Ramirez v. Brown

Decision Date19 June 2020
Docket NumberS-19-0219
Citation466 P.3d 285
Parties Jose RAMIREZ, Appellant (Plaintiff), v. Elvin BROWN, Bill Wartenbee and Bryce Mitchell, Appellees (Defendants).
CourtWyoming Supreme Court

Representing Appellant: C. John Cotton, Cotton Law Office, P.C., Gillette, Wyoming.

Representing Appellee: Katharine Whitney Allen and John A. Masterson, Welborn Sullivan Meck & Tooley, P.C., Casper, Wyoming; Ryan C. Gill, Lewis Brisbois & Smith LLP, Denver, Colorado. Argument by Mr. Gill.



[¶1] Jose Ramirez sustained serious injuries when his hand and arm became entangled in a pipe-straightening machine known as the "spin-straightener" at National Oilwell Varco's Tuboscope facility in Casper, Wyoming. Mr. Ramirez sued his co-employee supervisors—Elvin Brown, Bill Wartenbee, and Bryce Mitchell—claiming they were liable for his injuries pursuant to Wyo. Stat. Ann. § 27-14-104(a) of the Worker's Compensation Act because they "intentionally act[ed] to cause physical harm or injury[.]" The district court granted summary judgment to the co-employee supervisors and Mr. Ramirez appealed. We affirm in part, reverse in part, and remand for trial on Mr. Ramirez's claim against Mr. Mitchell.


[¶2] Did the district court err when it granted summary judgment to the co-employee supervisors?


[¶3] National Oilwell Varco's Tuboscope facility inspected and repaired oil field tubing. Mr. Ramirez began working for Tuboscope in April 2013 and continued working there until his injury in January 2017. During all relevant time periods, Mr. Brown was the facility's operations manager, Mr. Wartenbee was the regional Health, Safety, and Environment Representative, and Mr. Mitchell was the facility's shop foreman.

[¶4] By January 2017, Mr. Ramirez "operated quite a few different pieces of equipment in [the] shop," including the spin-straightener. The spin-straightener could straighten pipes up to 34 feet long and two to three inches in diameter.1 Two employees usually ran the machine. The "operator" stood at the control station on one end of the machine operating levers that regulated the pipe rotation, degree of downward pressure, and block movement. The "tail hand" loaded, threaded, unthreaded, and unloaded pipe at the other end of the machine.

[¶5] The spin-straightener had been at the facility since at least 1992. The portion which caught Mr. Ramirez's hand and arm was unguarded; however, a rail acted as a barrier between the operator and the rotating equipment.

[¶6] The spin-straightener was located outside. Though a roof covered the machine itself, it did not extend over the work area around the machine. As a result, snow and ice would accumulate around the machine. Tuboscope did not have a written policy regarding snow and ice removal, but employees generally shoveled the area around the machine to clear it of any snow and ice before operating the machine.

[¶7] On the day Mr. Ramirez was injured, January 11, 2017, the spin-straightener had sat idle for several days and snow had accumulated around it. Mr. Ramirez described the events surrounding his injury as follows:

Robert [the forklift operator] said that there was some work to do to straighten some pipes on the machine. Like around 4:00, I went out to turn on the machine. He was smoking outside and also the person who was going to help me with the machine. The person who was going to help me asked if I was ready. I said I was going to turn on the machine, and then I was going to run to the bathroom.
I was back in the bathroom. And when I came out, he was no longer there. And so I came around from where the pipes were. And I got a Sharpie – chalk. I got a chalk to be able to write with. So, when I went to grab the chalk, then I slipped, and I almost – this whole part of my body went into the machine almost. And then when I was trying to like catch myself, it caught my hand here and then pulled it into the machine because the pipe was spinning.
When I wanted to pull it out, I felt it like pop my hand. And after that, things went very quickly. And then before I knew it, my whole arm had kind of been pulled into the machine before I could even like react to pull it out.
I wanted to pull my arm out, but I couldn't pull it out because the only part that would respond was this part up here. So I grabbed it from down here, and I pulled it out. When I looked, I could see that I had it all broken in here.

Mr. Mitchell drove Mr. Ramirez to the hospital. Mr. Ramirez sustained multiple fractures to his arm and hand. He applied for and began receiving workers' compensation benefits.

[¶8] Mr. Ramirez sued Mr. Brown, Mr. Wartenbee, and Mr. Mitchell in January 2018, claiming they were not entitled to immunity from liability under the Workers' Compensation Act because they "intentionally act[ed] to cause physical harm or injury to the injured employee[.]" His complaint alleged the spin-straightener was dangerous because "[t]here were no guards on or over any part of the machine." It alleged the machine's location made it even more dangerous because it was outside and only partially covered by a roof, allowing snow and ice to build up around the machine, leaving the work area slick and wet. The complaint further alleged the co-employee supervisors received numerous complaints and requests to make the machine safer but failed to do so. The complaint alleged Mr. Brown, Mr. Wartenbee, and Mr. Mitchell each (1) had "actual knowledge of the hazard and/or serious nature of the risk involved with the machine, and knew the machine to be the most dangerous piece of equipment at the Tuboscope shop"; (2) were supervisors with direct responsibility for his work conditions and safety; and (3) "willfully acted and/or disregarded the need to act despite awareness of the high probability that serious injury or death may result."

[¶9] Mr. Brown, Mr. Wartenbee, and Mr. Mitchell denied the allegations and asserted they were immune from liability under the Workers' Compensation Act. Based on evidence gathered through discovery, they moved for summary judgment, submitting: the required Rule 56.1 Statement of Undisputed Material Facts; excerpts of deposition testimony from themselves, Mr. Ramirez, and an individual with knowledge about the machine's history; and information regarding a March 2012 Occupational Safety and Health Administration (OSHA) inspection at the facility that uncovered no violations.

[¶10] In opposition to the motion, Mr. Ramirez submitted: affidavits from former Tuboscope employees Seth Peterson, Ivan Gudino, and Richard Thomas Willden; an affidavit and supporting materials from his expert, Dennis A. Muller; additional deposition testimony; photographs of the spin-straightener; Tuboscope safety materials; documents regarding his injury; and information regarding the OSHA regulations on machine guarding.

[¶11] The district court determined the co-employee supervisors had direct responsibility for Mr. Ramirez's work conditions and safety. However, the court granted summary judgment in favor of Mr. Brown, Mr. Wartenbee, and Mr. Mitchell, after concluding that Mr. Ramirez failed to establish a genuine issue of material fact to rebut the co-employee supervisors' prima facie showing they had no actual knowledge of the serious risk involved and did not intentionally act to cause Mr. Ramirez's injury. Mr. Ramirez timely appealed.


[¶12] Wyoming Rule of Civil Procedure 56(a) authorizes summary judgment when "the movant[s] show[ ] that there is no genuine dispute as to any material fact and the movant[s] [are] entitled to judgment as a matter of law." We review the district court's order granting summary judgment to the co-employee supervisor movants de novo. Gowdy v. Cook , 2020 WY 3, ¶ 21, 455 P.3d 1201, 1206 (Wyo. 2020) (citations omitted).

[W]e review a summary judgment in the same light as the district court, using the same materials and following the same standards. We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties.

Id. ¶ 21, 455 P.3d at 1207 (quoting Sullivan v. Pike and Susan Sullivan Foundation , 2018 WY 19, ¶ 15, 412 P.3d 306, 310 (Wyo. 2018) ). The immunity afforded co-employees under the Workers' Compensation Act in no way alters this standard.

[¶13] As movants, the co-employee supervisors bear "the initial burden of establishing a prima facie case for summary judgment ... by showing a lack of evidence on an essential element of [Mr. Ramirez's] claim." Id. ¶ 22, 455 P.3d at 1207 (citations omitted). If they present a prima facie case, the burden shifts to Mr. Ramirez, as the opposing party, "to present materials demonstrating a genuine dispute as to a material fact for trial." Id. ¶ 23, 455 P.3d at 1207 (citing Hatton v. Energy Elec. Co. , 2006 WY 151, ¶ 9, 148 P.3d 8, 12–13 (Wyo. 2006) ). He "must affirmatively set forth material, specific facts in opposition" to the motion. Id. (quoting Jones v. Schabron , 2005 WY 65, ¶ 10, 113 P.3d 34, 37 (Wyo. 2005) ).

[¶14] "The evidence presented in a summary judgment proceeding must be admissible and competent." Id. (citing Jones , ¶ 10, 113 P.3d at 37 ). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." W.R.C.P. 56(c)(4). "An affidavit that states a conclusion or categorical assertion of an ultimate fact cannot be used to defeat summary judgment." Brebaugh v. Hales , 788 P.2d 1128, 1140 (Wyo. 1990) (citing Greenwood v. Wierdsma , 741 P.2d 1079, 1087 (Wyo. 1987) ) (concluding the...

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2 cases
  • Lovato v. Tim Case
    • United States
    • Wyoming Supreme Court
    • December 1, 2022
    ...afforded co-employees under the Workers’ Compensation Act in no way alters this standard." Ramirez v. Brown, 2020 WY 79, ¶ 12, 466 P.3d 285, 289 (Wyo. 2020). [¶7] " ‘The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment.’ " ......
  • Lovato v. Tim Case
    • United States
    • Wyoming Supreme Court
    • December 1, 2022
    ...afforded co-employees under the Workers' Compensation Act in no way alters this standard." Ramirez v. Brown, 2020 WY 79, ¶ 12, 466 P.3d 285, 289 (Wyo. 2020). [¶7] "'The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment.'" Go......

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