dissenting. I would not dis- miss this case but, instead, would reverse and remand for a new trial. In the first appeal in this matter, we made the following statement:
In the instant case, however, disputed facts exist regarding the hidden or latent dangers involved in the painting of appellant’s roof and whether or not those dangers were known or could have been discovered by appellant with reasonable care.
D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 466, 986 S.W.2d 836, 841 (1999) (Griffin I) (emphasis in original).
In Griffin I, we went on to say that the OSHA inspector, Edgar Reed, testified that “it was apparent that the skylights had dry rot.” In addition, Odell Davis testified that he noticed an indentation in the tin around the skylight which suggested that is where the victim, Charles Sanders, had stepped and that the tin had bent and given way. We then concluded:
After reviewing the evidence and all reasonable inferences arising therefrom in the light most favorable to Mr. Sanders, we cannot say that there was no “evidence of the existence of any defect or hazardous condition.” It is well settled that the weight and value of testimony is a matter within the exclusive province of the jury. Esry, supra. We, therefore, defer to the jury’s ascertainment of the credibility of the witnesses who testified about the roofs condition at the time of the accident.
Based upon all of the evidence in this case, we cannot say that no substantial evidence existed to support the jury’s verdict on the issue of Griffin’s liability.
Griffin I, 336 Ark. at 468, 986 S.W.2d at 842. We reversed and remanded because the victim' had been an employee of an independent contractor.
What has changed in the second trial? Nothing of significance as far as I can tell from the proof presented. The testimony from Edgar Reed and Odell Davis is the same or even more favorable to the widow. Indeed, Odell Davis’s testimony is stronger in the second trial. He testified that there were “soft spots” all over the roof and that “all of those skylights. . . were rotten.” He further testified that the tin was “weak all around this skylight.” And he testified the screws into the metal were in the wrong place where the victim fell. It seems woefully inconsistent for this court to now hold that the proof is not sufficient to support the verdict in the second trial when we held that it was sufficient in Griffin I.
Having said that, I believe the trial court erred in excluding part of the testimony of D.B. Griffin’s two engineering experts, Alan Anderson and John Stiles. Had they been allowed to testify, they would have opined about the overall structural integrity of the building and the fact that it was built in accordance with industry standards. That testimony, in my judgment, falls within the parameters of Ark. R. Evid. 702 as technical or other specified knowledge that would assist the trier of fact in reaching a decision. However, I would affirm the trial court in excluding their opinion testimony that there was no bend or crimp in the metal along the skylight and their opinions that the area around the skylight was not defective on the date of the accident. Such opinion testimony invades the province of the jury, and the trial court correctly excluded it.
I further would reverse on the basis of an erroneous instruction that was given to the jury on an employer’s duty to provide a safe workplace. The trial court instructed the jury that: “Every employer and every owner of a place of employment, place of public assembly or public building, shall construct, repair and maintain it as to render it safe.” The genesis for this instruction was Ark. Code Ann. § 11-2-117 (Repl. 2002), which deals with the duty of an employer to maintain a safe place of employment for its employees. We have interpreted the predecessor statute to § 11-2-117 (Ark. Stat. Ann. § 81-108 (Repl. 1960)) as not being applicable unless an employer-employee relationship existed. See Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969). Here, the victim was not the employee of D.B. Griffin but rather was the employee of an independent contractor. Accordingly, I agree with D.B. Griffin that this instruction erroneously placed a duty on the business to make the roof safe for employees of an independent contractor. That is not the law. Rather, the factual issue for the jury to decide was whether hidden or latent dangers on the roof were known to D.B. Griffin or could have been discovered with reasonable care. I conclude that giving this instruction constituted reversible error.
Imber, J., joins.