                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 99-3621
                                  ___________

Forrest Kincade, parent and guardian     *
of Jason Kincade, an incompetent,        *
                                         *
              Plaintiff-Appellant,       *
                                         *
Liberty Mutual Insurance Company,        *
                                         *
              Intervenor-Appellant,      *
                                         *
      v.                                 * Appeal from the United States District
                                         * Court for the Eastern District of
U.S. Electrical Motors, Inc.; Precision, * Arkansas.
Inc.,                                    *
                                         *
              Defendants                 *
                                         *
Borton, Inc.;                            *
                                         *
              Defendant-Appellee,        *
                                         *
John Does, 1 - 10; M/C Electric,         *
                                         *
              Defendants.                *
                                    ___________

                            Submitted: April 13, 2000

                                 Filed: July 26, 2000
                                  ___________
Before RICHARD S. ARNOLD, ROSS, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
                            ___________

ROSS, Circuit Judge.

      In this diversity case, Forrest Kincade, as parent and guardian of Jason Kincade,
and Liberty Mutual Insurance Company appeal from a judgment of the district court1
entered in favor of Borton, Inc. We affirm.

        In 1992 Borton entered into a contract with Producers Rice Mill (PRM),
agreeing to provide the structural and concrete work necessary to construct a rice
drying facility for PRM in Stuttgart, Arkansas. PRM agreed to furnish and install all
electrical and mechanical equipment necessary to complete and make the facility
operable. In April 1993 the parties entered into a second contract, under which Borton
provided labor, as directed by PRM, to install the mechanical equipment in the facility.
PRM furnished the machinery and "ancillary items"and retained "charge and control"
of the worksite. In October 1993, Jason Kincade, a PRM employee, was injured while
working on an unguarded tail pulley assembly of the rice conveyor belt.

       On behalf of his son, Forrest Kincade filed a negligence and products liability
action against Borton; Liberty Mutual, PRM's workers' compensation carrier,
intervened. Borton filed a motion for summary judgment, which the district court
granted. The court held that Borton had not owed a duty of care to Jason because the
undisputed evidence was that PRM was responsible for the design, fabrication, and
installation of the guards for the conveyor system.




      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
                                          -2-
        Appellants first argue that the court erred in granting summary judgment because
it disregarded their expert witnesses' affidavits indicating that Borton owed a duty of
care to Jason. They further argue that the affidavits met the Daubert standard, see
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and created a factual
dispute for the jury as to duty. We need not resolve any Daubert issues. It is well
established that "[t]he question of the duty owed to the plaintiff . . . is always one of
law and never one for the jury." Mans v. Peoples Bank of Imboden, 10 S.W.3d 885,
888 (Ark. 2000). "Duty is a concept which arises out of the recognition that relations
between individuals may impose upon one a legal obligation for another." Id.

       The district court properly granted summary judgment on the ground that Borton
did not owe a duty of care to Jason. If "no duty of care is owed," there is no liability.
Id. As the court held, the contracts unambiguously provided that PRM had the
responsibility for the design, fabrication, and installation of the mechanical and
electrical systems, which included the guards. Moreover, viewing the evidence and all
reasonable inferences therefrom in the light most favorable to appellants, see Kells v.
Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 830 (8th Cir. 2000), we agree with the
district court that the parties acted in conformity with the plain language of the
contracts.

       Contrary to appellants' arguments, there is no evidence raising a reasonable
inference that Borton voluntarily assumed a duty to guard the tail pulley or that PRM
relied on Borton's expertise in assembling and installing the conveyor system. "A
reasonable inference is one which may be drawn from the evidence without resort to
speculation." Fought v. Hayes Wheels Int'l, Inc., 101 F.3d 1275, 1277 (8th Cir. 1996)
(internal quotation omitted). It is true, as appellants note, that certain of Borton's
invoices were for engineering and fabrication services during the second phase of the
project. As Borton argues, however, there is no evidence giving rise to a reasonable
inference that the billed services were for the conveyor system. Pat Cooper, a Borton
employee, testified that although Borton had substantially completed the concrete

                                           -3-
structure before the mechanical phase began, as PRM fabricated and installed the
mechanical system, Borton had to make some modifications to the structure to insure
a proper fit. He also explained that during the mechanical phase, at PRM's direction,
Borton built a bridge connecting the dryer facility to another structure, which required
engineering and fabrication services.

        As the district court held, the undisputed evidence was that PRM was solely
responsible for the design, fabrication, and installation of the conveyor system,
including the guards. Although PRM had no engineers on staff, the evidence was that
it had designed the conveyor system based upon a system PRM had used for over 30
years and had fabricated the parts or obtained them from a source other than PRM.
Although PRM provided Borton with the tail pulley, it directed Borton's employees as
to the assembly, inspected the work, and found it acceptable. Contrary to appellants'
assertion, there is no evidence to suggest that PRM gave Borton a guard to install on
the tail pulley, but that Borton failed to do so.2 PRM did furnish Borton with guards
for the head drive, but James Fearno, Borton's on-site superintendent, testified that
Borton installed those guards and PRM furnished no other guards to Borton for
installation. Indeed, the undisputed evidence was that PRM had fabricated guards for
the site where Jason was injured, PRM employee George Hamilton installed one, but
removed it at the direction of Doyle Long, the PRM employee who had designed the
conveyor system. Long admitted that a guard had been on the tail pulley before the
accident and that he allowed the system to operate without the guard, suggesting it was
taken off because of a problem with dust. Long also testified that Borton had no reason
to remove the guard and that someone at PRM must have done so.

      Accordingly, we affirm the judgment of the district court.


      2
       We note that several of appellants' expert witnesses' affidavits concluding
Borton owed a duty of care to Jason were based in part on the erroneous premise that
Borton had failed to install a tail pulley guard furnished by PRM.
                                          -4-
A true copy.

     Attest:

        CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




                          -5-
