Jones v. Chevron U.S.A., Inc.

• Decision Date: 01 May 1986
• Docket Number: No. 85-166,85-166
• Citation: 718 P.2d 890
• Parties: Floyd Allen JONES and Norene Jones, Appellants (Plaintiffs), v. CHEVRON U.S.A., INC., Appellee (Defendant), James Bennion; William Jones; Jeff Trampis and Does 1 through 5 (Defendants).
• Court: Wyoming Supreme Court

Page 890

718 P.2d 890

Floyd Allen JONES and Norene Jones, Appellants (Plaintiffs), v. CHEVRON U.S.A., INC., Appellee (Defendant), James Bennion; William Jones; Jeff Trampis and Does 1 through 5 (Defendants).

No. 85-166.

Supreme Court of Wyoming.

May 1, 1986.

Rehearing Denied June 6, 1986.

Richard H. Honaker (argued) Rock Springs, and Jack A. Rose, Anaheim, California, for appellants, Robert W. Tiedeken of Terry W. Mackey, P.C., Cheyenne, filed an amicus curiae brief on behalf of the Wyoming Trial Lawyers Association.

Mark W. Gifford of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

CARDINE, Justice.

This is an appeal from a summary judgment granted Chevron U.S.A., Inc. in a suit brought by appellant Floyd Jones for electrocution injuries he suffered while painting a transformer platform owned by Chevron. There are several interrelated issues which demand our attention. At the outset, we must decide whether an owner of a work site has a duty to protect an employee of an independent contractor from hazards of the work site which are incidental to the very work the contractor is hired to perform. If we find that the owner owes such a duty, we must determine whether it runs to an employee who is harmed by obvious man-made hazards. Finally, we

must decide whether an owner can be vicariously liable to his contractor's employee for the contractor's negligent acts. This last issue involves the application of the special-risk doctrine of §§ 416 and 427 of the Restatement, Second, Torts. We reverse in part and affirm in part.

FACTS

On September 8, 1978, Chevron U.S.A., Inc. entered into a general service contract with Automation & Electronics, Inc. in which Automation agreed to

"[f]urnish labor, materials and equipment as needed to perform work as instructed by Chevron representatives."

The parties agreed that Automation would "perform the work as an independent contractor and not as an employee of [Chevron]." The contract also provided with respect to safety:

"Contractor agrees, while on [Chevron's] premises or vessels, to observe such safety rules as [Chevron] shall prescribe as necessary for the protection of personnel and property * * *."

In September 1980, pursuant to the 1978 general service contract, Chevron hired Automation to construct power lines running to some of Chevron's oil and gas wells near Evanston. Chevron provided the specifications for all the power line components and employed a surveyor who staked the locations for the power poles. Automation crews erected the power poles, installed insulators and other hardware, and strung the lines. The lines were then energized.

Appellant Floyd Jones had joined Automation as an apprentice electrician in August of 1980 and worked at the Chevron project since its inception in early September. He was a member of foreman William Jones' work crew. On October 10, 1980, appellant was instructed by his foreman to paint the metal portions of an H frame which the crew had completed in early October and which had been energized on October 3rd. The H frame consisted of two wooden power poles which were set about twenty feet apart and connected by a horizontal platform. The platform was a wooden deck supported by metal braces affixed about halfway up the poles. Two transformers rested on the platform and were wired to the main power lines which ran horizontally across the tops of the poles.

After appellant painted the metal under the platform, he climbed onto the platform to complete the job. Electricity arced from the transformers to appellant, coursed through his body and knocked him from the platform. He sustained serious injuries.

Appellant filed a complaint in the district court naming as defendants Automation & Electronics, Inc., Chevron U.S.A., Inc., his supervisors, several unnamed fellow employees, and several unnamed employees of Chevron. Automation was dismissed from the suit because of the bar of the Worker's Compensation Act. Chevron moved for summary judgment.

The affidavits and depositions in support of and in opposition to summary judgment disclose several disputes of fact. First, while it is clear that appellant's foreman and fellow crew members were present when appellant was ordered to paint the H frame, there is a dispute as to whether a Chevron engineer was on the scene. Appellant stated in his affidavit that he received instructions to paint the H frame right after he interrupted a conversation between his foreman and a Chevron engineer named either Bob or R.G. But, Chevron's lead project engineer, R.L. "Bob" Kiyoi, stated in his affidavit:

"To the best of my recollection, I was not at the job site at the time of Floyd Jones' injury."

Appellant's foreman testified in his deposition that he did not remember any Chevron personnel being present.

There is also some dispute over what was said. In his deposition, appellant's foreman testified that he told the crew "to go up the poles and paint as far as they could reach." He also recalled telling them to paint the part they could not reach "out of the bucket truck." But in his affidavit There is little dispute in the summary judgment materials about the procedure for de-energizing the power lines. Automation could de-energize lines only after obtaining permission from Chevron. Appellant's supervisor did not request a shutdown before he ordered the painting to proceed because it would have taken about an hour to get permission from Chevron's well operators.

                appellant indicated that the instructions were less specific and led him to believe that he could safely paint the entire platform without the bucket truck.  He claims that he asked his foreman, within the hearing of the Chevron engineer, whether the H frame was "ready for [them] to go up."   According to appellant, his foreman told him it was ready, and another foreman told him "everything is clear."   He assumed from his conversations with his foreman and the silence of the Chevron engineer that the power was off
                

Based on the affidavits, depositions and other summary judgment materials before it, the district court found that Chevron owed appellant no direct duty of reasonable care. The court held:

a. that, as a matter of law, owners "are not obligated to protect employees of an independent contractor * * * from hazards which are incidental to or a part of the very work the independent contractor was hired to perform";

b. that an owner's duty to discover and warn his invitees of dangers on the premises does not extend to employees of an independent contractor who suffer physical harm "caused by a special danger encountered * * * while engaged in the performance of inherently dangerous work";

c. that appellant's employer was an independent contractor;

d. that, as a matter of fact, the dangers of the transformer tower were obvious to appellant. Therefore, the obvious-danger rule barred his recovery as a matter of law; and

e. that Chevron could not be vicariously liable for Automation's negligence because Automation was Chevron's independent contractor not its employee; that the special-risk doctrine of § 416 of the Restatement, Second, Torts, which prevents an owner from delegating its duty of care to an independent contractor under some circumstances, did not apply because, according to the court, the doctrine had not "been adopted or approved by the Wyoming Supreme Court [and] is not the law of Wyoming * * *."

SUMMARY JUDGMENT

"When reviewing a summary judgment on appeal, our duty is the same as that of the district court in that we have before us the same material and must follow the same standards. The party moving for summary judgment has the burden of proving there exists no genuine issue of material fact and that [he] is entitled to judgment as a matter of law. We look at the record from the viewpoint most favorable to the party opposing the motion, giving him every favorable inference which may be drawn from facts in the affidavits, depositions, and other material properly submitted in the record." (Citations omitted.) Noonan v. Texaco, Inc., Wyo., 713 P.2d 160, 162 (1986).

DUTY OF OWNER TO INVITEE

An owner may be liable to a worker who is injured on the owner's premises under either of two theories. First, the owner may be responsible for the negligence of the worker's employer under the doctrine of respondeat superior. Second,

"quite apart from any question of vicarious responsibility, the employer may be liable for any negligence of his own in connection with the work to be done. * * * So far as he in fact gives directions for the work, furnishes equipment for it, or retains control over any part of it, he is required to exercise reasonable care for the protection of others * * *. If the work is done on the employer's own land, he will be required to exercise reasonable care to prevent activities or conditions which are dangerous to those outside of Appellant claims that Chevron is liable under both theories in the case at bar. We will first analyze his claim that Chevron was directly responsible for his injuries.

                it, or to those who enter it as invitees.  In all of these cases, he is liable for his personal negligence, rather than that of the contractor."  (Footnotes omitted.)   W. Keeton, Prosser and Keeton on Torts § 71 at 510-511 (1984).  See also Ruhs v. Pacific Power & Light, 671 F.2d 1268, 1272 (10th Cir.1982) (applying Wyoming law)
                

Appellant argues that he was an invitee and that Chevron, therefore, owed a duty to protect him from the dangerous condition of its premises and the dangerous acts and omissions of its employees. He alleges that Chevron's premises were unsafe because Chevron made it difficult for Automation to shut the power off while work went forward on the power lines and that Chevron was negligent when its engineer at the scene of the accident neither warned appellant that the power was on nor ordered that...