Abeyta v. Hensley

Citation595 P.2d 71
Decision Date16 May 1979
Docket NumberNo. 4908,4908
PartiesNarcisco ABEYTA, Appellant (Plaintiff below), v. Robert HENSLEY, Appellee (Defendant below).
CourtUnited States State Supreme Court of Wyoming

Peter H. Murphy, Plano, Tex., for appellant.

William S. Bon and Cameron S. Walker, of Schwartz, Bon & McCrary, Casper, for appellee.

Before RAPER, C. J., McCLINTOCK, THOMAS, and ROSE, JJ., and GUTHRIE, J., Retired *.

THOMAS, Justice.

The appellant, Narcisco Abeyta, brought this action seeking to recover damages for personal injuries which he sustained while working in the course of his employment as a tire repairman. The appellee, Robert Hensley, was the president and general manager of the tire repair firm where Abeyta was employed. It was Abeyta's theory that he could proceed against Hensley as a negligent co-employee. Abeyta claimed that Hensley was negligent in two respects: First, because Hensley failed in his duty to furnish Abeyta with a safe place to work; and second, because Hensley employed a young man who was incompetent to perform the duties assigned to him and whose negligence was asserted to have caused Abeyta's injuries. At the close of all the evidence the district court directed a verdict in favor of Hensley on the ground that there was no negligence shown on his part. We shall affirm the judgment of the district court.

We have examined the evidence in accordance with the standard set forth in Barnes v. Fernandez, Wyo., 526 P.2d 983, 985 (1974):

"In determining the question of whether a verdict should have been directed, under Rule 50(a), W.R.C.P., we must consider the evidence favorable to the party against whom the motion is directed, giving to it all reasonable inferences. * * * "

We also are mindful of the further teaching of that case that the question of the sufficiency of the evidence to create an issue of fact for the jury is solely a question of law, and we give no deference to the view of the trial court. We apply the test there adopted, i. e.:

" * * * 'whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.' Simblest v. Maynard, C.A.2d, 1970, 427 F.2d 1, 4."

On May 2, 1975, a customer of the tire repair firm brought a flat tire in to be repaired. That night Randy, the fellow servant whom Abeyta alleges to have been incompetent, dismounted, repaired and remounted the tire. Randy was a teenager who frequently worked evenings after attending school during the day. He had worked with Abeyta throughout Abeyta's employment at the tire repair firm which had begun in August of 1974, approximately nine months earlier. Randy testified that after he had repaired the tire he placed 35 to 40 pounds of air pressure in it, made a notation on the outside of the tire that it had been repaired, and leaned it against another tire in the service area.

On May 3, 1975, the customer returned to pick up the tire, and Abeyta, after observing that it had been repaired, proceeded to inflate it to a higher pressure. He rolled the tire to an area close to an air hose and laid it flat on the floor with the valve stem pointed upward. Abeyta hooked up an air hose and tapped around the lock ring on the rim with a hammer to assure himself it was not dangerous. Abeyta then determined that no air was coming out of the hose, and he went to the basement of the building to check the air pressure gauges. The gauges indicated that the air pressure in the system at that time was 180 pounds per square inch. Abeyta went back to the tire and re-connected the tire to the air hose and checked the air pressure in the tire twice. On each occasion the air pressure in the tire ranged only from 40 to 45 pounds per square inch.

After he had checked the tire a second time, Abeyta walked about ten feet away to a workbench where he remained for several minutes. He then heard a squeaking noise from the tire, and he ran back to it and reached across the tire to unhook the hose from the valve. At that instant the tire exploded, separating from the rim. From the force of the explosion the tire first struck and injured Abeyta, and then the tire flew approximately twenty feet straight up where it dented the metal roof of the building, leaving a noticeable mark on the ceiling. Abeyta's right arm was fractured in several places, resulting in serious and permanent injuries.

Abeyta in part describes the issues before the district court as:

"1. Whether Defendant, supervisor of Plaintiff, failed to exercise reasonable care to furnish Plaintiff with reasonably safe equipment to work.

"2. Whether Defendant, supervisor of Plaintiff, failed to exercise reasonable care to employ competent employees with whom Plaintiff was to work." 1

Abeyta contends that the district court should not have granted Hensley's motion for a directed verdict because there was evidence to take the case to the jury on the two grounds of asserted negligence. Although he failed to cite it in his brief, we assume that Abeyta relies upon our case of Markle v. Williamson, Wyo., 518 P.2d 621 (1974), in pursuing recovery against Hensley as a negligent co-employee.

In defending this appeal, as an alternative basis for affirming the trial court, Hensley argues that he owed no duty to furnish Abeyta with safe equipment or to employ competent employees because that duty rested with their common employer, citing such cases as Banks v. Liverman, 129 F.Supp. 743 (D.C.Va.1955); Whittle v. Atlas Powder Co., 34 F.Supp. 563 (D.C.Tenn.1940); Kerrigan v. Errett, Iowa, 256 N.W.2d 394 (1977); Dawley v. Thisius, 304 Minn. 453, 231 N.W.2d 555 (1975); Wilson v. Hasvold, 86 S.D. 286, 194 N.W.2d 251 (1972); Garchek v. Norton Co., 67 Wis.2d 125, 226 N.W.2d 432 (1975); Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973); and Wasley v. Kosmatka, 50 Wis.2d 738, 184 N.W.2d 821 (1971). Hensley contends that the duty is solely that of the master, and that an officer or manager or supervisor has no duty to provide a safe place to work. Hensley recognizes that the United States District Court for the District of Wyoming in Fraley v. Worthington, 385 F.Supp. 605 (D.C.Wyo.1974), has held to the contrary, but he seeks to distinguish that case.

The nondelegable duty of a master or employer to provide an employee with safe working conditions, including competent co-employees, has been established in Wyoming for a long time. 2 The liability, under Markle v. Williamson, supra, of a supervising or managing co-employee for negligence on his part in failing to provide an injured employee with a safe place to work is a novel question in this court. We do note that our discussion in this regard is of limited viability. As of July 1, 1975, a co-employee, like his employer, is protected from action by his fellow employee if he is acting within the scope of his employment unless he is grossly negligent. 3 As of May 27, 1977, the exception was changed to permit action only against employees who are culpably negligent acting within the scope of their employment. 4 Consequently a managing or supervising co-employee would no longer be subject to suit unless these respective statutory conditions were met.

In 2 Restatement of the Law Second, Agency 2d, § 354, p. 125 (A.L.I.1958), the rule is stated as follows:

"An agent who, by promise or otherwise, undertakes to act for his principal under such circumstances that some action is necessary for the protection of the person or tangible things of another, is subject to liability to the other for physical harm to him or to his things caused by the reliance of the principal or of the other upon his undertaking and his subsequent unexcused failure to act, if such failure creates an unreasonable risk of harm to him and the agent should so realize."

It would appear from the reporter's notes found in 2 Restatement of the Law Second, Agency 2d, Appendix, p. 587 (A.L.I.1958), that prior to the promulgation of this rule there was a substantial number of cases which had reached a contrary result, and as some of the cases cited by Hensley indicate, the rule has not been universally espoused since 1958. A perusal of the decided cases discloses that practically all courts found it important to be apprised by evidence of the actual circumstances surrounding the arrangement between the agent or employee and the master, and the actual circumstances of injury to a co-employee in arriving at their respective definitions of duty. In this instance, while there is no specific evidence on the question, Hensley is the only individual who could have acted on behalf of the corporate employer in furnishing Abeyta with a safe place to work. Consequently we would adopt the rule set forth in § 354, 2 Restatement of the Law Second, Agency 2d, for this purpose in Wyoming, again noting its limited efficacy, and also noting that even under the theory espoused by some of the courts upon which Hensley relies,...

To continue reading

Request your trial
11 cases
  • Mills v. Reynolds
    • United States
    • United States State Supreme Court of Wyoming
    • March 11, 1991
    ...the word "culpably" for the word "grossly." 1977 Wyo.Sess.Laws Ch. 142, § 1, § 27-12-103(a), W.S.1977; Cottonwood; Abeyta v. Hensley, 595 P.2d 71 (Wyo.1979). A case testing the constitutionality of the 1975 amendment to the Worker's Compensation Act soon came before the court. In Kendig, 64......
  • Barnette v. Doyle
    • United States
    • United States State Supreme Court of Wyoming
    • January 23, 1981
    ...personally responsible for the victim's injuries if these coemployees were culpably negligent. § 27-12-103, W.S.1977; Abeyta v. Hensley, Wyo., 595 P.2d 71, 73-74 (1979). The question then is, where does Mr. Barnette stand when he is both an officer and stockholder in the corporation and a I......
  • Boyer-Gladden v. Hill, S-09-0102.
    • United States
    • United States State Supreme Court of Wyoming
    • February 9, 2010
    ...§ 424 (1965); McLean v. Hyland Enters., Inc., 2001 WY 111, ¶ 25, 34 P.3d 1262, 1269 (Wyo.2001) (employee termination); Abeyta v. Hensley, 595 P.2d 71, 73 (Wyo.1979) (coemployee negligence); and Engen v. Rambler Copper & Platinum Co., 20 Wyo. 95, 121 P. 867, 874 (1912) (master's duty of care......
  • Jones v. Chevron U.S.A., Inc., 85-166
    • United States
    • United States State Supreme Court of Wyoming
    • May 1, 1986
    ...of the premises, had a duty to provide safe working conditions on its premises for employees of individual contractors. Abeyta v. Hensley, Wyo., 595 P.2d 71 (1979); and 41 Am.Jur.2d Independent Contractors § 27 (1968). I agree with that abstract principle, but there is no showing that Chevr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT