Parker Drilling Co. v. O'Neill

• Decision Date: 25 November 1983
• Docket Number: Nos. 6999,7436,s. 6999
• Parties: PARKER DRILLING COMPANY, Appellant, Cross-Appellee, v. Melneeta O'NEILL, as Special Administratrix of the Estate of Thomas James O'Neill, Deceased, Appellee, Cross-Appellant.
• Court: Alaska Supreme Court

Page 770

674 P.2d 770

PARKER DRILLING COMPANY, Appellant, Cross-Appellee, v. Melneeta O'NEILL, as Special Administratrix of the Estate of Thomas James O'Neill, Deceased, Appellee, Cross-Appellant.

Nos. 6999, 7436.

Supreme Court of Alaska.

Nov. 25, 1983.

Sanford M. Gibbs, Hagans, Brown & Gibbs, Anchorage, for appellant and cross-appellee.

Bernard P. Kelly, Kelly & Luce, Anchorage, for appellee and cross-appellant.

Before RABINOWITZ, MATTHEWS and COMPTON, JJ., and BLAIR and CARLSON, Judges. ^*

OPINION

RABINOWITZ, Justice.

Thomas James O'Neill was fatally injured on February 9, 1979, while working for Weatherford Oil Tool Co. The fatal accident occurred on Parker Drilling Company's Rig 141 operating in Prudhoe Bay. Weatherford and Parker were both independent contractors working for ARCO. Melneeta O'Neill sued Parker for injuries to herself and her two children as a result of her husband's death. The central issues in this appeal arise from the fact that Parker was not Thomas O'Neill's employer.

On February 9, O'Neill was working as a "stabber" on a platform called a stabbing board. ¹ A stabbing board is a movable platform on a drill rig used to adjust the height of the stabber. It was described at trial as an open elevator. ² The stabber's job was to reach out and grab each length of casing as it was lifted toward the rig, and align it so that his partner below, the "tong operator," could attach it to another length of casing, already extending down into the well. The tong operator would then run the casing down into the well and the process would be repeated with a new length of pipe.

It is undisputed that Parker supplied the drilling rig and had designed and built the stabbing board upon which O'Neill rode. ³ At the time of the accident O'Neill was working approximately forty-eight feet above the drill rig floor preparing to handle a section of casing that was being lifted by a traveling block on the side of the rig. The motion and speed of the traveling block, which weighed several tons, was controlled by a Parker employee called a "driller." ⁴ While O'Neill was waiting for the pipe to come into position, the ascending traveling block swayed and struck the bottom of the platform on which he was standing, raising the platform approximately four and one-half feet to the end of the tracks on which it moved. At that point the stabbing board came free of the block and fell back to its original position some four and one-half feet below. This fall caused the supporting cable for the board to break and the entire platform fell an additional twenty-one feet.

After the accident it was established that O'Neill had been using the stabbing board with its safety handle "tied off." The handle controlled a brake designed to prevent the platform from moving down unless the stabber manually held the handle in a neutral position. At the time of the accident the handle was tied with twine so that the brake remained disengaged. Although it was not established who tied off the handle, there was testimony at trial that every workman who used the stabbing board did so with the safety handle tied off. Employees from Rig 141 testified that the purpose of the brake was obvious to a workman with stabbing experience. It was agreed among witnesses who had worked with the board, however, that the placement and operation of the handle were awkward and inconvenient, and that the stabber's work was slowed considerably when the handle was engaged. ⁵

O'Neill's widow sued Parker Drilling alleging numerous separate acts of negligence. More specifically, it was claimed that the stabbing board provided by Parker was unsafe in several respects, ⁶ that the operation of the drilling rig controls by Parker employees had been negligent, ⁷ and that Parker had been negligent in failing to establish reasonable safety procedures and controls to detect hazards such as those that existed at Rig 141. ⁸ These defects were allegedly the proximate cause of Thomas O'Neill's death.

The jury found that Parker was negligent and that Parker's negligence proximately caused Thomas O'Neill's death. The jury also determined that Thomas O'Neill was negligent and that this negligence was an additional proximate cause of the accident. The jury assigned 70% of the responsibility for the accident to Parker's negligence and 30% to O'Neill's. Total damages were calculated by the jury at $1,600,000, and the superior court thus awarded Melneeta O'Neill and her two children $1,120,000 plus costs and attorney's fees. This appeal followed.

I. Parker's duty to supply a safe workplace.

The superior court granted O'Neill's widow a directed verdict on the issue of Parker's duty to supply Thomas O'Neill with a safe place to work. The court ruled that as a matter of law Parker had assumed such a duty. In its instructions to the jury, the court included statutory and regulatory provisions as more precise descriptions of the duty assumed by Parker. ⁹ The consequence of the superior court's ruling was that Parker was potentially liable for any negligent failure on its part to implement adequate safety programs and procedures for the protection of an employee such as O'Neill. Parker argues that the superior court's analysis of the law was incorrect, and that the court misapplied the law to the facts.

A. The source of the duty.

During trial the superior court concluded that Parker might be held liable for its failure to provide O'Neill with a safe place to work just as though Parker had been O'Neill's employer. The existence of such a duty running to Parker depended on the existence of certain facts. The factual question identified by the superior court was this: Did Parker exercise sufficient control over the work performed by O'Neill that it voluntarily assumed the duty to provide O'Neill with a safe place to work? The initial question here is whether the superior court's analysis was correct.

The superior court determined that two sections of the Restatement (Second) of Torts (1965) combined to create a common law duty running to one subcontractor to ensure the safety of the workplace for the employees of another subcontractor. ¹⁰ Under § 414 we have held that such a duty may extend to a general contractor to act for the protection of the employees of a subcontractor. ¹¹ Moloso v. State, 644 P.2d 205, 211 (Alaska 1982); Everette v. Alyeska Pipeline Service Co., 614 P.2d 1341, 1347 (Alaska 1980); Morris v. City of Soldotna, 553 P.2d 474, 478 (Alaska 1976); Hobbs v. Mobil Oil Corp., 445 P.2d 933, 934 (Alaska 1968). We have also held that § 324A prescribes an assumed duty to act, analytically similar to the duty recognized under § 414. ¹² Hammond v. Bechtel Inc., 606 P.2d 1269, 1277 n. 14 (Alaska 1980). Section 324A provides that one may voluntarily assume the responsibility to act for the protection of others. Adams v. State, 555 P.2d 235, 240-41 (Alaska 1976); see also Wallace v. State, 557 P.2d 1120 (Alaska 1976).

Section 414 subjects "[o]ne who entrusts work to an independent contractor" to the same liability the independent contractor would have for "physical harm to others." This occurs when one "retains control of any part of the work" performed by the independent contractor. Under § 414 the relevant inquiry is thus whether Parker retained control of the work done by O'Neill.

Parker contends that § 414 cannot be used to impose a duty upon one subcontractor for the protection of the employees of another subcontractor. The thrust of Parker's argument is that § 414 "does not create a common law duty" at all.

The general rule in tort law is that an employer is vicariously liable for the torts of its employees committed in the scope of employment. Prosser on Torts § 70, at 460-61 (4th ed. 1971). An exception to the rule of vicarious liability has been created for the employer of an independent contractor. Because such an employer normally does not control the work of the independent contractor, he is not held liable for the torts of the contractor and its employees. This exception is sometimes called the "independent contractor rule." Hammond v. Bechtel, 606 P.2d at 1274 n. 7.

The independent contractor rule is itself subject to exceptions. Prosser on Torts § 71, at 468 (4th ed.); Restatement (Second) of Torts §§ 410-429 (1965). Section 414 has been characterized as one such exception. Hammond v. Bechtel, 606 P.2d at 1274 n. 7; United States v. Cline, 410 F.2d 1337, 1342 (9th Cir.1969).

Parker argues that the narrow effect of § 414, when its requirements are satisfied, is to reimpose the rule of vicarious liability between employer and hired contractor despite the independent contractor rule. Because no vicarious liability normally extends to one subcontractor for the actions of another subcontractor, Parker believes that § 414 has no bearing upon the instant case.

Two responses to Parker's argument appear from the briefs and record. First, as appellee points out, this court has demonstrated a dissatisfaction with strict privity limitations in resolving questions of jobsite liability. In State v. Marathon Oil, 528 P.2d 293 (Alaska 1974), and Bachner v. Rich, 554 P.2d 430 (Alaska 1976), we held that provisions of the Alaska General Safety Code (GSC) described a duty on the part of an employer to provide a safe worksite not only for its own employees, "but for all employees who may be on their premises." Bachner, 554 P.2d at 444; Marathon Oil, 528 P.2d at 297.

Second, it is not at all clear that § 414 operates merely as an exception to an exception, as Parker has argued. We have referred to § 414 as the source of an independent duty. Most recently, in Moloso v. State, 644 P.2d 205, 211 n. 5 (Alaska 1982), we held that § 414 embodied "the simple rule that anyone, including the employer of an independent contractor, may be held liable for his or her own negligence." (Emphasis in original.) In Hammond v. Bechtel, 606 P.2d at 1274, we spoke of § 414 as a "source...