Gulf Oil Corporation v. Bivins

• Decision Date: 09 May 1960
• Docket Number: No. 17843.,17843.
• Citation: 276 F.2d 753
• Parties: GULF OIL CORPORATION, Appellant, v. Kenneth C. BIVINS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

276 F.2d 753 (1960)

GULF OIL CORPORATION, Appellant, v. Kenneth C. BIVINS, Appellee.

No. 17843.

United States Court of Appeals Fifth Circuit.

April 1, 1960.

Rehearing Denied May 9, 1960.

Max N. Osborn, William L. Kerr and James T. Smith, Midland, Tex.; Turpin, Kerr, Smith & Dyer, Midland, Tex., of counsel, for appellant.

Clarence E. Keys, Warren Burnett, Odessa, Tex., for appellee.

Before CAMERON, JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

Plaintiff Kenneth C. Bivins was employed as an oilfield roustabout by O. R. White, referred to as Ray White, who operated as White Well Service, in the business of reworking oil wells. Part of White's work was done for the defendant, Gulf Oil Corporation, under a written contract. Bivins was part of a White Well Service crew dispatched by Ray White to pull the tubing, change flow valves, check the packer and check for cave-ins on a Gulf well in Ward County, Texas. Mr. White acted pursuant to a work order received from Gulf's local production foreman. By custom and under the terms of the contract, Gulf told Mr. White that work needed to be done on a given well but the details of performance and supervision were left up to White.

The crew of which Bivins was a member arrived at the well site about 3:30 P. M. on March 2, 1956, and began erecting the mast on the pulling unit and disconnecting the well from incoming gas injection lines and outgoing flow lines. The well was then bled so that all gas in the casing could escape. This bleeding process went on for thirty minutes to insure that all the gas had escaped.

After the gas had been bled off, Bivins started to remove the flange from the casing head. To do this he had to go down in a cellar in which the christmas tree was located. This cellar was eight feet deep and eight feet on each side. It was walled with wooden planking and covered with 3 × 12 timbers. Some of the covering timbers were removed by the crew to allow entrance to the cellar. There being no ladder available, Bivins climbed down the christmas tree and began loosening the bolts on a flange. He called up to the surface for another tool. While he was waiting for it to be handed down to him, there was an explosion and fire in the cellar and Bivins was badly burned.

After recovering workmen's compensation, Bivins brought this action against Gulf. A jury trial was had with the verdict and judgment for Bivins. Gulf prepared its brief in keeping with the Texas state court practice setting forth and then restating, as points, its several specifications of error. Bivins, in his brief, countered with counterpoints and in them stated the converse of the points set forth by Gulf. In turn, Gulf filed a reply brief with seriatim replies to Bivins' counterpoints. Bivins then, in a supplemental brief, reiterated and reargued his counterpoints.

The explosion which injured Bivins apparently resulted from the ignition of gas which somehow got into or remained in the cellar after the bleeding of the casing pressure. The igniting flame came, it might be inferred, from iron sulphide contained in the gas in the well. Iron sulphide sometimes forms into flakes inside a well and, on being exposed to the air, begins to smolder and burn. Although Gulf did not know to a certainty that the well in question had an iron sulphide condition, it did know that there was a possibility that the well was so affected. Gulf, through an employee, had warned Ray White that wells in this area were suspected of containing iron sulphide. Both Gulf and White, on the day of the accident, warned the chief of Bivins' crew to watch for such a condition on the well in question. This warning was not directly communicated to Bivins.

The trial court instructed the jury that if Gulf failed to warn Bivins of the dangerous condition, and this failure was negligence, and a proximate cause of Bivins' injuries, Gulf would be liable for the damages suffered by Bivins.¹ Gulf requested an instruction which would have absolved it of liability if it were found that Gulf had warned Bivins' employer of the condition. The request was refused and this refusal is assigned as error.

At this point it may be observed that an owner or occupier of property is not liable for injury to the employee of an independent contractor or sub-contractor in the absence of negligence on the part of the owner or occupier which caused or contributed to the injury. Humble Oil & Refining Co. v. Bell, Tex.Civ.App., 180 S.W.2d 970; Union Tank & Supply Co. v. Kelley, 5 Cir., 1948, 167 F.2d 811. It is sometimes said that the owner or occupier is under a duty to furnish a safe place to work for the employee of the independent contractor. This statement is too broad and is an oversimplification of the principle. More accurately phrased, the rule requires the owner or occupier to exercise ordinary care to keep the premises in a reasonably safe condition so that the employee will not be injured. Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853. Even as so stated, the rule is subject to qualifications as will be noted.

Whether or not there is responsibility for the condition of the place of work may depend upon the control of the premises and the control over the conduct of the work by the person against whom liability is asserted. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99; Houston Pipeline Co. v. Peddy, Tex.Civ.App., 292 S.W.2d 364; Sunray Oil Corporation v. Allbritton, 5 Cir., 1951, 187 F.2d 475, rehearing denied 5 Cir., 188 F.2d 751, certiorari denied 342 U.S. 828, 72 S.Ct. 51, 96 L.Ed. 626; Gulf Oil Corporation v. Wright, 5 Cir., 1956, 236 F.2d 46. It has been said that in the absence of control there is no duty. Nance Exploration Co. v. Texas Employers' Insurance Association, Tex. Civ.App., 305 S.W.2d 621, certiorari denied Flowers v. Nance Exploration Co., 358 U.S. 908, 79 S.Ct. 235, 3 L.Ed.2d 229. The district court here assumed, in its charge to the jury, that Gulf retained such control as cast upon it the obligation of an owner or occupier, although the question of control was not mentioned in the charge. However, Gulf did not, in this case, retain control of the premises and had no representative present at the site of the work. In this respect the situation differs from that in the Allbritton and the Wright cases, and it will be noted that in the latter case one of the judges of this Court in a specially concurring opinion, thought the control was not such as to create liability. In the Nance case Gulf Oil Corporation was the lessee of the owner and it had entered into an agreement for exploration work with an independent contractor which, in turn, made an agreement for a part of the work with a sub-contractor whose employee was injured. There the court directed a verdict for Gulf which had an oil and gas lease from the landowner as it has in this case.

The statement in the Nance case that in the absence of control there is no duty perhaps went beyond the necessities of that case and may be subject to qualification even though it be a good statement of the general rule. There is a distinction between an unsafe condition incident to or resulting from the work to be done and an unsafe condition inhering in the premises where it is to be done. We think it would be an unsound rule that would relieve the owner or occupant of liability for a concealed or latent condition of danger not incident to the work to be done, merely by surrendering control to an independent contractor. This distinction is pointed out in Moore v. Texas Company, Tex.Civ. App., 299 S.W.2d 401. There it was held that the owner of the premises where work is to be done is under no duty to the employee of an independent contractor to give him warning of transitory dangers which might arise during the performance of the work, but the court recognized that there might be such a duty where the danger arose from the condition of the premises. The owner or occupier of premises has a duty to warn the employee of an independent contractor of hidden or inherent dangers. Smith v. Henger, supra; Roosth & Genecov Production v. White, supra. Gulf, as lessee of the premises, stands as an owner or occupier of the premises in its relation to White and Bivins. The duty of the owner or occupant does not extend to the employees of the sub-contractor who know or should know of the existence of a particular condition and who appreciate or should appreciate its dangers. Robert E. McKee v. Patterson, supra.

The liability of the owner or occupier of the premises which harbors a latent, concealed, or inherent defect, to the employee of an independent contractor is not absolute and unconditional. It may be discharged by a warning. As set forth in the Restatement,

"A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he

"(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and

"(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and "(c) invites or permits them to enter or remain upon the land without exercising reasonable care

"(i) to make the condition reasonably safe, or

"(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services they are entitled to receive, if the possessor is a public utility." Restatement, Torts § 343.

This section of the Restatement has had judicial approval in Smith v. Henger, supra; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; and Gulf Oil Corporation v. Wright, supra. We do not understand that Bivins contends that Gulf could not have discharged any duty it may have had to him by a warning. It is his contention...