Noonan v. Texaco, Inc.

713 P.2d 160, 1986 Wyo. LEXIS 450

• Court: Wyoming Supreme Court
• Decided: January 15, 1986
• Docket: 84-300
• Status: Published

Opinions

BROWN, Justice.

This is an appeal from a summary judgment granted in favor of appellees in a negligence action. Kevin Noonan was killed while working on an oil rig. Appellants brought suit against Texaco, Inc. (hereinafter Texaco), Joy Manufacturing Company (hereinafter Joy), Dresser Industries, Inc. (hereinafter Dresser), Leonard Charles Cruth, Max Atwell, Hercules Drilling, Brinkerhoff Drilling Company, Inc., Brinkerhoff-Signal, Inc., Petrolane Company, Petrolane Drilling Company, Signal Drilling Company, Inc., and Signal Drilling, Inc., for damages incurred in Kevin Noo-nan’s death. All defendants answered and denied liability. Appellees Texaco, Joy, and Dresser filed motions for summary judgment which were granted by the trial court. Subsequent thereto, appellants settled with all the remaining defendants, and appellants’ complaint against such defendants was dismissed with prejudice. From the summary judgment granted in favor of appellees Texaco, Joy, and Dresser, this appeal is brought.

Appellants raise the following issues:

"I

“Where a manufacturer negligently fails to guard machinery manufactured by it and fails to warn against its use without proper guards, is the manufacturer entitled to summary judgment because the purchaser/user of the product also failed to provide a guard for the machinery?

“II

“Where the owner of an oil well provided daily supervision over drilling operations and had the power to control safety aspects of the work, was it error for the trial court to grant summary judgment in favor of the owner where the owner knew that unsafe, unguarded rotating machinery was being used at the well site, and failed to warn of or correct such dangerous condition?”

We will affirm.

The facts show that on December 6, 1979, Kevin Noonan was killed while working on an oil rig in the employ of Brinker-hoff-Signal. While there were no eyewitnesses to the accident, the accident report reveals that Kevin Noonan was using a water hose to wash the drilling rig floor when the hose became wrapped around the rotating drill stem, also known as a “kelly.” The hose also became entangled around Kevin’s foot, lashing him to the rotating kelly. The rotation of the kelly caused his left leg to be severed, resulting in his death. Kevin’s body was found with his left leg lashed to the kelly bushing and master bushing, which connect the drill stem or kelly to the rotary table on the drilling rig floor.

When reviewing a summary judgment on appeal, our duty is the same as that of the district court in that we have before us the same material and must follow the same standards. American Legion, Samuel Mares Post No. 8, Department of Wyoming v. Board of County Commissioners of the County of Converse, Wyo., 697 P.2d 1040 (1985); and Roth v. First Security Bank of Rock Springs, Wyo., 684 P.2d 93 (1984). The party moving for summary judgment has the burden of proving there exists no genuine issue of material fact and that it is entitled to judgment as a matter of law. Larsen v. Roberts, Wyo., 676 P.2d 1046 (1984); and Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979). We look at the record from the viewpoint most favorable to the party opposing the motion, giving him every favorable inference which may be drawn from facts in the affidavits, depositions, and other material properly submitted in the record. Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147 (1981); and Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980).

I

Although argumentative, appellants’ first issue basically makes inquiry as to whether summary judgment was proper with regard to appellees Joy and Dresser. Appellants assert that Joy manufactured the kelly bushing and Dresser manufactured the master bushing. The thrust of appellants’ argument is that Joy and Dresser were negligent in not designing and manufacturing guards for the kelly bushing and master bushing. However, the trial court found such argument untenable since the driller Brinkerhoff-Signal had made a conscious decision not to use such guards. In his decision letter, the judge noted:

“As for Joy’s and Dresser’s motions for summary judgment, they are granted for the simple reason that regardless of the argument they failed to provide a bushing guard or failed to manufacture a safe one or violated some duty in that regard, all as alleged by plaintiff, the fact remains, as noted above, that no matter what they would have done, Brinkerhoff-Signal would not have used the guard. In short, as both Joy and Dresser point out, the failure to provide or manufacture such a guard was not the cause of the accident. Kopriva v. Union Pac. R. Co., 592 P.2d 711, 713 (Wyo.1979) said:

“ ‘In Lemos v. Madden, 28 Wyo. 1, 10, 200 P. 791, 793 (1921) Justice Blume defined the issue as follows:

“ ‘ “The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred.”

“ ‘Later in the case, 28 Wyo. at 12, 200 P. at 794, Justice Blume rejected the notion of “but for” causation and stated:

“ ‘ “But if the original wrong furnished only the condition or occasion, then it is the remote and not the proximate cause, notwithstanding the fact that there would have been no loss or injury but for such condition or occasion.”

“ ‘See also, Frazier v. Pokorny, Wyo., 349 P.2d 324 (1960); Gilliland v. Rhoads, Wyo., 539 P.2d 1221 (1975); and 57 Am.Jur.2d Negligence, § 378. See 65 C.J.S. Negligence § 103:’

“If the absence of the bushing guard contributed to the accident, its absence was the conscious decision of Brinker-hoff-Signal not to obtain one or use one if it had been available to it.”

In support of their motions for summary judgment, Joy and Dresser filed the affidavit of Max Atwell, safety director for Brinkerhoff-Signal, employer of the deceased. He testified in his deposition that it was the policy of Brinkerhoff-Signal not to use bushing guards because it was the opinion of Brinkerhoff-Signal, as well as the drilling industry, that such guards were of questionable use and safety. It is clear that Brinkerhoff-Signal made a conscious choice not to use bushing guards, and it seems immaterial whether Joy and Dresser manufactured their products with or without guards since the guards would not have been utilized on the drilling rig. Therefore, appellants have failed to show the existence of a genuine issue of material fact; i.e., how Joy and Dresser’s negligence, if any, was the proximate cause of the accident and resultant death. See, e.g., Thomas v. South Cheyenne Water and Sewer District, Wyo., 702 P.2d 1303 (1985); Apperson v. Kay, Wyo., 546 P.2d 995 (1976); LeGrande v. Misner, Wyo., 490 P.2d 1252 (1971).

In opposition to Joy and Dresser’s motions for summary judgment, appellants filed a “Memorandum in Opposition to Motions to Dismiss by Defendants Joy Manufacturing Company and Dresser Industries, Inc.” It is noted that there were numerous depositions filed in the record, but since we view the evidence on a motion for summary judgment in the same light as the district court, we need only consider those depositions which were before the district court. Appellants asserted that it was negligent for Joy and Dresser not to manufacture guards for the kelly bushing, master bushing, and rotary table. However, as noted above, appellants failed to show how this was the cause of the accident in this case when the driller would not have used such guards in any event. Although speculative, it may be surmised that if Joy and Dresser had manufactured their products with such guards, Brinkerhoff-Signal still would have refused to use them because Brinkerhoff-Signal questioned their utility and safety. It must also be noted that the water hose in the instant case initially became wrapped around the rotating kelly, not the kelly bushing where it eventually wound up. Appellants have not claimed it was negligent to leave the kelly unguarded.

It is further noted that the memorandum filed by appellants’ counsel in opposition to Joy and Dresser’s motions for summary judgment is full of categorical assertions of ultimate facts. If such categorical assertions, totally unsupported by competent evidence, could be used to withstand a motion for summary judgment, the procedure would be rendered useless. Maxted v. Pacific Car & Foundry Company, Wyo., 527 P.2d 832 (1974); and Clouser v. Spaniol Ford, Inc., Wyo., 522 P.2d 1360 (1974).

Appellants also assert in their brief that “Prior to Kevin Noonan’s death, OSHA began citing drilling contractors for failing to guard the kelly bushing. Nonetheless, Joy consciously decided not to manufacture guards for the equipment or to warn against its use without guards.” This argument is misleading when viewed in context with all relevant facts. While it is true that federal OSHA rules and regulations require kelly bushing guards and failure to use such may result in a citation, Wyoming OHSA rules specifically exempt the “rotary table, kelly and cathead” from guard requirements. Wyoming Occupational Health and Safety Rules and Regulations for Oil and Gas Drilling, Ch. 5, § 1(7). In a letter addressed to appellants’ counsel dated July 1, 1981, Donald D. Owsley, Administrator for the Wyoming Occupational Health and Safety Commission, revealed that the Wyoming Occupational Health and Safety Rules and Regulations “do not require guarding of the rotary table, the kelly bushing, or the kelly. In fact, the rules specifically exempt such equipment from guarding.” Furthermore, the Wyoming OHSA rules and regulations are controlling over federal OSHA rules and regulations once the secretary of labor determines that a state has promulgated standards comparable to the federal OSHA and has an enforcement plan in compliance with Section 18 of the Federal Occupational Safety and Health Act of 1970. Therefore, the Wyoming OHSA rules and regulations are controlling in this case and the Wyoming OHSA regulations do not require kelly bushings. An investigation into the accident was made by the Wyoming Occupational Health and Safety Department and such concluded there had been no violations of applicable rules and regulations which contributed to the fatality.

In any event, it is difficult to find any alleged negligence on the part of Joy or Dresser to have been the cause of the injuries and death here when the deceased’s employer, Brinkerhoff-Signal, chose not to use such guards on its drilling rig. It matters not what Joy and Dresser did or failed to do regarding bushing guards when their utility and safety were in question by the industry as a whole, Wyoming OHSA regulations specifically exempted such guards, and Brinkerhoff-Signal refused to use them. Furthermore, Joy and Dresser manufactured only component parts which were assembled as part of the oil rig by another party. Joy and Dresser had no control over the manner in which the' drilling rig was constructed nor did they have anything to do with a decision concerning the assembly of safety features. We find summary judgment was proper with respect to Joy and Dresser.

II

Appellants’ second issue basically asks whether summary judgment in favor of Texaco was proper. Appellants’ wording of the issue is argumentative and makes assertions of fact which have never been proved.

Brinkerhoff-Signal was in the course of drilling an oil well for Texaco when the accident occurred. The relationship of Brinkerhoff-Signal to Texaco' was that of independent contractor. The agreement between these two parties is clear evidence of such relationship, which specifically provided:

“17. INDEPENDENT CONTRACTOR: “17.1 In the performance of the work herein contemplated, Contractor is an independent Contractor, with the authority to control and direct the performance of the details of the work, TEXACO being interested only in the results obtained. But the work contemplated herein shall meet the approval of TEXACO and be subject to the general right of inspection and supervision herein provided to TEXACO to secure the satisfactory completion thereof. The actual performance and superintendence of all work hereunder shall be by Contractor, but TEXACO shall be privileged to designate a representative or representatives who shall at all times have access to the premises for the purpose of observing tests or inspecting the work performed by Contractor, in order to judge whether, in TEXACO’s judgment, such work is being performed by Contractor in accordance with the provisions of this contract and the Drilling Bid Contract. Such representative or representatives shall be empowered to act for TEXACO in all matters relating to Contractor’s performance of the work herein undertaken.”

In Wyoming, the overriding consideration in determining whether one is an employee or independent contractor is dependent upon whether or not the employer has the right to control the details of the work whereby liability is sought to be established. Scott v. Fagan, Wyo., 684 P.2d 805 (1984); Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034 (1978); Brubaker v. Glenrock Lodge International Order of Odd Fellows, Wyo., 526 P.2d 52 (1974). The determination of such issue is ordinarily one of fact for the trier of fact, but becomes one of law when only one reasonable inference can be drawn. Combined Insurance Comparty of America v. Sinclair, supra; and Barnes v. Fernandez, Wyo., 526 P.2d 983 (1974).

While it is true that a contract is not conclusive evidence of the status of the relationship between parties, it is a strong indication of the intended association. In Combined Insurance Company of America v. Sinclair, supra, at p. 1044, this court stated:

“We should say — perhaps in emphasis— that the most telling evidence indicating the intention of the parties with respect to the type of association they contemplated is the contract of employment itself * * *.”

In Parsons v. Amerada Hess Corporation, 422 F.2d 610, 611 (10th Cir.1970), the court stated: “While the contract is not conclusive evidence of the legal relationship of the parties, it is to be sure cogent evidence of it.” In this case, Texaco’s supervisory role was result oriented so as to insure satisfactory performance of the work. Such a role is common between owners and independent contractors. Texaco did not retain the power to control the activities of the driller, Brinkerhoff-Signal.

“ * * * [T]he owner may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the independent contract — including the right to inspect, [citation] the right to stop the work, [citation] the right to make suggestions or recommendations as to details of the work, [citation] the right to prescribe alterations or deviations in the work, [citation] — without changing the relationship from that of owner and independent contractor or the duties arising from that relationship. * * * ” McDonald v. Shell Oil Company, 44 Cal.2d 785, 285 P.2d 902, 904 (1955).

See also Peter v. Public Constructors, 368 F.2d 111 (3rd Cir.1966).

In Sword v. Gulf Oil Corporation, 251 F.2d 829 (5th Cir.1958), the court found an employee of an independent contractor engaged to drill an oil well for Gulf Oil could not hold Gulf liable for injuries sustained in a drilling rig accident. The employee was injured when his foot and leg got caught in the revolving clutch of the rig which had no guard. The court found that Gulf could not be held liable for the injury since its relationship to the driller was that of independent contractor and since Gulf was only interested in the results of the work. The court stated:

“As has been noted, * * * the contract provided that in the performance of the work the contractor was an independent contractor with the authority to control and direct the performance of the details of the work, and that Gulf was interested only in the results obtained. The contract continued: ‘But the work contemplated herein shall meet the approval of Gulf and be subject to the general right of inspection herein provided to Gulf to secure the satisfactory completion thereof.’ That degree of right of supervision and control was clearly reserved for the benefit of Gulf itself, in its legitimate concern for the protection of its investment and properties and the satisfactory completion of the well. * * * That degree of right of supervision and control was not inconsistent with the relationship between Gulf and its independent drilling contractor as such, and did not impose on Gulf any direct duty to the employees of its independent contractor, in the absence of actual control of the operations by Gulf or its employees.” Id., at 833.

Accord, Hurst v. Gulf Oil Corporation, 251 F.2d 836 (5th Cir.1958), reh. denied, 254 F.2d 287 (5th Cir.1958), cert, denied 358 U.S. 827, 79 S.Ct. 44, 3 L.Ed.2d 66 (1958).

A case involving similar facts recently arose in Simpson v. Home Petroleum Corporation, 770 F.2d 499 (5th Cir.1985). In that case, a drilling rig crew member brought action against the oil and gas lessee and the lessee’s drilling consultant for injuries he received in an accident involving the kelly. The plaintiff-employee alleged that the lessee (Home Petroleum) was responsible for the drilling consultant’s (Weems’) acts through a master-servant relationship. After trial to a jury, the jury found the relationship to be that of an independent contractor. On appeal the Fifth Circuit discussed burden of proof at length, and upheld the jury verdict finding an independent contractor relationship.

“Home offered evidence indicating that Weems acted as an independent contractor, for whom Home would not be responsible. It established that Weems billed for his services on a monthly basis and, unlike the company men, that Home did not take out deductions from his paycheck. It also introduced an expert witness who testified that consultants like Weems work independently of rig operators such as Home. On cross-examination, however, the expert testified that a drilling consultant has somewhat less discretion than a drilling foreman to vary from Home’s instructions in the' well prognosis. All in all, this evidence tends to establish an employer/independent contractor relationship between Home and Weems.

⅝ JH ⅜! ⅜ ⅜ !}i

“Finally, as we have noted, the existence of a master-servant relationship is a necessary part of the plaintiff’s case when recovery is sought on a respondeat superior theory, and in that regard ‘the essential inquiry is whether or not the employer has the contract right to control ’the opposite contracting party in the details of the work to be performed.’ [Citation.] Such a right to control is a prerequisite of the master-servant relationship. Conversely, the absence of such a right of control is a prerequisite of an independent contractor relationship. Master-servant and independent contractor are thus opposite sides of the same coin; one cannot be both at the same time with respect to the same activity; the one necessarily negatives the other, each depending on opposite answers to the same right of control inquiry. * * * ” Id., at 501, 506-507.

In support of its motion for summary judgment, Texaco filed the affidavit of Charlie Cruth, employed by Brinkerhoff-Signal, who testified that the daily operations of drilling the well for Texaco were left up to Brinkerhoff-Signal. The power to hire and fire employees on the rig belonged to Brinkerhoff-Signal.

In opposition to Texaco’s motion for summary judgment, appellants filed, among other things, the affidavit of John Butters, an engineer. Mr. Butters claimed the drilling rig in question was in violation of federal OSHA regulations regarding the proper safety color codes. However, Mr. Butters did not state exactly how the drilling rig parts in apparent violation of the safety color codes should have been colored. Such allegation is not totally clear, and what we have said previously regarding the applicability of federal OSHA regulations is applicable here. Mr. Butters further stated that in his opinion the absence of bushing guards was a violation of industry standards. Such allegation is not persuasive since we have already noted that the safety and benefit of such guards were in controversy within the oil drilling industry.

Appellants also relied upon the affidavit of Raymond F. Tyler, a company man from Texaco, who opined that he personally would not allow an oil rig to operate without a kelly bushing guard in place. But such seems inconsequential since we have already determined that Texaco’s relationship with the driller was that of an independent contractor, and Texaco exercised no control over the performance of the details of the driller’s work.

It is claimed that because Texaco retained the right to inspect and require safe equipment, material and supplies and to require replacement if deemed unsafe, that such destroyed the asserted independent contractor status. Paragraph 3.21 of the contract between Texaco and Brinkerhoff-Signal provided:

“3.21 TEXACO shall have the right from time to time to inspect and examine the drilling equipment, material and supplies furnished by Contractor and if found inadequate or unsafe for the work required to be done, Contractor shall at once replace the article or articles with articles deemed by TEXACO to be adequate and safe for such work.”

We do not think such a provision destroys the independent contractor relationship. We think an owner who undertakes to see that an independent contractor operate in a safe manner ought not be penalized. The reservation of a right to require safe equipment, material, and supplies to be used by the contractor is not without justification or reason. The owner has a vital interest in assuring himself that his well will be drilled efficiently, in a good workmanlike manner, at a reasonable cost, and that the final result is as good as possible. Good, safe equipment is a substantial factor in insuring that performance. But, a simple reservation of a right to inspect and secure that benefit does not cause the contractor to become the owner’s employee, for the owner has not taken over the details of safety with respect to the contractor’s employees.

The contractor still accepts and reviews applications for employment, determines who to hire, presumably knows which potential employees have accident records and their past employment history. The contractor-employer is responsible for safety training of his employees and for training them in the performance of their work. He provides safety equipment and manuals and retains the right to discipline or even discharge them for unsafe practices. The details of safety being in control of the contractor rather than Texaco, it is apparent to us that Texaco’s minimal, and we feel necessary, involvement in safety did not result in the contractor becoming Texaco’s employee so that Texaco became liable to appellant under the doctrine of responde-at superior.

One authority has stated:

“It is apparent that virtual abrogation of the general doctrine of an employer’s nonliability for acts of an independent contractor or the latter’s servants would result if the law were to predicate, under all circumstances, the existence of an absolute duty on the employer’s part to guard against all accidents, probable as well as improbable, that might happen, to the damage of third persons, while stipulated work is being performed by an independent contractor. If, therefore, recovery is sought on the ground that an employer should have adopted certain precautionary measures for the purpose of preventing the injury complained of, the action must fail unless the plaintiff can at least show that in view of the nature of the work and the conditions under which it was to be executed, the defendant should have foreseen that the actual catastrophe which occurred was likely to happen if those precautionary measures were omitted. * * * ” 41

Am.Jur.2d Independent Contractors § 35, p. 795 (1968).

Indeed, it may be negligent for an owner to fail to provide that an independent contractor perform his work in a safe manner:

“One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

“(a) fails to provide in the contract that the contractor shall take such precautions, or

“(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.” (Emphasis added.) Restatement (Second) of Torts § 413 (1965).

We agree with the district court’s disposal of Texaco’s motion for summary judgment wherein it stated:'

“It seems obvious to me that Texaco had nothing to do with the accident. Obviously, Brinkerhoff-Signal, as the driller, was an independent contractor of Texaco who had no control over Brinkerhoff’s employees. * * *”

We find summary judgment was also proper with regard to Texaco in that appellants also failed to establish any genuine issue of material fact. We think it clear that the relationship between Brinkerhoff-Signal and Texaco was that of independent contractor and that appellants failed to support their allegations of negligence on the part of Texaco.

The judgment of the district court is affirmed.

THOMAS, C.J., specially concurs.

ROSE, J. (Retired), dissents.