Bryant v. Gulf Oil Corp.

• Decision Date: 19 June 1985
• Docket Number: No. 07-84-0047-CV,07-84-0047-CV
• Citation: 694 S.W.2d 443
• Parties: Barry Max BRYANT, Appellant, v. GULF OIL CORPORATION, et al., Appellees.
• Court: Texas Court of Appeals

Page 443

694 S.W.2d 443

Barry Max BRYANT, Appellant, v. GULF OIL CORPORATION, et al., Appellees.

No. 07-84-0047-CV.

Court of Appeals of Texas,

Amarillo.

June 19, 1985.

Rehearing Denied July 31, 1985.

B.D. Geeslin Law Office, C. Ed Carrithers, Brady, Terry P. Ayre, Webster, for appellant.

Gibson, Ochsner & Adkins, A.B. Hankins, Morris, Moore, Dalrymple, Moss & Dyson, Charles E. Moss, Amarillo, for appellees.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

BOYD, Justice.

Appellant Barry Max Bryant (Bryant) brings this appeal from a summary judgment in favor of appellee Gulf Oil Corporation (Gulf). We affirm the judgment of the trial court.

The suit giving rise to this appeal was one seeking recovery for personal injuries. The nature of the appeal requires a resume of the summary judgment evidence. Bryant was a member of a three-man crew which was employed by Flint Engineering Company (Flint). On June 15, 1981, Gulf had employed Flint to perform some well repair on KSAM No. 3-10, a well situated upon a lease owned by Gulf. The well repair, which was performed by Bryant's crew, necessitated the use of a mobile oil well workover unit.

The workover unit consisted of a truck chassis with a cable operated gin pole attached to the rear. When the unit was in motion, the gin pole rested on the truck parallel to the ground. When working a well, the pole was raised and could be telescoped to a height of approximately sixty feet. The overall length of the unit, with the pole parallel to the ground, was approximately forty-one feet.

The crew reported to KSAM No. 3-10 on June 15, 1981 to perform the repair work. The Greenbelt Electric Cooperative, Inc. had constructed a high voltage electrical transmission line across the land upon which the well was drilled. The nearest wire was located some forty-nine to fifty-six feet from the wellhead. Upon arrival at the well on June 15, 1981, Richard Ratliff, Bryant's foreman, backed the unit over the well, raised the gin pole and commenced the repair. Appellant testified, with reference to the highline, "Oh, I'm sure we probably noticed it." The repair work was finished on the afternoon of June 17, 1981. During the work, a break had occurred on the crown of the gin pole which necessitated the services of a welder. Ratliff left the well site to meet the welder and show him the way to the well location. During Ratliff's absence, Bryant moved the workover unit sixteen feet away from the well. When Ratliff returned, he scoped the gin pole to its lowest height of thirty feet. He then started lowering the gin pole to its resting position on the unit. As the pole was being lowered, Bryant was holding a steel cable which was attached to It is also necessary to note the history of the well and highline in question. The lease was executed on December 3, 1932, by T.J. D'Spain and wife Lena M. D'Spain to J.A. Batson. The well in question was completed on June 19, 1934. On December 2, 1948, Lena D'Spain, the owner of the real estate at that time, granted an easement to the Greenbelt Electric Cooperative, Inc. The easement granted Greenbelt the right to "place, construct, operate, repair, maintain, relocate and replace thereupon ... an electric transmission or distribution line or system...." The highline was constructed in 1956. Gulf acquired the lease under which the well is operated on July 1, 1978. The access road to the well has remained in its present location since the completion of the well.

the end of the gin pole and served as a guide in lowering it. When Ratliff lowered the gin pole, it came into contact with the highline and electricity came down the line to Bryant, causing the severe injuries which are the subject of this suit.

In summary judgment cases, the judgment granted should be affirmed only if the record establishes a right thereto as a matter of law and the movant establishes that he is entitled to the judgment by reason of the matters set out in the motion. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Harrington v. Young Men's Christian Ass'n of Houston, 452 S.W.2d 423, 424 (Tex.1970); Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). The burden of demonstrating the lack of a genuine issue of material fact is upon the movant and all doubts are resolved against him. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 235 (1956); Durham v. Cannan Communications, Inc., 645 S.W.2d 845, 852 (Tex.App.--Amarillo 1982, writ dism'd). Thus, in order to prevail on summary judgment, a defendant must conclusively disprove the plaintiff's cause of action or he must establish one or more of his defenses as a matter of law. Fulenwider v. City of Teague, 680 S.W.2d 582, 584 (Tex.App.--Waco 1984, no writ).

In four points, Bryant asserts that the trial court erred in granting the summary judgment because material issues of fact existed as to whether: (1) the transmission line located forty-nine feet from the wellhead constituted a dangerous condition of which Bryant was aware; (2) Bryant's conduct was reasonable even if he had actual knowledge of the existence of the transmission line; (3) the transmission line was an open and obvious hazard existing prior to Bryant's entry onto the premises and (4) regular safety inspections at the wellhead site by Gulf's production supervisors created a duty on Gulf concurrent with that of Bryant's employer to oversee the safety of the work operations, which Gulf failed to do.

It is axiomatic that in order to establish tort liability on the part of a defendant, a plaintiff must prove the existence and violation of a legal duty owed him by that defendant. Coleman v. Hudson Gas and Oil Corporation, 455 S.W.2d 701, 702 (Tex.1970). That basic concept was not changed by the court's decision in Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). Prior to Parker, a plaintiff was not only required to establish a duty owed and violation of that duty by a defendant but he must additionally "prove the absence of his own subjective knowledge and appreciation of any danger," i.e., to negate "no duty." Id. at 516. The Parker court abolished the additional requirement but did not change the underlying obligation to establish a duty on the part of a defendant and a violation of that duty. See Dixon v. Van Waters and Rogers, 682 S.W.2d 533 (Tex.1984). Gulf contends that "under the undisputed facts in this case there is no evidence to prove the existence and violation of a legal duty" owed to Bryant by Gulf.

The general rule applicable to owner/occupier situations such as here existent is that such an owner/occupier is not an insurer, and where an individual's injury arises out of the performance of work for The first such exception exists when a defendant is an occupier of land and the plaintiff is an invitee: such a defendant owes a duty to exercise ordinary care to maintain the premises in a reasonably safe condition or to warn the invitee of any dangerous conditions which the occupier knows or should know about and which are not reasonably apparent to the invitee. Sun Oil Co. v. Massey, 594 S.W.2d 125, 128-29 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.). The rationale for the occupier's duty in this situation is the occupier's superior position to know of or to discover hidden or dangerous conditions on his premises. Shell Chemical Co. v. Lamb, 493 S.W.2d at 747. It is upon this exception that Bryant places primary emphasis.

                which an independent contractor is employed and while that activity is being conducted by and under the control of that contractor, the duty to protect the employees of the contractor is that of the contractor and not of the owner/occupier.   Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976);  Shell Chemical Company v. Lamb, 493 S.W.2d 742, 746 (Tex.1973).  However, there are two exceptions to this general rule, upon which Bryant predicates his claim as to Gulf's liability
                

In support of his argument, Bryant emphasizes: (1) the proximity (forty-nine feet) of the highline to the wellhead; (2) the size of the workover unit (forty to forty-five feet long, with a gin pole, scoped down, thirty to thirty-five feet long) and (3) Gulf's maintaining only one way of ingress and egress to the well, requiring the workover rig to position itself directly perpendicular to the transmission line during workover operations and scope down procedure. This was especially dangerous, he says, because in order to scope down the gin pole, the rig had to be moved five to six feet toward the transmission line. That necessity made the shutting down procedure more dangerous than the setting up procedure, he continues, since the gin pole would certainly come within ten feet of a transmission line. The cumulative effect of all of this, Bryant reasons, is to at least establish fact questions as to Gulf's knowledge of a dangerous condition not readily apparent to its invitee, which would give rise to a duty to exercise ordinary care to maintain the premises in a safe condition or to give reasonable warning of the condition to an invitee. Ancillary thereto would be the question of whether Gulf failed to exercise the requisite degree of care.

The existence of a legal duty under a given statement of facts and circumstances is essentially a question of law for the court. Gray v. Baker & Taylor Drilling Co., 602 S.W.2d 64, 65 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.) (opinion on motion for rehearing). In this case, it is uncontroverted that the transmission line was constructed by Greenbelt under an easement which allowed it to determine the location of the line. The line was constructed twenty-two years after the drilling of KSAM No. 3-10 and, ironically, twenty-two years prior to the time that Gulf acquired its leasehold right. There had been no other accidents of this nature and no such personal injuries during Gulf's tenure. The transmission...