concurring and dissenting. I concur in the majority’s conclusion that the summary judgment motion in favor of Clements + Poellot/Associates, PLLC (“Clements”) should be reversed on a question of material fact. However, I dissent because I believe that there was a failure of adequate notice to Entergy Arkansas, Inc. (“Entergy”) as a matter of law under Ark. Code Ann. § 11-5-307 (Repl. 2002).
Clements’s contention that there was no duty attached to its drafting of the designs for this building was challenged by appellant through the testimony of Gary McKibben. This testimony created a question of material fact as to whether there was a duty for Clements. I concur that this is a question that should be decided by a finder of fact.
I cannot, however, agree with the majority that there is a question of material fact as to whether Entergy received notice. As the majority opinion recites, Entergy received only a routine routing slip that noted plans involving a building serviced by Entergy had been filed with the City of Little Rock. This routing slip contained minimal information, as it was only meant to let Entergy know that there might be construction on a building served by Entergy. The proposed plans were not included with this routing slip, as the building permit had not been issued at the time it was sent. Consequently, there was no notice of proximity to the transmission lines.
Our statute contains a positive duty to inform an electrical utility of any work to be done that will bring individuals withing ten feet of overhead power lines. Ark. Code Ann. § 11 — 5— 307(a)(1). We interpret statutes using plain and ordinary language. Cave City Nursing Home, Inc. v. Ark. Dept. of Human Servs., 351 Ark. 13, 89 S.W.3d 884 (2002). The statute places a duty upon the party that will be doing work or activity within ten feet of an overhead power line to contact the electrical utility to make such arrangements as are necessary to preserve the safety of all involved. Arkansas Code Annotated § 11-5-307 plainly states that the electrical utility “shall be informed.” Id. (emphasis added). This is a mandatory provision. Appellant has conceded that there was no notice pursuant to this section of the code.
The failure to meet the mandatory requirements imposed by the legislature under our statutory scheme is a question of law and not of fact. Because we have a statute on point, I do not find appellant’s argument that “the source and timing of notification is of no import” persuasive. The statute clearly imposes a duty to inform the electrical utility of actions and work that would bring individuals or items in closer proximity to overhead power lines than ten feet. Appellant concedes that this did not happen and that the mandatory requirements of Ark. Code Ann. § 11-5-307 were not met. It seems clear to me that, as a matter of law, Entergy was not put on notice by the responsible party.
The majority distinguishes Arkansas Power & Light v. Lum, 222 Ark. 678, 262 S.W.2d 920 (1953), on the basis that Entergy received notice of the construction. In Lum, we held that there would be no negligence on the part of an electrical company if there was no duty owed to the injured person and that the electrical company was not under a duty to insulate wires against the unusual or extraordinary occurrences. Id. Specifically, when an employee of the State Highway Department was electrocuted while repairing a bridge above overhead power lines, we held that the electrical company was not liable because of a failure of any positive duty. In this case, Entergy did not receive notice in accordance with the statutory requirements, as conceded by appellant. For that reason, I believe that Lum, supra is controlling and that absent the notice required under Ark. Code Ann. § 11-5-307, the motion for summary judgment in favor of Entergy should be affirmed because there is no allegation that the power lines were unsafely energized as to their normal function.
In summary, I join the majority in reversing the grant of summary judgment in favor of Clements on an issue of disputed material fact, but I dissent with respect to reversing the summary judgment in favor of Entergy because in my opinion there was a failure of notice as a matter of law.
I am authorized to state that Justice Glaze and Justice Corbin join in this opinion.