Noonan v. Texaco, Inc.

• Court: Wyoming Supreme Court
• Writing for the Court: Before THOMAS; BROWN; THOMAS; ROSE; THOMAS; ROSE; Blume
• Citation: Noonan v. Texaco, Inc., 713 P.2d 160 (Wyo. 1986)
• Decision Date: 15 January 1986
• Docket Number: No. 84-300,84-300
• Parties: Prod.Liab.Rep. (CCH) P 10,929, 1986-1987 O.S.H.D. (CCH) P 27,545 John P. NOONAN, Jr., as Personal Representative for and the Administrator of the Estate of Kevin V. Noonan, Deceased, and on Behalf of John P. Noonan, Jr., Ellen H. Noonan, Michael D. Noonan, and Martin D. Noonan, Appellants (Plaintiffs), v. TEXACO, INC., a Delaware corporation, Joy Manufacturing Company, a Pennsylvania corporation, and Dresser Industries, Inc., a Delaware corporation, Appellees (Defendants).

Page 160

713 P.2d 160

Prod.Liab.Rep. (CCH) P 10,929,

1986-1987 O.S.H.D. (CCH) P 27,545

John P. NOONAN, Jr., as Personal Representative for and the Administrator of the Estate of Kevin V. Noonan, Deceased, and on Behalf of John P. Noonan, Jr., Ellen H. Noonan, Michael D. Noonan, and Martin D. Noonan, Appellants (Plaintiffs), v. TEXACO, INC., a Delaware corporation, Joy Manufacturing Company, a Pennsylvania corporation, and Dresser Industries, Inc., a Delaware corporation, Appellees (Defendants).

No. 84-300.

Supreme Court of Wyoming.

Jan. 15, 1986. ^*

P. Richard Meyer of Spence, Moriarity & Schuster, Jackson, for appellants.

G.G. Greenlee and Robert M. Shively of Murane & Bostwick, Casper, for appellee Texaco, Inc.

Thomas S. Gorman and Glenn Parker of Hirst & Applegate, Cheyenne, for appellee Joy Mfg. Co.

Cameron S. Walker of Schwartz, Bon, McCrary & Walker, Casper, for appellee Dresser Industries, Inc.

Before THOMAS, C.J., and BROWN, CARDINE, ROSE (Retired) and ROONEY (Retired), JJ.

BROWN, Justice.

This is an appeal from a summary judgment granted in favor of appellees in a negligence action. Kevin Noonan was killed while working on an oil rig. Appellants brought suit against Texaco, Inc. (hereinafter Texaco), Joy Manufacturing Company (hereinafter Joy), Dresser Industries, Inc. (hereinafter Dresser), Leonard Charles Cruth, Max Atwell, Hercules Drilling, Brinkerhoff Drilling Company, Inc., Brinkerhoff-Signal, Inc., Petrolane Company, Petrolane Drilling Company, Signal Drilling Company, Inc., and Signal Drilling, Inc., for damages incurred in Kevin Noonan's death. All defendants answered and denied liability. Appellees Texaco, Joy, and Dresser filed motions for summary judgment which were granted by the trial court. Subsequent thereto, appellants settled with all the remaining defendants, and appellants' complaint against such defendants was dismissed with prejudice. From the summary judgment granted in favor of appellees Texaco, Joy, and Dresser, this appeal is brought.

Appellants raise the following issues:

"I

"Where a manufacturer negligently fails to guard machinery manufactured by it and fails to warn against its use without proper guards, is the manufacturer entitled to summary judgment because the purchaser/user of the product also failed to provide a guard for the machinery?

"II

"Where the owner of an oil well provided daily supervision over drilling operations and had the power to control safety aspects of the work, was it error for the trial court to grant summary judgment in favor of the owner where the owner knew that unsafe, unguarded rotating machinery was being used at the well site, and failed to warn of or correct such dangerous condition?"

We will affirm.

The facts show that on December 6, 1979, Kevin Noonan was killed while working on an oil rig in the employ of Brinkerhoff-Signal. While there were no eyewitnesses to the accident, the accident report reveals that Kevin Noonan was using a water hose to wash the drilling rig floor when the hose became wrapped around the rotating drill stem, also known as a "kelly." The hose also became entangled around Kevin's foot, lashing him to the rotating kelly. The rotation of the kelly caused his left leg to be severed, resulting in his death. Kevin's body was found with his left leg lashed to the kelly bushing and master bushing, which connect the drill stem or kelly to the rotary table on the drilling rig floor.

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. American Legion, Samuel Mares Post No. 8, Department of Wyoming v. Board of County Commissioners of the County of Converse, Wyo., 697 P.2d 1040 (1985); and Roth v. First Security Bank of Rock Springs, Wyo., 684 P.2d 93 (1984). The party moving for summary judgment has the burden of proving there exists no genuine issue of material fact and that it is entitled to judgment as a matter of law. Larsen v. Roberts, Wyo., 676 P.2d 1046 (1984); and Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979). 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. Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147 (1981); and Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980).

I

Although argumentative, appellants' first issue basically makes inquiry as to whether summary judgment was proper with regard to appellees Joy and Dresser. Appellants assert that Joy manufactured the kelly bushing and Dresser manufactured the master bushing. The thrust of appellants' argument is that Joy and Dresser were negligent in not designing and manufacturing guards for the kelly bushing and master bushing. However, the trial court found such argument untenable since the driller Brinkerhoff-Signal had made a conscious decision not to use such guards. In his decision letter, the judge noted:

"As for Joy's and Dresser's motions for summary judgment, they are granted for the simple reason that regardless of the argument they failed to provide a bushing guard or failed to manufacture a safe one or violated some duty in that regard, all as alleged by plaintiff, the fact remains, as noted above, that no matter what they would have done, Brinkerhoff-Signal would not have used the guard. In short, as both Joy and Dresser point out, the failure to provide or manufacture such a guard was not the cause of the accident. Kopriva v. Union Pac. R. Co., 592 P.2d 711, 713 (Wyo.1979) said:

" 'In Lemos v. Madden, 28 Wyo. 1, 10, 200 P. 791, 793 (1921) Justice Blume defined the issue as follows:

" ' "The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred."

" 'Later in the case, 28 Wyo. at 12, 200 P. at 794, Justice Blume rejected the notion of "but for" causation and stated:

" ' "But if the original wrong furnished only the condition or occasion, then it is the remote and not the proximate cause, notwithstanding the fact that there would have been no loss or injury but for such condition or occasion."

" 'See also, Frazier v. Pokorny, Wyo., 349 P.2d 324 (1960); Gilliland v. Rhoads, Wyo., 539 P.2d 1221 (1975); and 57 Am.Jur.2d Negligence, § 378. See 65 C.J.S. Negligence § 103:'

"If the absence of the bushing guard contributed to the accident, its absence was the conscious decision of Brinkerhoff-Signal not to obtain one or use one if it had been available to it."

In support of their motions for summary judgment, Joy and Dresser filed the affidavit of Max Atwell, safety director for Brinkerhoff-Signal, employer of the deceased. He testified in his deposition that it was the policy of Brinkerhoff-Signal not to use bushing guards because it was the opinion of Brinkerhoff-Signal, as well as the drilling industry, that such guards were of questionable use and safety. It is clear that Brinkerhoff-Signal made a conscious choice not to use bushing guards, and it seems immaterial whether Joy and Dresser manufactured their products with or without guards since the guards would not have been utilized on the drilling rig. Therefore, appellants have failed to show the existence of a genuine issue of material fact; i.e., how Joy and Dresser's negligence, if any, was the proximate cause of the accident and resultant death. See, e.g., Thomas v. South Cheyenne Water and Sewer District, Wyo., 702 P.2d 1303 (1985); Apperson v. Kay, Wyo., 546 P.2d 995 (1976); LeGrande v. Misner, Wyo., 490 P.2d 1252 (1971).

In opposition to Joy and Dresser's motions for summary judgment, appellants filed a "Memorandum in Opposition to Motions to Dismiss by Defendants Joy Manufacturing Company and Dresser Industries, Inc." It is noted that there were numerous depositions filed in the record, but since we view the evidence on a motion for summary judgment in the same light as the district court, we need only consider those depositions which were before the district court. Appellants asserted that it was negligent for Joy and Dresser not to manufacture guards for the kelly bushing, master bushing, and rotary table. However, as noted above, appellants failed to show how this was the cause of the accident in this case when the driller would not have used such guards in any event. Although speculative, it may be surmised that if Joy and Dresser had manufactured their products with such guards, Brinkerhoff-Signal still would have refused to use them because Brinkerhoff-Signal questioned their utility and safety. It must also be noted that the water hose in the instant case initially became wrapped around the rotating kelly, not the kelly bushing where it eventually wound up. Appellants have not claimed it was negligent to leave the kelly unguarded.

It is further noted that the memorandum filed by appellants' counsel in opposition to Joy and Dresser's motions for summary judgment is full of categorical assertions of ultimate facts. If such categorical assertions, totally unsupported by competent evidence, could be used to withstand a motion for summary judgment, the procedure would be rendered useless. Maxted v. Pacific Car & Foundry Company, Wyo., 527 P.2d 832 (1974); and Clouser v. Spaniol Ford, Inc., Wyo., 522 P.2d 1360 (1974).

Appellants also assert in their brief that "Prior to Kevin Noonan's death, OSHA began citing drilling contractors for failing to guard the kelly bushing. Nonetheless, Joy consciously decided not to manufacture guards for the equipment or to warn against its use without guards." This argument is misleading when viewed in context with all relevant facts. While it is true that federal OSHA rules and regulations require kelly bushing guards and failure to use such may...