general duty to warn

of latent or hidden dangers. According to the plaintiffs, Petit Jean imposed upon

American Greetings a duty to warn of latent dangers. The plaintiffs assert that the

hazards the transformer posed were hidden or latent because American Greetings

failed to properly label the transformer, the transformer doors were open and blocking

the warning labels, and the transformers were arranged in a unique manner. In the

abstract, the plaintiffs are correct that an employer of an independent contractor owes

a duty to warn of latent or hidden dangers. The plaintiffs, however, misconstrue the

scope of this duty, which does not encompass an obligation to warn of the latent

characteristics of an obvious hazard that arises because of the nature of the

contractor’s work. In Griffin II, which involved a wrongful-death suit brought by the

widow of a roofing contractor who fell through a roof skylight and died, the plaintiff

presented testimony at trial that one of the roof’s skylights wasrotting. Griffin II, 76

S.W.3d at 261-63. The plaintiff claimed that according to PetitJean this was a hidden

or latent hazard. On appeal, however, the Arkansas Supreme Court reasoned that

testimony about the rotting skylight was “irrelevant” because the skylight presented

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an obvious danger, even if aspects of the skylight (i.e., that it was rotting) remained

hidden. Id. at 263.

Here, the risk of working around electricity, specifically the risk that an arc

flash would occur if a transformer was approached with improper equipment, was an

obvious risk inherent in the plaintiffs’ work. Though some details about American

Greetings’s transformers may have been hidden, like the alleged rotting skylight in

Griffin II, the ultimate hazard the transformer posed was obvious, and the contractors

retained the ultimate responsibility to assess these risks. See id. at 263; see also

Crenshaw, 379 S.W.3d at 517 (“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

[plaintiff] roofer’s knowledge that those skylights existed.”). The transformer became

hazardous to the plaintiffs because they engaged with it in the course of their work. 

American Greetings did not exercise control over the plaintiffs and accordingly had

limited ability to ensure that the plaintiffs performed their work safely. Instead, the

party in control of the plaintiffs, their employer OMLP, was responsible for

overseeing the plaintiffs.

To conclude, American Greetings owed the plaintiffs no duty to warn of the

well-known hazard of approaching a charged transformer with improper equipment. 

Likewise, because the nature of the plaintiffs’ work necessarily implicated these

obvious hazards, American Greetings owed no duty to exercise ordinary care for the

plaintiffs’ safety. Because the plaintiffs have failed to demonstrate that American

Greetings owed them a duty, their negligence claims fail as a matter of law.

III.

For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of American Greetings.

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