Brebaugh v. Hales

Citation788 P.2d 1128
Decision Date15 March 1990
Docket NumberNo. 89-67,89-67
PartiesJ.W. "Jack" BREBAUGH, Appellant (Plaintiff), v. Kerry HALES; William Beisner; James Freeman; and Dravo Coal Company, a Delaware corporation, Appellees (Defendants).
CourtUnited States State Supreme Court of Wyoming

J. Douglas McCalla of Spence, Moriarity & Schuster, Jackson and Kennard F. Nelson of Kirkwood, Copenhaver & Nelson, Laramie, for appellant.

Patrick Dixon of Murane & Bostwick, Casper and John A. MacPherson of Johnson, MacPherson & Noecker, Rawlins, for appellees.

Stanley K. Hathaway of Hathaway, Speight & Kunz, Pamela L. Jacklin and Tracy Pool Reeve of Stoel, Rives, Boley, Jones & Grey, Portland, Or., for amicus curiae, Bridger Coal Co.


GOLDEN, Justice.

J.W. "Jack" Brebaugh (Brebaugh) received injuries on January 6, 1986, while working on a "splicing" procedure on a conveyor belt in an underground coal mine near Hanna, Wyoming. He was employed by Carbon County Coal Company (CCCC), a Colorado general partnership formed by partners Dravo Coal Company (Dravo), a Delaware corporation, and Rocky Mountain Energy Company (RMEC), a Utah corporation.

Although Brebaugh received an award under the provisions of the Wyoming Worker's Compensation Act through CCCC's account as a contributing employer, he filed a tort action against Dravo and four supervisory co-employees, seeking to recover money damages for his personal injuries. He appeals from the district court's order dismissing Dravo under W.R.C.P. 12(b)(6), and from that court's order granting summary judgment for three of his co-employees. 1

We affirm.

The parties agree that the issues are as Brebaugh has stated them: 2

I. Did the district court err in granting summary judgment to the co-employee defendants when there existed a genuine issue of material fact concerning culpable negligence?

II. Did the district court err in failing to allow plaintiff to conduct proper voir dire relative to worker's compensation benefits?

III. Is a corporation-partner who takes on independent duties under a separate management contract with the partnership to be considered an "employer contributing as required by law" under the Wyoming Constitution and statutes so as to acquire immunity under the Worker's Compensation Act from suit by an employee of the partnership?


In CCCC's mining operation a main conveyor belt carried the mined coal from underground uphill to the surface. The main conveyor belt consisted of three sections designated as U-1, U-2, and U-3. The U-2 belt, on which Brebaugh was working when injured, was fifty-four inches wide and about 2,000 feet long, weighing at least ten pounds or more per foot. Resembling in general appearance an elongated rubber band, the belt rested on a conveyor frame suspended from the ceiling of the mine shaft. The bottom portion of the belt loop was about six to seven feet above the sloping ground. The belt was a series of sections fastened together by mechanical fasteners. The mechanical fastener was held together by a pin inserted through the fastener.

On occasion CCCC eliminated a mechanical fastener. To do this, CCCC "spliced" the affected belt section. The objective in the "splicing" procedure was to separate the belt at the designated belt section, cut out the mechanical fastener, add more belt if necessary, overlap the loose ends of the belt, and melt together those loose ends by means of a heating device; this last step is called "vulcanizing." CCCC had available for use a manual, Royalon Vulcanized Splicing Manual, which contained instructions to keep clamps on the belt at all times while making a splice and to keep tension on all of the belt, except for that part of the belt being spliced. With this general orientation in mind, we turn our attention to the facts and circumstances leading up to and surrounding the accident in question.

The accident happened January 6, 1986, several hours into the "graveyard" shift, 12 midnight to 8:00 a.m., the shift Brebaugh worked. At the start of that shift, appellee Hales, CCCC's general foreman in charge of the work, assigned appellee Beisner, a section foreman, to work on splicing the U-2 belt at a location previously identified by Paul Kehrer, the foreman on the previous shift. Since Beisner had little or no experience with this procedure, Hales considered his assignment as a training exercise. Hales assigned Brebaugh, Hassel, Cook, and Schriner as crew members under Beisner. Hales chose these crew members based on their prior experience in the mine and with conveyor belts. Although Brebaugh had no prior experience splicing U-belts, he had prior experience splicing smaller section belts. Although modest about his experience, Brebaugh testified that as a production belt man of five years' experience he was probably the best trained person at CCCC with respect to operation, repairs, and maintenance of section belts. Hassel had vulcanized U-belts about ten times and had both classroom instruction and on-the-job training on the procedure. Cook had received on-the-job training on vulcanizing or splicing U-belts at CCCC and had performed the procedure about three times. Schriner had also received classroom instruction and on-the-job training on the vulcanizing and splicing procedure; he had performed the procedure on U-belts three or four times.

Hales asked appellee Freeman, a shift foreman, who had regularly assigned duties in another section of the mine, to take Brebaugh's crew to the designated work area, determine whether enough slack in the belt existed to permit a splice, and report his finding to Hales. Freeman took the crew to the area where the vulcanizing station was set up. They found that the U-2 belt was not centered properly. They worked for several hours trying to pull down slack in the belt using three-ton chain come-alongs. They were not able to pull down any slack. Freeman called Hales and told him they did not have enough slack to make the splice.

Hales told Freeman to go uphill to a fifty-foot section of belt located above the belt drive mechanism and add that section to the belt. Freeman passed that information on to Beisner. According to Hales, that fifty-foot section had been placed there some time previously in expectation of having to add it into the belt at a later date. Hales believed that in late 1984 sections of belt had been added to the U-2 belt at that same location. He believed that three supervisors had been in that area during that operation. The crew then moved their equipment, including come-alongs and clamps, uphill to the location designated by Hales. Freeman told them they were to put the clamps on the belt, pull the pin, and insert the fifty-foot section of belt. Freeman then left to perform his regularly assigned duties in another section of the mine.

At the designated location the crew put clamps on each side of the belt. Hassel and Brebaugh worked on one side of the belt; Cook and Schriner worked on the other. Working on the bottom loop portion of the belt, the crew put clamps both downhill and uphill from the spot on the belt section where the splice was to be made. Attaching the come-alongs to the clamps, they took up the slack until the belt dropped a little where they could remove the pins. After they removed the pins At this point in the operation, Hassel and Brebaugh discussed the substantial tension remaining on the uphill section of belt. According to Brebaugh, Hassel was in charge. As they were discussing what to do, Hales arrived at their work area. He asked them if they needed belt pins, and Brebaugh answered they needed two. Then Brebaugh asked Hales, "What are we going to do about that upper belt?" Hales replied, "Well, you can take the clamp off and it'll drop to the ground." That was the substance of their conversation. Hales was there only a minute or so and he left. Hales testified that he left to attend to another work matter but intended to return to the splicing operation. He thought Brebaugh's crew would take a break and he would be back to their area before they were further along in their work. According to Hales, before he visited the work site he had considered that it was possible the uphill belt end could run because it was taut. After visiting the site and seeing the belt, he concluded there was enough slack in the belt so that the belt would not run when the clamps were released.

they loosened the come-alongs on the downhill side of the splice. They removed the downhill side come-alongs and clamp, allowing the downhill section of the belt to drop to the ground.

After Hales left, Hassel and Brebaugh again discussed the tension on the belt. Brebaugh was concerned about the tension because they were above the belt drive mechanism. He had concern for the equipment, but it never entered his mind that if the belt started running there was danger to human safety. He testified, "I did not foresee an unsafe condition there. * * * If I would have foreseen a possibility, I wouldn't have been there."

About five or ten minutes later, Beisner came to their location. According to Brebaugh, Beisner stayed a "very, very small period of time." While there, Beisner was asked by Brebaugh what they should do about the clamp on the belt. According to Brebaugh, Beisner echoed Hales' earlier remark, namely, remove the clamp and the belt would drop to the ground. Beisner was unaware of the possibility of the belt coming free and running loose. Beisner left to get some belt pins. He thought he would return before the crew's work went much further.

After Beisner left, Hassel and Brebaugh again discussed removing the clamp. According to Brebaugh, Hassel asked him, "What do you think we should do?" Brebaugh answered, "Hell, I don't know." Hassel then said, "Well, they told me to take the clamp off." Brebaugh then said, "Well, I'm not going to take it off." Brebaugh testified he was not going to remove the clamp because h...

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