                                 Cite as 2015 Ark. App. 542

                 ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                       No. CV-15-170


                                                  OPINION DELIVERED OCTOBER 7, 2015
BRENDA HENDERSON
                               APPELLANT          APPEAL FROM THE JEFFERSON
                                                  COUNTY CIRCUIT COURT
                                                  [NO. CV-2013-430-5]
V.
                                                  HONORABLE JODI RAINES
                                                  DENNIS, JUDGE
TYSON FOODS, INC.
                                 APPELLEE         AFFIRMED



                         ROBERT J. GLADWIN, Chief Judge

       Appellant Brenda Henderson worked for Packers Sanitation Services, Inc. (PSSI),

which had contracted to clean and sanitize equipment for appellee Tyson Foods, Inc.

(Tyson). After Henderson was injured on the job, she filed a negligence suit against Tyson.

The Jefferson County Circuit Court dismissed her claim, awarding Tyson summary

judgment. On appeal, Henderson argues that the trial court erred in awarding summary

judgment because there were questions of material fact about whether Tyson reserved a right

to control its sanitation subcontractor, PSSI, and whether Tyson failed to use ordinary care

for Henderson’s safety and owed a duty to warn her about unreasonably unsafe conditions.

We affirm.

                                     I. Statement of Facts

       Henderson claimed in her August 16, 2013 complaint against Tyson that PSSI acted

as an agent of Tyson in managing the provision of some sanitation services at Tyson facilities.
                                 Cite as 2015 Ark. App. 542

She claimed that while she was employed by PSSI to perform the sanitation work, she was

injured at a Tyson plant. She was cleaning a piece of production equipment, a “C.A.T.

wheel,” when her glove became trapped, and her hand was pulled into the machine and

against the blade. She alleged in her complaint that Tyson was, or should have been, aware

that the C.A.T. wheel posed a substantial risk of injury to her and that precautions were not

being used to prevent injury during maintenance of the dangerous machinery. She charged

that she was severely injured and that Tyson controlled the operation, planning,

management, and quality control of the facility. She alleged that she asserted claims against

Tyson because it directly participated and controlled the operation and maintenance of the

machinery and owed a duty as owner of the facility.

       Tyson answered, denying that PSSI was its agent, and claimed that PSSI was an

independent contractor with which Tyson contracted to provide services, and that the

“Sanitation Service Agreement” (SSA) between Tyson and PSSI controlled. Tyson filed a

motion for summary judgment on March 26, 2014, alleging that the machine Henderson was

cleaning was under power before she began cleaning it, and that there was no dispute that

Henderson did not attempt to disconnect the power prior to her injury. Tyson also claimed

that Henderson’s complaint against it should be dismissed because her employer, PSSI, agreed

as a condition of its contract to take on the duties to train or warn Henderson regarding risks

involved with cleaning the machinery. Tyson relied on Williams v. Nucor-Yamato Steel

Company, 318 Ark. 452, 886 S.W.2d 586 (1994), arguing that no duty exists between a prime

contractor and the employee of an independent contractor unless there is such a retention


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of a right of supervision by the prime contractor that the contractor is not entirely free to do

the work his own way.

       Attached to the summary-judgment motion was the SSA, which provided that PSSI

was to perform sanitizing operations for areas inside and outside the facility, including

equipment, in a manner “meeting all regulatory agency and Tyson sanitation standards,

safety,” and more, including the facility’s “SSOPs.” Also, PSSI was to furnish all chemicals,

supplies, equipment, and labor, including supervisors, necessary to clean and sanitize the

equipment. The SSA provided that PSSI would train, supervise, and control the “labor as

is necessary to perform the duties provided for” in the SSA. PSSI contracted to perform as

an independent contractor and in a manner “which it deems in its own best judgment to be

suitable for the purposes contemplated by this” SSA. PSSI agreed to determine the

appropriate methods for safely cleaning the equipment and to train its employees. PSSI also

agreed to provide safety practices and procedures to prevent injuries to its employees.

       Henderson replied, alleging that Tyson did not delegate its duty of care to PSSI. She

claimed that an operator like Tyson owes a duty of care for the dangers in its facility to the

employees of its subcontractor, citing D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76

S.W.3d 254 (2002), for the proposition that an employer of an independent contractor 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. Henderson

argued that the language of the SSA wherein PSSI was to perform “in a manner meeting all

regulatory agency and Tyson sanitation standards, safety, food safety and quality assurance


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requirements, including the Plant’s SSOP,” was a reservation of control by Tyson. Finally,

Henderson claimed that she was not properly trained and that the danger was not an integral

part of the work. Based on these arguments, she asserted that summary judgment was not

appropriate. Attached to her response was her own affidavit alleging that she was trained for

two days to clean the C.A.T. wheel and that she had performed the job for about a year prior

to the injury. She stated that, at times while she worked, a Tyson supervisor walked through

with a PSSI supervisor and that she understood that Tyson maintained the machines.

       The trial court granted Tyson’s motion for summary judgment by order filed

September 16, 2014. The trial court found that Tyson provided sufficient proof to establish

a prima facie case that, as a matter of law, it owed no duty to Henderson. The trial court was

not convinced that the portions of the contract that required PSSI to comply with Tyson’s

sanitation standards, safety, food safety, and quality assurance requirements were evidence that

Tyson retained control of the supervision of PSSI’s employees. Neither was the court

convinced of Tyson’s control by Henderson’s affidavit stating, “At times, a Tyson supervisor

walked through with a PSSI supervisor.” The trial court also found that the terms of the

contract provided that PSSI’s job was to perform tasks that involved obvious hazards. The

trial court stated in its opinion that,

       [w]hen equipment to be cleaned includes grinders, eviscerators, saws, and augers, it
       is obvious that the task is hazardous. The Court must also note that the plaintiff states
       that she had been cleaning the piece of equipment without incident for approximately
       one year prior to her injury.




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Finally, the court cited Jackson v. Petit Jean Electric Co-operative, 270 Ark. 506, 606 S.W.2d 66

(1980), and D.B. Griffin, supra, in its finding that Tyson did not owe Henderson a duty to

properly train or warn her of potential risks.

       Henderson filed a motion to reconsider, but that motion was deemed denied when

the trial court did not rule on it within thirty days of its filing. Ark. R. Civ. P. 59 (2014).

Henderson then filed a timely notice of appeal, and this appeal followed, wherein Henderson

argues that Tyson reserved a right to control its sanitation subcontractor, PSSI, and that

Tyson failed to use ordinary care for her safety and owed her a duty to warn about

unreasonably unsafe conditions.

                                     II. Standard of Review

              Summary judgment should be granted only when it is clear that there are no
       genuine issues of material fact to be litigated and the moving party is entitled to
       judgment as a matter of law. O’Marra v. Mackool, 361 Ark. 32, 204 S.W.3d 49 (2005);
       Riverdale Dev. Co. v. Ruffin Bldg. Sys. Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). The
       burden of sustaining a motion for summary judgment is the responsibility of the
       moving party. O’Marra v. Mackool, supra; Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d
       445 (1997). Once the moving party has established a prima facie entitlement to
       summary judgment, the nonmoving party must meet proof with proof and
       demonstrate the existence of a material issue of fact. O’Marra v. Mackool, supra; Pugh
       v. Griggs, supra. We determine if summary judgment was appropriate based on
       whether the evidence presented by the moving party in support of its motion leaves
       a material fact unanswered, viewing the evidence in the light most favorable to the
       nonmoving party, resolving all doubts and inferences against the moving party.
       O’Marra v. Mackool, supra; George v. Jefferson Hosp. Ass’n Inc., 337 Ark. 206, 987
       S.W.2d 710 (1999); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Our
       review is not limited to the pleadings but also focuses on the affidavits and other
       documents filed by the parties. Hisaw v. State Farm Mut. Auto. Ins. Co., 353 Ark. 668,
       122 S.W.3d 1 (2003); Brown v. Wyatt, 89 Ark. App. 306, 202 S.W.3d 555 (2005).
       After reviewing the undisputed facts, we will reverse a grant of summary judgment
       if, under the evidence, reasonable men might reach different conclusions from those
       undisputed facts. Hisaw v. State Farm Mut. Auto Ins. Co., supra; Brown v. Wyatt, supra.


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Draper v. ConAgra Foods, Inc., 92 Ark. App. 220, 228–29, 212 S.W.3d 61, 66 (2005).

                             III. Reservation of Right to Control

       Regarding the issue of distinguishing between an independent contractor and an

employee, the Arkansas Supreme Court stated in Kistner v. Cupples, 2010 Ark. 416, at 6–7,

372 S.W.3d 339, 343–44, as follows:

               We have long held that an independent contractor is one who contracts to do
       a job according to his own method and without being subject to the control of the
       other party, except as to the result of the work. See Ark. Transit Homes, [Inc. v. Aetna
       Life & Cas.], 341 Ark. 317, 16 S.W.3d 545 2000); Johnson Timber Corp. v. Sturdivant,
       295 Ark. 622, 752 S.W.2d 241 (1988); Moore v. Phillips, 197 Ark. 131, 120 S.W.2d
       722 (1938); W.H. Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4 (1926). The
       governing distinction is that if control of the work reserved by the employer is control
       not only of the result, but also of the means and manner of the performance, then the
       relation of master and servant necessarily follows. But if control of the means be
       lacking, and the employer does not undertake to direct the manner in which the
       employee shall work in the discharge of his duties, then the relation of independent
       contractor exists. See Ark. Transit Homes, supra (citing Massey v. Poteau Trucking Co.,
       221 Ark. 589, 254 S.W.2d 959 (1953)). The right to control is the principal factor in
       determining whether one is an employee or an independent contractor. See id. It is
       the right to control, not the actual control, that determines the relationship. See id.
       (citing Taylor v. Gill, 326 Ark. 1040, 934 S.W.2d 919 (1996)).

       Henderson contends that summary judgment was not appropriate because there

remains a question of material fact about whether Tyson reserved a right to control its

sanitation subcontractor, PSSI. She cites Williams, supra, for the proposition that, even when

an owner, such as Tyson, hires an independent contractor, the owner continues to have a

duty to exercise ordinary care and to warn in the event there are any unusually hazardous

conditions existing which might affect the welfare of the employees. An exception to this

duty exists when the owner has reserved no right to control the work of the subcontractor,

and the subcontractor is absolutely free to perform the work in any way it chooses. See

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Williams, 318 Ark. at 455–56, 886 S.W.2d at 587. Henderson admits that she did not present

substantial evidence of Tyson’s actual control over PSSI. But, she insists that there was

sizable evidence that Tyson reserved the right to control the work of PSSI at its facility. See

id. (holding that, where no actual control exists, the contract is determinative of whether the

owner retained right of control or supervision).

       Henderson contends that the contract here explicitly reserves the right in Tyson to

control the work of PSSI. Section 1.2 of the SSA provides in part:

       PROVIDER shall perform the cleaning and sanitizing operations for the areas inside
       the Plant and outside areas identified in Exhibit A, including equipment, attached
       hereto and made part hereof, in a manner meeting all regulatory agency and Tyson
       sanitation standards, safety, food safety and quality assurance requirements, including
       the Plant’s SSOP. . . .

Henderson also points to PSSI’s agreement to warrant that its employees would wear

appropriate clothing and personal protective equipment. She argues that the SSA prescribes

specific and far-reaching Tyson policies that control the work of PSSI. Further, she contends

that PSSI had to comply with the compliance policy applicable to Tyson employees, and that

PSSI was required to attend training as Tyson deemed necessary to aid it in performing its

obligations under the SSA. The SSA further required PSSI to cooperate with Tyson to

investigate employment-law violations and to cooperate with Tyson on any remedial action

that was deemed necessary. The SSA also allows Tyson to

       inspect the books, records and operations of [PSSI] for the purpose of validating
       [PSSI’s] compliance with its obligations under this Agreement, including but not
       limited to compliance with applicable laws.




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Tyson requires PSSI to provide a certificate of safety compliance, and the SSA requires daily

inspection by Tyson. Thus, Henderson contends that Tyson retained the power and duty

to maintain and supervise safety precautions. She claims that PSSI’s agreement to meet

specifications for cleanliness or sanitation “established by the USDA or other regulatory

agency or Tyson” plainly gives Tyson control. She argues that these facts, viewed in the

light most favorable to her, strongly show that Tyson did not delegate its duty of care to

PSSI, and summary judgment should not have been granted.

       We hold that the trial court properly found that Tyson owed no duty to Henderson

because Tyson did not maintain control over the training or supervision of PSSI’s employees.

The Arkansas Supreme Court stated:

       We explained in Marlar [v. Daniel], 368 Ark. 505, 508, 247 S.W.3d 473, 476 (2007),
       that [t]he law of negligence requires as essential elements that the plaintiff show that
       a duty was owed and that the duty was breached. The question of what duty, if any,
       is owed a plaintiff alleging negligence is always a question of law and never one for
       the jury. (Citations omitted.) Thus, the law of negligence requires as an essential
       element that the plaintiff show that a duty of care was owed. Young [v. Gastro-
       Intestinal Ctr.], 361 Ark. 209, 205 S.W.3d 741 [(2005)]; Young v. Paxton, 316 Ark.
       655, 873 S.W.2d 546 (1994). Duty is a concept that arises out of the recognition that
       relations between individuals may impose upon one a legal obligation for the other.
       Marlar, 368 Ark. 505, 247 S.W.3d 473; see also William L. Prosser, Handbook on the
       Law of Torts § 42, at 244 (4th ed.1971). If no duty of care is owed, summary judgment
       is appropriate. Young, 361 Ark. 209, 205 S.W.3d 741.

Kowalski v. Rose Drugs of Dardanelle, Inc., 2011 Ark. 44, at 6–7, 378 S.W.3d 109, 114–15.

       No duty of care exists unless there is such a retention of a right of supervision by the

prime contractor that the independent contractor is not entirely free to do the work his own

way. See Williams, supra. Tyson contends that here, as in Williams, because it did not have

a right of supervision, the proper result was summary judgment entered in favor of the

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owner. We agree. A review of the SSA makes it clear that Tyson had no duty to prevent

injury to Henderson because the SSA clearly assigned those duties to PSSI.

       PSSI was designated as an “independent contractor” that would perform in a manner

“which it deems in its own best judgment to be suitable.” PSSI agreed to determine the

appropriate method for safely cleaning the equipment and would train its employees to do

so. Also, it agreed to furnish the training, supervision, and control of the employees. It

agreed to choose its own cleaning products and supplies and was obligated to furnish them,

along with the labor and supervisors, to sanitize the equipment. PSSI was “solely responsible

for supervising and directing all work performed by its employees and subcontractors at the

Tyson facility.”

       None of those provisions relied upon by Henderson give rise to a duty on the part of

Tyson to train or supervise PSSI employees or to otherwise protect them from sustaining

injury. Even the certificate of safety compliance relied upon by Henderson makes it clear

that PSSI “is solely responsible for supervising and directing all work performed by its

employees,” and would “ensure that its services are provided in a safe manner, and shall

implement safety practices and procedures in order to prevent injuries to its employees.”

       We also agree that the portions of the SSA relied on by Henderson do not support

that Tyson reserved control over the cleaning process or of the training of PSSI employees

on safe cleaning methods. PSSI was free to “clean as it sees fit” under the SSA. Thus, Tyson

retained no imputed liability with respect to cleaning and sanitizing the facility. Henderson

failed to meet proof with proof and demonstrate an existence of a material issue of fact.


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                                       IV. Negligence

               The question of the duty, if any, owed a plaintiff alleging negligence is always
       one of law and never one for the jury. DeHart v. Wal-Mart Stores, Inc., 328 Ark. 579,
       946 S.W.2d 647 (1997). It is generally recognized that an employer of an independent
       contractor 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. D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d
       254 (2002). The duty of an employer of an independent contractor to use ordinary
       care or to warn of latent dangers does not contemplate a duty to warn of obvious
       hazards that are an integral part of the work the contractor was hired to perform.
       Jackson v. Petit Jean Electric Co-op., 270 Ark. 506, 606 S.W.2d 66 (1980). However, the
       “obvious-danger rule” does not bar recovery when the invitee is forced, as a practical
       matter, to encounter a known or obvious risk in order to perform his job. Carton v.
       Missouri Pacific Railroad Co., 303 Ark. 568, 798 S.W.2d 674 (1990).

Culhane v. Oxford Ridge, LLC, 2009 Ark. App. 734, at 4–5, 362 S.W.3d 325, 327–28.

       Henderson maintains that the trial court also erred in determining that there was no

question of material fact about whether Tyson failed to use ordinary care for her safety and

owed a duty to her to warn about unreasonably unsafe conditions. She cites D.B. Griffin

Warehouse, supra, for the proposition stated in Williams, supra, that an employer of an

independent contractor 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.

       Henderson cites an unpublished opinion that states that the “obvious-danger rule”

does not bar recovery when the invitee is forced, as a practical matter, to encounter that

danger in order to perform his job. Merez v. Squire Court Ltd. P’ship., CA 02-82 (Ark. App.




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Dec. 18, 2002) (unpublished).1 She contends that washing floors and equipment need not

be inherently dangerous. She claims that the power to a chicken machine can be turned off

for cleaning, while the depth of a ten-foot ditch for a gas pipe cannot be turned off. See

Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993) (where the Arkansas Supreme

Court reversed a grant of summary judgment on the issue of whether Arkla was responsible

for supervision under the contract and did not address the danger of the job, where an

employee for a contractor died when a ten-foot-deep ditch collapsed on him while he was

working). However, she argues that a crushing machine does not have to be a danger to the

sanitizer if the employer and equipment owner take reasonable steps to look out for

employees. She asserts that a “lock-out/tag-out” device now prevents the danger to which

she was unreasonably exposed. She contends that she was forced to encounter Tyson’s

dangerous machinery to do her job. She contends that there is no exception to the rule

holding Tyson liable where the danger is not an integral part of the work.

       Tyson contends that summary judgment should be affirmed because the trial court

correctly held that Tyson owed no duty to Henderson to warn of obvious hazards that are

an integral part of the work that the independent contractor was hired to perform. See

Williams, supra (the general rule is that the owner has a duty to exercise ordinary care and to

warn in the event there are any unusually hazardous conditions existing which might affect

the welfare of the employees). We agree. The duty to warn of latent dangers does not



       1
       The citation of this unpublished opinion is in violation of Arkansas Supreme Court
Rule 5-2(c) (2015), and holds no precedential value.

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

contractor was hired to perform. D.B. Griffin, supra; Crenshaw v. Ark. Warehouse, Inc., 2010

Ark. App. 612, 379 S.W.3d 515 (holding that, although skylights on the roof may have been

hidden, the danger of falling through them was obvious in light of appellant roofer’s

knowledge that those skylights existed).

       We affirm on this issue because there was no evidence presented of a hidden danger

or an unusually dangerous condition. Henderson had been cleaning the equipment on

which she was injured for a year. She had been trained by PSSI and knew the C.A.T. wheel

was moving when she cleaned it. The dangers at issue were an integral part of her work;

they were obvious, not hidden. See Culhane, supra.

       Affirmed.

       WHITEAKER and HOOFMAN , JJ., agree.

       Maximillan Sprinkle and Marion A. Humphrey, for appellant.

        Munson, Rowlett, Moore & Boone, P.A., by: Bruce Munson, Jane M. Yocum, and Ashleigh
Phillips, for appellee.




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