dissenting.
Because material questions of.fact remain in.this .matter, I dissent from the majority’s opinion affirming the circuit court. First, the majority has misapplied the standard of review. “On appellate review, we determine if summary judgment was appropriate based on whether the evi-dentiary items presented by the moving party in support of the motion -leave a material fact unanswered. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328, 422 S.W.3d 116. We view the evidence in the-light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving-party. Campbell v. Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21.” Walls v. Humphries, 2013 Ark. 286, 6, 428 S.W.3d 517, 522. Here, the evidence must be viewed in the light most favorable to Duran. Yet, the majority has viewed the facts in the light most favorable to Southwest and erroneously affirmed the circuit court.
Second, when the correct standard is applied and the facts are viewed with the light most favorable to Duran, the record demonstrates that material facts remain in dispute and summary judgment was not appropriate. As the majority indicates, Duran filed his negligence suit and asserted Southwest owed multiple duties including: Southwest owed |uhim a duty to exercise ordinary care .for . his safety and to warn against any unusually dangerous conditions and Southwest owed him a duty of care as a business invitee on its property.
With regard to the duty to exercise ordinary care for his safety and to warn against any unusually dangerous conditions the majority holds: “As a utility trenching company, an' integral part of Glover’s work was to safely navigate around the danger posed by energized PMTs. We conclude that Southwest had no duty to warn Duran of the obvious danger of working near energized PMTs.” However, the record demonstrates that Glover was hired to lay PVC pipe, dig trenches, and pull wire through the pipes, not with energized transformers. The record further demonstrates that neither Duran or Glover were qualified to work with energized transformers.' Duran testified that Glover had never advised Duran that he was supposed to call' Southwest to de-energize an energized pad-mounted transformer before opening the transformer. Duran further testified that he had not been trained regarding a pad mounted transformer or explained, the difference between energized and nonenergized transformers. Glover testified that he held the keys to Southwest’s transformer boxes for over thirty years until Duran’s accident occurred, but is no longer allowed to open Southwest’s transformers. Southwest employee Crane testified that energized transformers required qualified and trained individuals with the correct equipment and Glover was not supposed to be accessing live equipment. Southwest employee Kenner testified that Glover nor any of his employees were qualified to do live line work. Further, Keener testified that based on the procedure in place, Glover should hshave notified Southwest so that Southwest could send qualified employees to the site to handle the energized transformer. Southwest employee Faber testified that Glover’s work did not deal with energized wires and he learned after Duran’s accident that some Southwest employees were aware that Glover had been accessing live wires. In sum, Southwest’s employees testified that Glover and his employees were not qualified lineman and Glover should not have been granted access to the transformers or given the keys to any of the transformers to access them without qualified electricians. Accordingly, the record demonstrates that there are material facts in dispute regarding whether the work with the transformer was an integral part of the job that Glover and Duran were hired to perform.
, Additionally, with regard to Duran’s contention that Southwest owed a duty of care as a business invitee on its property, the record demonstrates that when considering the evidence in the light most favorable to Duran, the record supports that material facts. remain in dispute. Duran testified that it was necessary to access the interior of the transformer for him to perform his job. Glover testified that there is a need to work inside the pad mounted transformer to make sure that the pipes line up. There is also evidence which indicates that Southwest knew that Glover was accessing transformers while performing his work. Therefore, there is a question of fact as to whether Duran and Glover were forced to encounter an energized transformer. "
Therefore, the record demonstrates that a question of fact remains and I would reverse and remand the matter to the circuit court.
11fiHart and Womack, JJ,, join.