Lopez v. Devon Energy Prod. Co.

• Citation: 468 P.3d 887
• Decision Date: 28 January 2020
• Docket Number: No. A-1-CA-36044,A-1-CA-36044
• Parties: Todd LOPEZ, as Personal Representative of the Estate of Fernando Flores, and Catalina Flores Rico, Plaintiffs-Appellants, v. DEVON ENERGY PRODUCTION COMPANY, L.P., Defendant-Appellee, and McVay Drilling Co. and Armando Arenivas, Defendants, Acuity, a Mutual Insurance Company, Plaintiff-In-Intervention, v. Todd Lopez, as Personal Representative of the Estate of Fernando Flores; Catalina Flores Rico; McVay Drilling Co. ; Armando Arenivas; Devon Energy Production Company, L.P.; Battle Energy Corp.; Plaster & Wald Consulting, Corp.; Bruce Holman; Sierra Engineering, LLC; and Allen Whiteplume, Defendants-In-Intervention.
• Court: Court of Appeals of New Mexico

468 P.3d 887

Todd LOPEZ, as Personal Representative of the Estate of Fernando Flores, and Catalina Flores Rico, Plaintiffs-Appellants,

v.DEVON ENERGY PRODUCTION COMPANY, L.P., Defendant-Appellee,andMcVay Drilling Co. and Armando Arenivas, Defendants,Acuity, a Mutual Insurance Company, Plaintiff-In-Intervention,

v.Todd Lopez, as Personal Representative of the Estate of Fernando Flores; Catalina Flores Rico; McVay Drilling Co. ; Armando Arenivas; Devon Energy Production Company, L.P.; Battle Energy Corp.; Plaster & Wald Consulting, Corp.; Bruce Holman; Sierra Engineering, LLC; and Allen Whiteplume, Defendants-In-Intervention.

No. A-1-CA-36044

Court of Appeals of New Mexico.

Filing Date: JANUARY 28, 2020

Certiorari Denied, April 28, 2020, No. S-1-SC-38161

Sanders & Westbrook PC, Maureen A. Sanders, Albuquerque, NM, Wray & Girard, PC, Katherine Wray, Albuquerque, NM, for Appellants

Hinkle Shanor LLP, Andrew J. Cloutier, Roswell, NM, McGuire Woods LLP, Samuel L. Tarry, Jr., Richard C. Beaulieu, Richmond, VA, for Appellee

B. ZAMORA, Judge.

{1} Plaintiffs Todd Lopez, in his capacity as the personal representative of the Estate of Fernando Flores, and Catalina Flores Rico (collectively, the Estate) sued Defendant Devon Energy Production Co., L.P. and others not parties to this appeal for the wrongful death of Fernando Flores, who was electrocuted while working for a subcontractor of Defendant. Following a trial on the merits, a jury returned a verdict of "no negligence" and the district court entered judgment for Defendant. This appeal followed.

{2} The Estate contends the district court erred by failing to instruct the jury that Defendant owed duties of care to the decedent, failing to admit certain evidence and improperly excluding other evidence, and permitting Defendant to engage in an improper and prejudicial closing argument. Defendant contends the Estate failed to preserve the errors complained of, the district court did not commit reversible error, and the Estate cannot demonstrate prejudice. Concluding the district court erred in instructing the jury, we reverse and remand for a new trial.

BACKGROUND

{3} This case arises from an accident on May 23, 2013, that caused the death of Fernando Flores. At the time of the accident, Defendant had just concluded drilling at a wellsite in New Mexico known as Antares 23 4H well site (Antares 23). Defendant had engaged several subcontractors to undertake the project, including McVay Drilling Co. (McVay) and Battle Energy Services (Battle). McVay provided drilling services for Defendant, using its own rigging equipment. Battle provided "rigging down" services, a process of dismantling the drilling rig so that it may be moved to a different location. On the day of the accident, Mr. Flores was working for Battle as a helper, a position known in the industry as a "swamper."

{4} After completing drilling at Antares 23, Defendant planned to drill at Aquila 22, a site located a short distance away. In preparation for the transfer of drilling operations, Defendant engaged Battle to provide "nipple-down services" for a blowout preventer (BOP) attached to the rig at Antares 23. In the nippling down process, a team removes the BOP from the rig and relocates it to the edge of the current wellsite. In a typical rig move, a second contractor then moves the BOP and other components of the rig from their location on the old wellsite to the new wellsite using a flatbed truck.

{5} On the day of the accident, two teams of Battle employees removed the BOP from the head of the rig and secured it to the hitch of a gin-pole truck. A gin-pole truck is a vehicle equipped with an A-frame style crane that can be raised or lowered as needed. The crane was in the raised position to allow it to hold and transport the attached BOP. A member of one of the Battle teams, Luis Perez Pinon, then began driving the truck to the edge of the wellsite, while Mr. Flores walked behind to ensure the BOP remained stable, was not damaged by the move, and did not cause the truck to tip.

{6} While the truck was moving, a McVay employee, Armando Arenivas, instructed Perez to transport the BOP to Aquila 22, instead of to the edge of Antares 23 as originally planned. Arenivas was McKay's "toolpusher"—the second-in-command on the wellsite behind the "company man[,]" who supervised operations on behalf of Defendant. Perez testified that he initially resisted Arenivas’ instruction, because it contradicted the instruction of his crew chief, and because he was not trained to transport a BOP offsite. However, after speaking with the Battle crew chief, Perez acquiesced to Arenivas and began driving the gin-pole truck toward Aquila 22 along a road, as Mr. Flores continued to walk behind it. As the truck approached the entrance to Aquila 22, the extended crane struck an overhead power line and Mr. Flores was electrocuted.

{7} The Estate brought a wrongful death action against Arenivas and McVay, and later amended its complaint to add Defendant.¹ The complaint alleged negligence by all defendants and sought damages for wrongful death, intentional infliction of emotional distress, and loss of consortium, as well as punitive damages. The allegations against Defendant were grounded in theories of vicarious and direct liability and specifically identified claims of premises liability and negligent supervision. The Estate settled with McVay and Arenivas prior to trial. Following a six-day trial, the jury returned a verdict in favor of Defendant, and the Estate appealed.

DISCUSSION

I. The Jury Instructions

{8} The Estate argues the district court erred by failing to instruct the jury that Defendant owed Mr. Flores duties, "pursuant to the Restatement[ ] [ (Second) of Torts]." They contend that, under Rodriguez v. Del Sol Shopping Center Associates, L.P. , 2014-NMSC-014, 326 P.3d 465, the district court should have decided the duty question as a matter of law, instructed the jury that Defendant owed duties to Mr. Flores, and "submitted all related factual disputes as questions of breach of those duties." Defendant argues that the Estate is estopped from arguing that the duty question should have been decided by the district court because the Estate relied on authorities calling for fact-based determinations of duty in its opposition to Defendant's motion for summary judgment. Defendant further argues Rodriguez is not as sweeping as the Estate contends, and it merely stands for the proposition that foreseeability analysis should be assigned to the jury, not that all duty determinations should be rendered by the court.² Finally, Defendant contends that, even if the instructions were in error, the Estate cannot demonstrate prejudice.

{9} We review jury instructions de novo, seeking to determine whether the instructions correctly stated the law and were supported by the evidence presented at trial. Benavidez v. City of Gallup , 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853. "The purpose of instructions is to enlighten the jury." Gerrard v. Harvey & Newman Drilling Co. , 1955-NMSC-034, ¶ 23, 59 N.M. 262, 282 P.2d 1105. "An instruction is correct, and thus proper to submit to a jury, when the instruction is consistent with the law and articulates fairly, completely, and succinctly the relevant law applicable to the facts[.]" Mireles v. Broderick , 1994-NMSC-041, ¶ 15, 117 N.M. 445, 872 P.2d 863 (citation omitted). We will affirm "if, as a whole, [the instructions] fairly represent the law applicable to the issue in question." Kennedy v. Dexter Consol. Sch. , 2000-NMSC-025, ¶ 28, 129 N.M. 436, 10 P.3d 115.

A. The Estate Is Not Estopped From Arguing the Duty Issue on Appeal

{10} We first consider Defendant's argument that the Estate should be estopped from arguing duty is a question of law to be decided by the district court because, in response to Defendant's motion for summary judgment, the Estate relied on New Mexico authorities that "based duties for the controllers of land or employers of independent contractors on several sections of the Restatement (Second) of Torts [Sections] 343, 411, and 414 [ (Am. Law Inst. 1965) ]." According to Defendant, because the determination of duties under these authorities is "necessarily based on case-specific facts[,]" the Estate's earlier reliance upon them precludes its argument on appeal that the district court erred in failing to instruct the jury on duty. The Estate asserts that it argued "[t]he [district] court should decide the duty question" and crafted proposed jury instructions "reflect[ing] its position that the jury should not be instructed to determine duty[,]" adequately preserving the issue for appeal. We agree with the Estate.

{11} The record reflects that the Estate argued repeatedly below that the determination of a duty of care is a matter for the district court to decide. The record also reflects that the Estate first submitted instructions based on the Uniform Jury Instructions (UJIs) before crafting instructions based on sections of the Restatement (Second) of Torts in response to the district court's statement that it was inclined to "stick with the Restatement with regard to these duties." Indeed, the Estate asserted that it preferred the UJIs over the Restatement language in part because the latter failed to adequately distinguish determinations of duty, breach, and liability. There is no question that the district court was sufficiently alerted to the parties’ arguments and disagreements about whether the jury or court decides the question of duty and the nature and source of the duty owed by Defendant to Mr. Flores. Based on our review of the record, the district court was fully aware of the issues presented and took full advantage of the parties’ arguments prior to making its rulings. See Rule 12-321(A) NMRA ("To preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked."). Accordingly, the Estate adequately preserved its argument that duty...