Kristianson v. Flying J Oil & Gas, Inc.

• Decision Date: 03 September 1996
• Docket Number: No. 950363,950363
• Citation: 553 N.W.2d 186
• Court: North Dakota Supreme Court
• Parties: John KRISTIANSON and Donna Kristianson, Plaintiffs and Appellants, v. FLYING J OIL & GAS, INC., a corporation, Defendant and Appellee. Civil

Page 186

553 N.W.2d 186

John KRISTIANSON and Donna Kristianson, Plaintiffs and Appellants, v. FLYING J OIL & GAS, INC., a corporation, Defendant and Appellee.

Civil No. 950363.

Supreme Court of North Dakota.

Sept. 3, 1996.

Ronald A. Reichert (argued), of Reichert, Buresh, Herauf & Ficek, P.C., Dickinson, for plaintiffs and appellants.

Scott K. Porsborg (argued), of Smith Bakke Hovland & Oppegard, Bismarck, for defendant and appellee.

MESCHKE, Justice.

John and Donna Kristianson appealed from a summary judgment dismissing their tort action against Flying J Oil & Gas [Flying J] for injuries sustained by John Kristianson. Because we conclude Flying J owed no duty to Kristianson, we affirm.

Flying J owned an oil well in Dunn County, North Dakota. This particular well, as well as the surrounding formation, contained a high concentration of hydrogen sulfide [H sub2 S] gas. There were numerous signs on the well site warning that H sub2 S gas was present.

Flying J contracted with WellTech, Inc. [WellTech], a "work over" company, ¹ to perform service work on the well. WellTech replaced a pump and performed an "acid job" on the well. Acidization of a well is a technique for increasing oil flow by introducing hydrochloric acid into the well to enlarge and reopen pores in oil-bearing limestone formations. Williams & Meyers, Manual of Oil & Gas Terms 14 (8th ed. 1991). The well is then "swabbed," with the acidized fluid pumped out of the well and stored in a temporary test tank.

The level of the fluid in the test tank must be periodically measured, or "gauged." A worker climbs up a ladder attached to the side of the tank, drops a gauge resembling a tape measure into the open hatch on top of the tank, and extracts it, noting the depth of the fluid in the tank.

On March 13, 1991, John Kristianson, an employee of WellTech, was working on Flying J's well. While gauging the test tank, Kristianson was overcome by H sub2 S gas emitting from the fluid in the tank. He fell to the ground and was seriously injured. ²

At the time of the accident, WellTech had three thirty-minute air packs on the site. These air packs consist of a small tank hooked to a face mask, similar to scuba diving equipment. Flying J presented an affidavit from Norman Anderson, Welltech's area manager for North Dakota, stating that all WellTech employees were instructed to use H sub2 S safety equipment when gauging temporary test tanks, and that John Kristianson's failure to wear one of the thirty-minute air packs when gauging the tank was in violation of company instructions. In an affidavit, John Kristianson denied being instructed to wear the thirty-minute air pack to gauge the tank, and asserted the thirty-minute air packs were "rescue" units to be used only for emergency situations.

Kristianson and his wife, Donna, sued Flying J on various theories, including negligent exercise of retained control of the work performed by WellTech. Specifically, the Kristiansons assert Flying J controlled the selection of safety equipment on site and controlled the manner of the work by its selection of an improper test tank. Flying J moved for summary judgment, arguing that it had not retained sufficient control over the manner and method of work to create a duty under the doctrine described in Section 414 of the Restatement (Second) of Torts. The trial court agreed and ordered entry of summary judgment dismissing the Kristiansons' claims against Flying J. The Kristiansons appealed.

Summary judgment under NDRCivP 56 is a procedure for the prompt and expeditious disposition of a controversy without trial if a party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not change the result. Lire v. Bob's Pizza Inn Restaurants, Inc., 541 N.W.2d 432, 433 (N.D.1995). In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the party opposing summary judgment, and that party must be given the benefit of all favorable factual inferences. Wishnatsky v. Bergquist, 550 N.W.2d 394, 397 (N.D.1996); American State Bank v. Sorenson, 539 N.W.2d 59, 61 (N.D.1995). Once the moving party meets its initial burden of showing the absence of genuine issues of material fact, the opposing party may not rest upon mere allegations or denials in the pleadings, but must present admissible evidence establishing a genuine issue of material fact. Wishnatsky, 550 N.W.2d at 397; Zueger v. Carlson, 542 N.W.2d 92, 94 (N.D.1996). As we explained in Industrial Commission v. Wilber, 453 N.W.2d 824, 825 (N.D.1990), the party opposing summary judgment cannot leave to the court the chore of divining what facts are relevant and material to the claim for relief, but must draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other documents containing testimony or evidence raising a genuine issue of material fact. ³

The Kristiansons argue Flying J is liable under the doctrine stated in Section 414 of the Restatement (Second) of Torts because Flying J retained control over the work of its independent contractor, WellTech. Generally, one who employs an independent contractor is not liable for the acts or omissions of the independent contractor. Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 447 (N.D.1994); Madler v. McKenzie County, 467 N.W.2d 709, 711 (N.D.1991). However, the doctrine summarized in Restatement Section 414 makes an employer liable when that employer retains control over the work:

Negligence in Exercising Control Retained by Employer

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

The doctrine of retained control does not make the employer vicariously liable for the independent contractor's acts, but creates an independent basis of liability for the employer's failure to exercise retained control with reasonable care. Fleck, 522 N.W.2d at 447-48; Zimprich v. Broekel, 519 N.W.2d 588, 593 (N.D.1994). As our opinions in Fleck, 522 N.W.2d at 447 and Madler, 467 N.W.2d at 711, illustrate, employees of the independent contractor fall within the purview of Section 414, and the employer of the independent contractor owes a duty to the independent contractor's employees to exercise retained control with reasonable care.

Thus, in Fleck, 522 N.W.2d at 448, we explained that retained-control liability arises only when the employer retains significant control over the work:

The liability created by Section 414 arises only when the employer retains the right to control the method, manner, and operative detail of the work; it is not enough that the employer merely retains the right to inspect the work or to make suggestions which need not be followed. Comment c to Section 414 explains the difference:

"In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way."

See also Zimprich, supra; Madler, supra; Schlenk [v. Northwestern Bell Telephone Co., 329 N.W.2d 605 (N.D.1983) ].

The Kristiansons assert Flying J retained control over safety equipment at the well site. They further assert the rescue air packs were not appropriate safety equipment for gauging this tank, and Flying J should have provided a "work pack," consisting of a large air tank that sat at the base of the ladder and a long hose connected to a face mask.

The Kristiansons have presented no evidence that Flying J had anything to do with the selection of the thirty-minute air packs on the well site. Norman Anderson of WellTech said in his affidavit that he selected the air packs and arranged to have them on the site while WellTech's crew worked there. Although the cost of this equipment was ultimately billed to Flying J by WellTech, Flying J had no role in selecting the equipment.

Relying upon deposition testimony of Mitch Carlson, the Flying J employee in charge of North Dakota operations, the Kristiansons assert that Flying J retained ultimate control over safety equipment because it could veto expenditures for equipment. The Kristiansons have mischaracterized Carlson's testimony. Carlson testified that if WellTech had wanted unusual safety equipment, such as a safety trailer and full-time safety supervisor, he would have had to approve it. It is uncontroverted, however, that WellTech did not consult Carlson before ordering the thirty-minute air packs. We conclude that retaining the right to approve unusual or extraordinary safety expenditures did not constitute retained control over the manner, method, or operative detail of the work sufficient to create a duty by Flying J to WellTech's employees.

Furthermore, even if Flying J's retention of the right to approve expenditures did create a duty, Flying J's duty would have been only to use reasonable care in exercising that retained control. The only control retained by Flying J was the right to approve expenditures requested by WellTech. Thus, Flying J's duty to Kristianson was to act reasonably in approving WellTech's requests for...