Bettencourt v. Pride Well Service, Inc.

• Decision Date: 17 April 1987
• Docket Number: No. 86-43,86-43
• Citation: 735 P.2d 722
• Parties: (Plaintiffs), v. PRIDE WELL SERVICE, INC., a Texas corporation; Larry Welch, supervisor for Pride Well Services, Inc., Thatcher & Sons, Inc., a Wyoming corporation; Phillips Petroleum Company, a Delaware corporation; John Doe Corporations I through XX; and John Does I through XXX, Appellees (Defendants). Supreme Court of Wyoming
• Court: Wyoming Supreme Court

Page 722

735 P.2d 722

Rick Carl BETTENCOURT and Kelly Bettencourt, husband and wife, Appellants (Plaintiffs), v. PRIDE WELL SERVICE, INC., a Texas corporation; Larry Welch, supervisor for Pride Well Services, Inc., Thatcher & Sons, Inc., a Wyoming corporation; Phillips Petroleum Company, a Delaware corporation; John Doe Corporations I through XX; and John Does I through XXX, Appellees (Defendants).

No. 86-43.

Supreme Court of Wyoming.

April 17, 1987.

Kenneth R. Marken and James T. Anest of Marken & Anest, Casper, and Gordon W. Jenkins of Ririe, Lee & Jenkins, Idaho Falls, Idaho, for appellants.

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

Jeffrey C. Brinkerhoff and Tim I. Munson of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellee Thatcher.

Richard L. Williams, Frank D. Neville, and Richard E. Day of Williams, Porter, Day & Neville, P.C., Casper, for appellee Phillips.

Before BROWN, C.J., THOMAS, URBIGKIT and MACY, JJ., and GUTHRIE, J., Retired.

THOMAS, Justice.

The question which we must address in this case is whether a summary judgment appropriately may be entered against an injured person who is afflicted with traumatic amnesia and for that reason is unable to specify what act or omission caused his injury. The district court held that there was no genuine issue of material fact in this case and that the several defendants were entitled to summary judgment as a matter of law because proximate cause, one of the elements of a cause of action for negligence, could not be established through the testimony of the injured person or others. The district court concluded that in the absence of such evidence causation became a matter of speculation or conjecture. We conclude that there is present a genuine issue of material fact relating to causation which arises out of permissible inferences to be drawn by the finder of fact. The summary judgment for defendants is reversed.

Rick Bettencourt was injured when he fell while attempting to descend a ladder on an oil storage tank located in Converse County, Wyoming. He brought this action to recover damages for his injuries, and his wife, Kelly, joined in the action to recover damages for loss of consortium. The named defendants were Bettencourt's employer, Pride Well Service, Inc., his immediate supervisor, Larry Welch, the manufacturer of the oil storage tank, Thatcher & Sons, Inc. (Thatcher), and the lessee of the oil storage tank, Phillips Petroleum Company (Phillips). Pride Well Service, Inc., was dismissed from the action, and following discovery, which included the depositions of Bettencourt and his fellow worker, Steve McGowen, the remaining defendants moved for summary judgment. The district court granted summary judgment to the several defendants, and after their motion to reconsider the grant of the summary judgment was denied, the Bettencourts appealed.

In their brief, the Bettencourts set forth the issues as:

"A. Did the appellees sustain their burden of showing the absence of genuine issues of material fact concerning the causation of appellants' injuries?

"1. What were the appellees' duties to exclude the controverted allegations of appellants' pleadings?

"2. What were the appellants' duties to contravene appellees' motions for summary judgment?

"B. In the absence of direct, eye-witness testimony concerning causation, are the appellants precluded from proving causation via circumstantial evidence on the grounds that such evidence would require speculation by the jury?

"C. Did the lower court err in denying appellants' 'Motion to Reconsider Defendants' Motions for Summary Judgment?' "

The several appellees submitted different expressions of the issues in their briefs. Welch stated the following:

"A. Did the District Court err in granting Larry Welch's motion for summary judgment?

"B. Did the District Court err in denying plaintiff Bettencourt's motion under Rule 59 of the Wyoming Rules of Civil Procedure?"

Phillips adopted Welch's first issue, but stated the second issue to be:

"B. Did Plaintiff Bettencourt fail to meet his burden of proving the existence of a genuine issue of material fact with respect to the proximate cause of his injury?"

Thatcher submitted the following statement of the issues:

"A. Did the trial court correctly find that there was no genuine issue of material fact and that Thatcher & Sons, Inc. was entitled to summary judgment as a matter of law?

"B. Is the trial court's denial of appellants' Rule 59 'Motion to Open, Alter or Amend the Order Granting Summary Judgment, and to Reconsider Defendants' Motions for Summary Judgment' a final appealable order?"

There appears to be no dispute as to the operative facts preceding and surrounding Bettencourt's fall so far as they are known. On November 16, 1983, Bettencourt was celebrating his birthday. He was contacted by Welch and told to come to work that evening. Bettencourt was reluctant to go in to work because he had been drinking, but he agreed to after Welch informed him that he would only be required to write down flow measurements taken from an oil tank which would be relayed to him by another employee. Welch told him that he would not need his work clothes or boots because of the limited nature of his assignment. Bettencourt went to the work office where he was introduced to Steve McGowen, the fellow employee who was to take the measurements from the oil tank. Bettencourt and McGowen were told the location of the tank from which they were to be taking the measurements that night and that other workers on the scene would demonstrate for them the proper procedure to be followed in gauging the flow of the tank. The record indicates that neither of them were familiar with that procedure.

Bettencourt and McGowen proceeded to the work site, and by the time they arrived, it was dark, cold and windy. The workers from the preceding shift instructed McGowen with respect to the proper procedure in gauging the flow from the oil tank which included a requirement of an hourly reading throughout the 12-hour shift. In order to accomplish the gauging, one was required to climb a large 400-barrel oil storage tank, walk across the top of that tank to a second tank where the measurement of the flow of oil in the second tank was to be taken, and then return by the same path. One person could perform this gauging operation, but Bettencourt decided to accompany McGowen in order to learn the procedure. They completed the gauging measurement process in the first hour without incident. After they had taken the reading in the second hour and were returning to the ground, Bettencourt apparently fell from the ladder used in climbing to the top of the tanks and suffered serious injuries.

One aftereffect of Bettencourt's injuries is amnesia which prevents him from recalling any of the events of that night from the time he left the work office until he woke up in the hospital. Consequently, when his deposition was taken, Bettencourt could not state what had happened at the scene. The information concerning the events at the time of his injury comes from McGowen's deposition. McGowen testified that Bettencourt had gone with him to the top of the first oil tank, crossed over to the second oil tank where the required measurements were taken, and they then were returning to the ground at the time of the accident. There was no lighting at the tank site, and the only light available to make the journey up the ladder and across the tanks was flashlights. Because only one flashlight was carried to the top of the tanks, it was necessary for McGowen to light Bettencourt's path from the second tank across the first tank back to the ladder. McGowen was able to see Bettencourt reach the ladder on the first tank and begin his descent. McGowen then shifted the light beam to illuminate the path for his own walk across the second tank to the ladder. When McGowen reached the ladder on the first tank, he shined the beam from the flashlight on the ground below the ladder where he saw Bettencourt lying on the ground bleeding.

The surface of these oil tanks was smeared with oil and was slippery, and dirt had been spread across the first tank to the second to alleviate that condition. The ladder for ascending and descending the first tank had only one handhold at the top on the left side which consisted of a four-inch pipe which was difficult to grasp. McGowen testified that previously he had slipped on the same ladder himself and that, before descending, he wrapped his arm around the pipe because it was difficult to hold onto with his hand.

The theories of recovery alleged in the complaint were that Welch was culpably negligent in failing to adequately instruct and supervise Bettencourt with respect to the assigned task. Thatcher, it was alleged, had negligently designed and constructed the oil storage tank, including the ladder. The complaint charged Phillips with negligence in failing to provide a safe place to work alluding not only to the unsafe features of the constructed oil storage tank but also to the slippery surface and the failure to provide artificial lighting. Additionally, the complaint alleged that Phillips and Thatcher both were strictly liable as the providers of a defective product. After the issues were joined, depositions were obtained from Welch, McGowen and both of the Bettencourts.

Welch, Phillips and Thatcher moved for summary judgment arguing that there existed no issue of material fact and that each of them was entitled to judgment as a matter of law. In granting the several motions for summary judgment, the trial court decided that the Bettencourts had failed to meet their burden of proof as to causation. The district court concluded that, since it demonstrably was impossible for the Bettencourts to offer evidence which would specify the causative factor or factors, the several defendants were entitled to judgment as a matter of law. ...