Pan Am. Petroleum Corp. v. Like

• Decision Date: 01 May 1963
• Docket Number: No. 3122,3122
• Citation: 381 P.2d 70
• Parties: PAN AMERICAN PETROLEUM CORPORATION, a Delaware Corporation, Appellant (Defendant below), v. Leon Preston LIKE, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 70

381 P.2d 70

PAN AMERICAN PETROLEUM CORPORATION, a Delaware Corporation, Appellant (Defendant below), v. Leon Preston LIKE, Appellee (Plaintiff below).

No. 3122.

Supreme Court of Wyoming.

May 1, 1963.

Oscar E. Swan, Jr. and Edward E. Murane, of Murane, Bostwick McDaniel & Scott, Casper, for appellant.

Ernest Wilkerson and Robert J. Murphy, of Mahoney & Murphy, Casper, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Pan American Petroleum Corporation has appealed from a judgment against it based upon a personal-injury verdict. The verdict was given by a Natrona County jury to Leon Preston Like in the amount of $186,748.95.

The accident from which the litigation arose occurred in the fall of 1957 while Mr. Like was employed as a driller by Loffland Brothers, a drilling firm engaged in the drilling and completion of a gas well in Fremont County, Wyoming, for Pan American. The well was the fifty-third well drilled by Loffland Brothers for Pan American in the same county and field.

The work was being done under a day-work drilling contract. Loffland operated in a customary manner to the extent that it had a driller in charge of each eight-hour tower and a toolpusher in charge of the three daily towers. Like's immediate superior was Paul Waid, toolpusher for Loffland Brothers on this particular well. The representative of Pan American on the well was Erwin Parker Swann.

During completion operations, gas from the well got out of control. A fire ensued and plaintiff-Like was severely burned and injured. The injured workman sued to recover damages from Pan American, owner of the well, on the theory that Pan American was negligent in one or both of the following particulars:

(1) That it failed to specify or require an adequate blowout preventer.

(2) That it failed to specify and furnish drilling mud of the proper weight and consistency.

The contract between Pan American and Loffland Brothers for the well here involved, No. 53, was on a printed form which could cover a situation where ordinary drilling was on a footage basis and completion work on a day-work basis. However, for this well both the drilling and completion were contracted for on a day-work basis.

Although printed portions of the contract specify, in paragraph 5(c), that when operations are on a footage basis the contractor shall be liable for all claims arising as a result of blowouts, explosions or accidents incident to drilling operations, when there are completion operations, the following is specified:

'6. When Pan American shall use Contractor's crew, drilling machinery, and drilling equipment in the performance of work necessary for coring, logging, perforating, acidizing, setting liners, swabbing, installing connections, abandoning and other items of work and labor, commonly known as 'day work,' it is agreed:

'(a) All day work shall be subject to and under the direct supervision of a designated representative of Pan American.'

Inasmuch as the operations being conducted at the time of the accident were admittedly completion operations and there were no operations on a footage basis, there can be no dispute that paragraph 6(a) was operative, and all work at the time of the accident was subject to and under the direct supervision of Pan American's designated representative, Swann.

It is undisputed that Pan American specified and Loffland Brothers furnished, for use on this well, a Shaffer double-gate hydraulic-controlled blowout preventer. It included pipe rams which could be closed, in case of an emergency, around pipe or tubing which is round in shape. It also included blind rams which could be closed, in case of emergency, when nothing at all was inside the preventer. It did not include any kind of device for closing, in case of an emergency, around the kelly which is square or hexagon in shape. No other blowout preventer equipment was specified or furnished.

According to the witnesses who testified on the matter, about 38 feet of the kelly was beneath the rig floor and inside the well just before the accident occurred. This meant that the kelly extended through the inside of the blowout preventer and rendered it useless unless and until the kelly could be lifted out. Attached to the kelly and inside the well was tubing extending to a depth of approximately 8,570 feet. The tubing was being used for drill pipe.

Swann, on behalf of Pan American, had directed a cleaning out and circulating operation. He had specified the depth for the bottom of the drill pipe, but he had not specified where the bottom of the kelly should be. In other words, he had not instructed in exact terms for or against having the kelly through the blowout preventer.

The evidence was in conflict on the question as to whether the kelly needed to be through the blowout preventer, but it seems to be undisputed that Waid and not Like placed it there and directed what should be done next. The accident, however, happened immediately. Both Waid and Like indicated by their testimony that, after a workman warned of gas blowing out, everything possible was done to withdraw the kelly and close the blowout preventer. The explosion and fire occurred before this could be done.

Standard of Care

It is the contention of defendant-Pan American, as stated by its attorneys, that plaintiff-Like failed to establish by the evidence a duty or standard of care for the drilling of the well in question; that no common practice or custom of the drilling trade or profession was established; and that in failing to set forth such a standard it would be impossible to establish a breach of a nonexistent duty or standard. The trial court, defendant claimes, erred in failing to recognize this basic tenet of the requirement on plaintiff to establish a duty, a breach thereof, and resulting damages.

Subsequent to the trial of this case in the district court, we reaffirmed, in Govin v. Hunter, Wyo., 374 P.2d 421, 422-423, the principle that in malpractice suits it is necessary for a plaintiff to prove by the evidence of competent experts that the injury complained of was caused by negligence. We stated in fact that we do not understand how a jury could possibly find the existence of negligence in a malpractice case without a standard to go by.

We now understand it to be the position of Pan American that a similar principle should control in the case before us, and that the trial court's action in permitting the case to go to the jury had the effect of allowing the jury to determine and apply its own standard of care.

Before extending the malpractice rule to other cases, we must of course look at the reasons for the rule and see whether they apply to the case being considered. In that regard, it is quite apparent the standard of care, against which the acts of a physician in a malpractice action are to be measured, is a matter peculiarly within the knowledge of medical experts and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. Sinz v. Owens, 33 Cal.2d 749, 205 P.2d 3, 5, 8 A.L.R.2d 757; Beane v. Perley, 99 N.H. 309, 109 A.2d 848, 850.

Common knowledge and the experience of ordinary laymen do not equip them to give the answer, in the usual malpractice suit, without the aid of expert medical testimony; but even in a malpractice action, expert testimony is not essential where the results of the treatment are of such character as to warrant the inference of want of care from the testimony of laymen or in the light of the knowledge and experience of the jurors themselves. Lince v. Monson, 363 Mich. 135, 108 N.W.2d 845, 849; Larrimore v. Homeopathic Hospital Association of Delaware, Del., 176 A.2d 362, 367; Merola v. Stang, Fla.App., 130 So.2d 119, 120. Examples, as mentioned in the Merola case, are where a wound was permitted to heal superficially with nearly half a yard of gauze deeply imbedded in the flesh; or where part of a patient's tongue was cut off in removing adenoids. Other examples are cited in the Annotation 141 A.L.R. 5, at 12 et seq.

We are given no reason to assume the standard of care, against which the acts of defendant are to be measured in the case at bar, is a matter peculiarly within the knowledge of experts. Indeed the matter would appear to be within the common knowledge and experience of laymen and the jurors themselves. See Bonczkiewicz v. Merberg Wrecking Corporation, 148 Conn. 573, 172 A.2d 917, 921.

Mr. Justice Parker, speaking for our court in Yeoman v. Fulton, Wyo., 366 P.2d 694, 696, quoted and adopted text authorities for the proposition that negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm, and that the standard of conduct must be such as would be adopted by a reasonable person under like circumstances; also that the issue of negligence presents a number of points which must be resolved by the court, including the existence or nonexistence of a duty and both the general and special standards of conduct applicable under the circumstances.

Again in Lore v. Town of Douglas, Wyo., 355 P.2d 367, 370, Justice Parker pointed out that testimony pertaining to negligence would be more explicit and definitive if there were presented to the court a requisite standard of care and a recitation of the occurrences which are claimed to violate such standard.

In the present case, that was done. Plaintiff alleged in his complaint that defendant failed to specify or require an adequate blowout preventer, and that it failed to specify and furnish drilling mud of the proper weight and consistency. The case was tried on that theory and the court instructed the jury accordingly. It was made clear to the jury what Pan American's duty was, and with respect to standard of conduct, the court instructed as to a general...