Paul Burcham v. Weyerhaeuser NR Company , 560 F. App'x 634 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2358
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Paul Burcham; Patty Burcham
lllllllllllllllllllll Plaintiffs - Appellants
v.
Weyerhaeuser NR Company
lllllllllllllllllllll Defendant - Appellee
Bituminous Insurance Company; Mike Alexander Logging
lllllllllllllllllllllIntervenor Plaintiffs
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Appeal from United States District Court
for the Western District of Arkansas - Texarkana
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Submitted: February 7, 2014
Filed: March 25, 2014
[Unpublished]
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Before LOKEN, BYE, and COLLOTON, Circuit Judges.
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PER CURIAM.
Paul and Patty Burcham (the Burchams) appeal the district court’s1 adverse
grant of summary judgment in their diversity negligence action which arose from
injuries Paul Burcham sustained while using a chainsaw to remove timber. Upon de
novo review of the record2 and the district court’s application of state law, see Day
v. Case Credit Corp., 427 F.3d 1148, 1152 (8th Cir. 2005), we affirm. Specifically,
we find that even assuming that the record established genuine issues of material fact
on whether Weyerhaeuser NR Company (WNR) undertook to provide a safe work
environment, a jury would be unable to conclude that there was negligence on WNR’s
part. See Stoltze v. Ark. Valley Elect. Coop. Corp., 127 S.W.3d 466, 469-70 (Ark.
2003) (one exception to general rule that employer is not responsible for injuries
sustained by independent contractor’s employees is when employer undertakes to
perform certain duties and negligently fails to perform them or performs them
negligently); see also Wagner v. Gen. Motors Corp., 258 S.W.3d 749, 753-54 (Ark.
2007) (essential elements of negligence claim); Bess v. Herrin, 831 S.W.2d 907, 908
(Ark. 1992) (negligence cannot be presumed from mere happening of accident). The
judgment of the district court is affirmed.
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1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.
2
We find no merit to the Burchams’ contentions that the district court did not
construe the record in a light most favorable to them, see McKenney v. Harrison, 635
F.3d 354, 358 (8th Cir. 2011), or improperly made credibility determinations, see
Coker v. Ark. State Police, 734 F.3d 838, 843 (8th Cir. 2013).
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