                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                 Nos. 06-4115/4188
                                   ___________

The Shaw Group, Inc.                   *
                                       *
      Appellant/Cross-Appellee,        *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Arkansas.
Beverly Gay Marcum, and                *
Belinda Gail Henly,                    *
Co-Administrators for the Estate of    *
Van Ryan Marcum, Deceased,             *
                                       *
      Appellees/Cross-Appellants.      *
                                  ___________

                              Submitted: October 15, 2007
                                 Filed: February 26, 2008
                                  ___________

Before LOKEN, Chief Judge, GRUENDER, and BENTON, Circuit Judges.
                              ___________

BENTON, Circuit Judge.

      This wrongful death lawsuit arises out of the fatal electrocution of United States
Army Private Van Ryan Marcum. His Estate sued The Shaw Group, Inc., a private
contractor in charge of maintenance and repairs at Fort Benning, Georgia. The Estate
alleges that Shaw negligently performed its duties under the contract with the United
States Army. A jury returned a verdict against Shaw. Shaw appeals, seeking
judgment as a matter of law, or alternatively a new trial. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
                                          I.

     On June 19, 2004, Private Marcum leaned his head and back against an
abandoned, metal latrine, following an exercise on firing range Malone 14 at Fort
Benning. The outer walls of the latrine carried a live current of electricity. Private
Marcum was fatally electrocuted.

      An investigation showed that the building was insufficiently grounded and
improperly bonded, and had a faulty circuit breaker and a short in the wiring to a fan.
The short energized the shell of the metal building. When Private Marcum sat down
and leaned against the building, he completed the circuit and became the ground.

       Before Private Marcum’s death, Shaw was to demolish several abandoned,
metal latrines, including the Malone 14 latrine, pursuant to an approved individual job
order (IJO) from the Army. The approved IJO had an original “suspense date,” a
completion date, of March 14, 2004. Suspense dates are used to evaluate the
timeliness of Shaw’s work. On June 17, two days before Private Marcum’s death,
representatives from the Army and Shaw attended a budget meeting. Among other
things, they discussed this IJO. The Army and Shaw agreed to postpone, or “slow
play,” the demolition of metal latrines, including the Malone 14 latrine.

       Before trial, Shaw moved for summary judgment, asserting it had no duty under
the contract to demolish the abandoned, metal latrines. The district court1 ruled that
Shaw had a duty to inspect, repair and maintain the Malone 14 latrine. The court also
ruled that justiciable questions of fact existed regarding the demolition of the Malone
14 latrine and that foreseeability was a question for the jury because reasonable
persons could differ about it. During trial, the court denied Shaw’s motion for

      1
        The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.

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judgment as a matter of law; and after trial, the court denied Shaw’s renewed motion
for judgment as a matter of law and motion for new trial.

        The jury returned a verdict against Shaw. It awarded $1.5 million for mental
anguish to Private Marcum’s father, $1.5 million for mental anguish to his mother, $3
million in damages for “loss of life,” and $500,000 for conscious pain and suffering,
for a total verdict of $6.5 million. On special interrogatories, the jury apportioned 75
percent of the fault to the Army and 25 percent to Shaw.

                                           II.

       This court reviews de novo the district court’s decision to deny judgment as
a matter of law. Schooley v. Orkin Extermination, Co., Inc., 502 F.3d 759, 764 (8th
Cir. 2007). “Judgment as a matter of law is only appropriate where the evidence
adduced at trial is entirely insufficient to support the verdict.” Id. In making this
determination, the court considers all the evidence in the record without weighing
credibility, while resolving conflicts and making all reasonable inferences in favor
of the non-moving party. Id. This court will not set aside a jury verdict “unless there
is a complete absence of probative facts to support the verdict and only speculation
supports the verdict.” Ollis v. HearthStone Homes, Inc., 495 F.3d 570, 575 (8th Cir.
2007). This court may “affirm the denial of a motion for judgment as a matter of law
on any basis the record supports.” HOK Sport, Inc. v. FC Des Moines, L.C., 495
F.3d 927, 934 (8th Cir. 2007). In this diversity case, the parties and the district court
have applied the substantive law of Arkansas. See Transcontinental Ins. Co. v.
Rainwater Constr. Co., LLC 509 F.3d 454, 456 (8th Cir. 2007).

      Shaw claims the district court erred in denying its motion for judgment as a
matter of law. Shaw premises its arguments on the concepts that its duties to Private
Marcum are defined exclusively by the contract and that the extent of these duties is
a matter of law to be determined by the court.

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       Under Arkansas law, the issue of whether a duty exists is always a question of
law. Lacy v. Flake & Kelley Mgmt., Inc., 235 S.W.3d 894, 896 (Ark. 2006). “If no
duty of care is owed, summary judgment is appropriate.” Id. To determine what
duty, if any, Shaw owed Private Marcum, this court must first determine what duty
Shaw owed the Army under the contract. See Perry v. Baptist Health, 189 S.W.3d
54, 58 (Ark. 2004) (“In Arkansas, a party may recover for damages from breach of
contract when that party is a third-party beneficiary to the contract.”); Wilson v.
Rebsamen Ins., Inc., 957 S.W.2d 678, 682 (Ark. 1997).

       It is “a settled rule in the construction of contracts that the interpretation must
be upon the entire instrument, and not merely on disjointed or particular parts of it.”
Byme, Inc. v. Ivy, 241 S.W.3d 229, 236 (Ark. 2006), quoting First Nat’l Bank of
Crossett v. Griffin, 832 S.W.2d 816, 819 (Ark. 1992). “In seeking to harmonize
different clauses of a contract, we should not give effect to one to the exclusion of
another even though they seem conflicting or contradictory, nor adopt an
interpretation which neutralizes a provision if the various clauses can be reconciled.
The object is to ascertain the intention of the parties, not from particular words or
phrases, but from the entire context of the agreement.” Byme, Inc., 241 S.W.3d at
236, quoting Sturgis v. Skokos, 977 S.W.2d 217, 223 (Ark. 1998).

       As the contractor, Shaw had several duties that are relevant here. Under
section 5.1.4.2 Critical Systems, Shaw had a duty to keep the electrical systems and
the structural integrity and safety of buildings “operational 24 hours a day, every
day.” Under section 5.1.2.5.4.3 IJO Work Approval, after the Army approved the IJO
to demolish abandoned, metal latrines (including Malone 14 latrine), Shaw had a duty
to demolish them in accordance with work scheduling practices. Shaw even had a
duty to maintain and repair the Malone 14 latrine, pending demolition:

      5.1.1.2.10 Facilities, Systems, and Equipment Identified for Future
      Replacement. The Contractor shall maintain and repair equipment as


                                           -4-
      outlined in this Contract, unless otherwise directed by the KO regardless
      of whether specific facilities, systems, or equipment have been
      identified for future replacement by the Government.

Shaw had a duty to perform its work in a timely manner:

      5.1.1.1.1 Customer Interface. As a part of the scheduling process, the
      Contractor shall coordinate all work with the facility where the work is
      to be done in a timely manner to preclude life-threatening situations. .
      ...

      5.11.1 INTRODUCTION
      The Contractor effort shall be sufficient to provide functionally usable
      range facilities fully capable of supporting the Fort Benning training
      and support mission. The Contractor shall be responsible for providing
      timely service and maintenance to minimize any disruption of the
      training mission.
      ....

      5.11.2.2.6 Response Times. Due to the heavy use of ranges, ranges
      shall be repaired within the timeframes specified by the Government so
      as not to delay future use of the range.
      ....

       Shaw asserts the contract unequivocally provides that no work can be
performed in any functional area without the issuance of a work order. Work orders
are separated into three categories:

      5.1.2.1 Standing Operating Orders (SOOs)

      SOOs represent work that is performed on a recurring basis . . . . SOO
      work is described under SCHEDULED TASKS in Functional Areas 5.2
      through 5.11, 5.15, and 5.17.
      ....

      5.1.2.2. Service Orders (SOs)



                                         -5-
      SOs represent work that is generally corrective in nature (e.g., repairs
      and replacements) or those related services that are not generally
      considered to be maintenance activities. . . . Examples include minor
      electrical, . . . . SO work is described under UNSCHEDULED TASKS
      in Functional Areas 5.2 through 5.11, 5.15, and 5.17. . . . An SO may be
      initiated . . . by the Contractor upon identification of a need for
      corrective action.
      ....

      5.1.2.3 Individual Job Orders (IJOs)

      IJOs represent project-oriented work such as repairs, modifications,
      replacements, or installations that exceed the thresholds defined above
      for a SO. . . . IJO work is described under UNSCHEDULED TASKS in
      Functional Areas 5.2 through 5.11, 5.15, and 5.17. An IJO may be
      initiated . . . by the Contractor upon identification of a need for a
      corrective action.
      ....

Shaw may self-initiate SOs and IJOs “upon identification of a need for corrective
action.” This also can be done under section 5.1.2.5.1 Sources of Work.
Additionally, Shaw may self-authorize SOOs and SOs under sections 5.1.2.5.4.1
SOO Work Approval and 5.1.2.5.4.2 SO Work Approval. Shaw may not commence
work on an IJO without the approval of the Army Contracting Officer under section
5.1.2.5.4.3 IJO Work Approval. Because Shaw may initiate work orders and self-
authorize SOOs and SOs, then the issue, as the district court correctly noted, is
whether Shaw had notice of a need to provide corrective action at the Malone 14
latrine.

       There were three work orders to repair electrical problems at latrines before
Private Marcum’s death: an IJO to repair a circuit breaker at the Wagner Range
latrine, an IJO for electrical wiring at AO Green Range latrine, and a SO to repair a
circuit breaker at the Ware Range latrine. Viewing the evidence most favorably to
the nonmoving party, this provides sufficient notice of a need to provide corrective
action, and consequently a duty to self-initiate a SO or an IJO. Therefore, the court


                                         -6-
did not err in finding that Shaw owed several duties under the contract relating to the
Malone 14 latrine as a matter of law.

       Shaw contends that at the time of the accident, it was under no duty to the
Army to remove the Malone 14 latrine because the Army indefinitely postponed the
IJO to demolish latrines. However, the evidence did confirm that Shaw was under
a duty to repair and maintain the Malone 14 latrine, to demolish the latrine, and to
demolish the latrine in a timely manner. The original suspense date was March 14.
Three months later, Shaw had not discussed or even assigned the IJO. Though Shaw
was granted relief on the suspense date, it did not mean that the IJO did not have to
be completed at all. Shaw was directed to obtain a new suspense date – not to
postpone the IJO indefinitely. Therefore, Shaw was still under a duty to demolish the
latrines. Because Shaw had a duty to maintain and repair the latrine at Malone 14
and also a duty to demolish the latrine timely, the jury could have reasoned that Shaw
breached its duties by not completing them at all and/or in a timely manner. The
evidence is sufficient to support this inference.

       Shaw also argues that even if it had a contractual duty to demolish the Malone
14 latrine before June 19, failing to meet the deadline did not make it liable for
Private Marcum’s death because his death was not foreseeable. Shaw concludes it
had no notice, and the Army made no determination, that the latrine posed a safety
risk, and the three previous work orders that were completed by Shaw at metal
latrines did not provide notice of a safety risk.

       Under Arkansas law, “[n]egligence is defined to mean the failure to do
something which a reasonably careful person would do, or doing something which
a reasonable careful person would not do, under circumstances similar to those shown
by the evidence . . . .” Wallace v. Broyles, 961 S.W.2d 712, 715 (Ark. 1998). As
essential elements, it requires a showing that a duty was owed and that the duty was
breached. Lacy, 235 S.W.3d at 896. Negligence also requires a showing that “a
reasonably careful person would foresee such an appreciable risk of harm to others
as to cause him not to do the act, or to do it in a more careful manner.” Wallace, 961

                                          -7-
S.W.2d at 715. It is not necessary that “the actor foresee the particular injury which
occurred.” Id.

       The evidence supports that an appreciable risk of harm was foreseeable. There
were three work orders for electrical work at three different latrines before Private
Marcum’s death; all work was completed before his death. Though there was
testimony that two of the latrines were not abandoned and that the circuit breakers did
not need repair at two of them, assessing this testimony is the function of the jury.
See HOK Sport, Inc., 495 F.3d at 934 (“[W]here conflicting inferences reasonably
can be drawn from evidence, it is the function of the jury to determine what inference
shall be drawn.”). Further, making all reasonable inferences in favor of the non-
moving party, the evidence supports the jury verdict that an appreciable risk of harm
was foreseeable, including electrocution. See Wallace, 961 S.W.2d at 715.

       The court did not err in denying Shaw’s motions for judgment as a matter of
law.

                                          III.

       This court reviews for abuse of discretion the district court’s denial of a motion
for new trial. Murphy v. Mo. Dept. of Corr., 506 F.3d 1111, 1116 (8th Cir. 2007).
It should only be granted if “the verdict is against the weight of the evidence and . .
. allowing it to stand would result in a miscarriage of justice.” Id., quoting Jones v.
TEK Indus., Inc., 319 F.3d 355, 358 (8th Cir. 2003).

        Shaw insists the district court erred in allowing the jury to decide the extent
of Shaw’s duty under the contract. As previously discussed, Shaw had a duty to
maintain and repair the latrine at Malone 14 and also a duty to timely demolish the
latrine pursuant to an approved IJO. The only question that the court left for the jury
was whether the Army indefinitely postponed the IJO to demolish the latrines. This
was a proper question of fact for the jury.


                                           -8-
       Shaw argues the court erred in admitting evidence of other duties under the
contract – that Shaw had a contractual duty (1) to perform a baseline inspection of
Fort Benning; (2) to anticipate and identify hazards before the Army became aware
of them; (3) to self-authorize a SO to inspect all metal latrines; (4) to ask the Army
to authorize an IJO to inspect all metal latrines; and (5) to implement a deficiency
identification program. Shaw also claims the court erred in allowing expert
testimony to interpret the contract.

       Evidentiary rulings are generally reviewed for abuse of discretion, Spencer v.
Young, 495 F.3d 945, 949 (8th Cir. 2007), including the district court’s decision to
admit expert testimony. Shuck v. CNH Am., LLC, 498 F.3d 868, 873 (8th Cir.
2007). However, this court “will not set aside a jury verdict unless the district court
clearly and prejudicially abused its discretion in determining whether or not to admit
evidence.” Allied Sys., Ltd. v. Teamsters Transp., Local 604, 304 F.3d 785, 791 (8th
Cir. 2002).

       The court did not clearly and prejudicially abuse its discretion in admitting
evidence of other duties under the contract allegedly unrelated to the approved IJO.
As previously discussed, the duties owed by Shaw under the contract did not derive
only from the approved IJO. Shaw also had duties to self-initiate a SO or an IJO
when given notice of a need for corrective action, to perform its work in a timely
manner, to maintain and repair the Malone 14 latrine, and to keep the electrical
systems operational 24 hours a day, every day. Therefore, admitting duties that are
expressly defined by the contract is not a clear and prejudicial abuse of discretion.

        Moreover, the court did not clearly and prejudicially abuse its discretion in
admitting the testimony of Ira Whitlock, the expert witnesss. Whitlock properly
testified as an electrical engineer, based on his experience working with military
contracts similar to the Shaw and Army contract. See Fed. R. Evid. 702 (“a witness
qualified as an expert by knowledge, skill, experience, training or education, may
testify . . . in the form of an opinion or otherwise”). The court properly excluded any
expert testimony as to Shaw’s duty under the contract, permitting Whitlock to testify

                                          -9-
only as to the ordinary business practices of those engaged in private contracting with
the military. See Lacy, 235 S.W.3d at 896 (duty is a question of law). Additionally,
Shaw had ample opportunity to cross-examine Whitlock and present contrary
evidence, and the court properly instructed the jury on expert testimony and the
burden of proof. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596
(1993) (“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”).

       Shaw also maintains the district court erred in refusing to submit its proffered
jury instructions. This court reviews for abuse of discretion a refusal to submit
proffered jury instructions. Powell v. TPI Petroleum, Inc., 510 F.3d 818, 823 (8th
Cir. 2007). “In doing so, ‘we must determine simply whether the instructions, taken
as a whole and viewed in light of the evidence and applicable law, fairly and
adequately submitted the issues in the case to the jury.’” Bass v. Flying J, Inc., 500
F.3d 736, 739 (8th Cir. 2007), quoting Wilson v. City of Des Moines, 442 F.3d 637,
644 (8th Cir. 2006). Reversal is warranted only if a party’s substantial rights are
affected. Bass, 500 F.3d at 739.

      Shaw asked for three jury instructions: (1) the Plaintiffs’ burden to prove
Shaw’s negligent performance of the IJO; (2) the only contractual duty owed by
Shaw with regard to the Malone 14 latrine is the contractual duty created by the IJO;
and (3) the Army waived the right to enforce the demolition of the Malone 14 latrine
because it lifted the original suspense date before June 19, 2004.

       The court did not err in declining Shaw’s jury instructions. The court properly
instructed the jury on the burden of proof, including the definition of negligence,
foreseeability, and proximate cause. It provided an instruction stating that the duty
owed by Shaw was defined exclusively by the contract, which is a correct statement
of Arkansas law. See Sparks Reg’l Med. Ctr. v. Blatt, 935 S.W.2d 304, 306 (Ark.
Ct. App. 1996). The court also gave Shaw’s jury instruction as to its affirmative
defense – that the Army prevented or hindered performance of the contract and that

                                         -10-
the burden was on Shaw to prove this contention. Viewing the instructions as a
whole and in light of the evidence and applicable law, the instructions fairly and
adequately submitted the issues in the case to the jury.

      The court did not err in denying the motion for new trial. As conceded by the
cross-appellant Estate, this court therefore need not address the cross-appeal.

                                       IV.

      The judgment of the district court is affirmed.

                      ______________________________




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