Paul Burcham, et al v. Weyerhaeuser NR Company


PER CURIAM OPINION FILED - THE COURT: James B. Loken, Kermit E. Bye and Steven M. Colloton (UNPUBLISHED) [4136998] [13-2358]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 13-2358 ___________________________ Paul Burcham; Patty Burcham lllllllllllllllllllll Plaintiffs - Appellants v. Weyerhaeuser NR Company lllllllllllllllllllll Defendant - Appellee Bituminous Insurance Company; Mike Alexander Logging lllllllllllllllllllllIntervenor Plaintiffs ____________ Appeal from United States District Court for the Western District of Arkansas - Texarkana ____________ Submitted: February 7, 2014 Filed: March 25, 2014 [Unpublished] ____________ Before LOKEN, BYE, and COLLOTON, Circuit Judges. ____________ PER CURIAM. Appellate Case: 13-2358 Page: 1 Date Filed: 03/25/2014 Entry ID: 4136998 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. ______________________________ 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). -2- Appellate Case: 13-2358 Page: 2 Date Filed: 03/25/2014 Entry ID: 4136998

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