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Jordan v. Diamond Equipment & Supply Co.4/28/2005
This case arises from an order from the Benton County Circuit Court granting a motion for summary judgment filed by appellees, Diamond Equipment & Supply Co. ("Diamond") in a personal injury action brought by appellants, Michael R. Jordan and Rachel Jordan. We affirm the trial court's ruling.
On October 31, 2001, appellant Michael L. Jordan, who is engaged in the business of light construction and landscaping, was involved in a landscaping project on the premises of a customer. The project required that appellant transport loose materials to the top of a slope, so he went to Diamond to rent a Bobcat Model 763 skid-steer loader ("Bobcat loader") for this purpose. Diamond is engaged in the business of renting and leasing various items of equipment and tools to the public. While at Diamond, Jordan sought the advice from Diamond personnel as to the appropriate machine for the task, and based on that information, Jordan elected to rent the Bobcat loader and a trailer for one day. Jordan entered into a contract with Diamond for the leasing of the Bobcat loader and the trailer and signed a rental agreement, which contained an exculpatory clause. Jordan signed the invoice and paid a fee totaling $185.87 for the lease of the equipment for the one-day period.
That same day, after obtaining the Bobcat loader, Jordan returned to his landscaping project. During the course of his job , the Bobcat loader became top-heavy and overturned backward and flipped several times down the sloped terrain. As a result, Jordan suffered a severe impact to his spine, which caused permanent spinal-cord injuries.
On May 12, 2003, Jordan and his wife, Rachel, brought a negligence action against Diamond. On June 26, 2003, Diamond answered, and on April 23, 2004, Diamond filed a motion for summary judgment, arguing that under Ark. R. Civ. P. 56, the trial court should rule as a matter of law in favor of Diamond.
On May 4, 2004, the Jordans responded to Diamond's motion for summary judgment, arguing that the language in the clause "does not exculpate Diamond from the consequences of its own negligence in connection with its acts and omissions in connection with the rental of the Bobcat loader . . . [.]" The Jordans contended that the language in the provision does not exculpate Diamond from the failure to provide adequate instructions and warnings, and that the agreement is void for lack of mutuality of obligation. They further alleged that the provision is void for lack of consideration, and that the boilerplate language in the agreement violates public policy.
On May 11, 2004, Jordan filed a first amended and substituted complaint upon a theory of negligence for (1) failure to take into account in advising Jordan of the appropriate machine for the conditions and circumstances under which he intended to use it; (2) failure to adequately instruct Jordan as to the safe operating procedures and conditions upon which the machine could be safely operated; (3) failure to advise Jordan of the stability characteristics of the machine and of the difference in distribution of weight bias in loaded versus unloaded conditions; (4) failure to warn Jordan that the Bobcat loader was unsuited for use of loading or unloading materials upon an inclined surface, which could have been reasonably anticipated by Diamond; (5) failure to warn Jordan that the Bobcat loader was suitable for use, including loading and unloading, only on relatively flat surfaces; and (6) failure to instruct and educate its personnel as to the proper operating procedures of skid-steer loaders and of the stability characteristics of these machines. Jordan sought damages for past and future pain, mental anguish, past and fu
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