Slane v. Jerry Scott Drilling Co., Inc.

• Decision Date: 02 November 1990
• Docket Number: No. 88-1264,88-1264
• Citation: 918 F.2d 123
• Parties: Richard SLANE and Linda Slane, Husband and Wife, Plaintiffs-Appellants, v. JERRY SCOTT DRILLING COMPANY, INC., an Oklahoma corporation; Tuney Burger, Inc., an Oklahoma corporation; Tuney Burger, Individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 123

918 F.2d 123

Richard SLANE and Linda Slane, Husband and Wife, Plaintiffs-Appellants, v. JERRY SCOTT DRILLING COMPANY, INC., an Oklahoma corporation;

Tuney Burger, Inc., an Oklahoma corporation;

Tuney Burger, Individually, Defendants-Appellees.

No. 88-1264.

United States Court of Appeals, Tenth Circuit.

Nov. 2, 1990.

Larry Tawwater (Ben T. Lampkin, John E. Vitali, with him, on the briefs), Lampkin, McCaffrey & Tawwater, Oklahoma City, Okl., for plaintiffs and appellants.

Earl D. Mills (Joseph T. Acquaviva, with him, on the brief), Mills, Whitten, Mills, Mills & Hinkle, Oklahoma City, Okl., for defendant-appellee Jerry Scott Drilling Co., Inc.

Jim W. Lee (Manville T. Buford and C. Scott Buech, with him, on the brief), Lee, Beuch, Buford, Durocher & Mauritson, Oklahoma City, Okl., for defendants-appellees Tuney Burger, Inc. and Tuney Burger, Individually.

Before BALDOCK and EBEL, Circuit Judges, and BARRETT, Senior Circuit Judge.

BARRETT, Senior Circuit Judge.

Richard and Linda Slane appeal from a judgment entered following a jury trial and verdict granted in favor of Jerry Scott Drilling Company (Scott Drilling), Tuney Burger, Inc. (Burger), and Tuney Burger, individually. The Slanes initiated this action after Richard was severely burned following an explosion on an oil drilling rig where he was working. The relevant facts are not in dispute.

In early 1985, Wessley Energy (Wessley), a non-party to this action, commenced drilling an oil well (Cargo 1-4) in McClain County, Oklahoma. Wessley contracted separately to obtain Scott Drilling as its drilling contractor, and Tuney Burger, doing business as Tuney Burger, Inc., as its consultant and on-site supervisor. Wessley also hired Monarch Testers, Inc. (Monarch) to conduct drill stem tests on the well. Monarch employed Richard Slane as a drill stem tester and assigned him to Cargo 1-4.

Drill stem tests are utilized to obtain well information including bottom hole pressure, types of fluids, and the amount of flow at specific depths within a well. Such tests are generally performed by "pulling wet" or "reverse circulation." Pulling wet involves pulling the drill pipe from the well with the oil and gas in place through the process. Reverse circulation involves pumping mud into the well bore under pressure and forcing the oil and gas to the surface and into a tank or pit. Of the two methods, reverse circulation is considered the safest but less satisfactory for obtaining certain geological data.

On February 5, 1985, Burger called Wessley and inquired whether to conduct a wet or dry (reverse circulation) drill stem test on Cargo 1-4. Wessley instructed Burger to "pull wet." Burger, in turn, instructed Richard Slane to perform the drill stem test by pulling wet. During the test, Richard was seriously injured following an explosion and subsequent fire.

The Slanes subsequently sued Scott Drilling and Burger, alleging that they were wholly and solely responsible for the safe operation of the rig at Cargo 1-4 and that Richard's injuries were the direct result of their negligence. The Slanes sought damages of $2,500,000.00.

Within its answer, Burger denied any liability. As affirmative defenses, Burger alleged that: the accident was the result of the negligence of a third party over whom they had no control or supervision; Richard was guilty of negligence of a greater degree than any negligence of Burger and Scott Drilling; and Richard's negligence bars any recovery against Burger and Scott Drilling. Burger also alleged that the accident was unavoidable and occurred without any negligence on the part of Burger and Scott Drilling.

Within its answer, Scott Drilling also denied any liability, and alleged that: the Slanes' complaint failed to state a viable cause of action; Richard was negligent and his negligence caused or contributed to the accident; Richard voluntarily assumed the risk of a known danger; Scott Drilling was confronted with a sudden emergency not brought about by its negligence and it reacted as a reasonable and prudent person would have reacted under the circumstances; and the accident was proximately caused by the negligence of a third party over whom Scott Drilling had no control. Scott Drilling also cross-complained against Burger for indemnity and/or contribution.

During the trial, the Slanes presented evidence that pulling wet was dangerous, that Burger instructed the tool pusher on the well to begin the test in question, and that Burger directed Richard to conduct the test by pulling wet. The Slanes' expert witness testified that he never pulled wet under conditions which existed in this case because the risk of exposing liquid carbons on the rig floor was unjustified. He opined that pulling wet was an unnecessary risk in this case.

Richard testified during direct examination that he had worked in the oil fields for approximately thirty years; Monarch did a lot of work for Wessley; he had worked with Burger and Scott Drilling crews on prior occasions; he knew it was dangerous to pull wet; he had worked with Burger on 60 to 75 tests where he had pulled wet; a wet test is dangerous only 15 to 20 per cent of the time; and, although he had an assumption, a calculated guess, he did not know what ignited the fire.

On cross-examination, Richard testified that "any time you pull a wet string of hydrocarbons it can be dangerous" (R., Vol. II at p. 157); he had pulled probably 300 wet tests overall; he had never experienced an explosion until this one; the oil-gas ratio on this well was higher than on most he had worked on but was perhaps equal to many that he had done in the past; he had never before had an accident during a test; he had worked with the Scott Drilling crew before and found the crew to be a highly proficient group of individuals ("it's probably one of the best drill stem test crews I've ever worked with in my life.") (R., Vol. II at p. 171); he had worked with Burger before and did not remember Burger starting a fire before; occasionally people get injured through no fault of anybody; Burger was "the authority on location" (R., Vol. II at p. 171); Burger was responsible to see that Richard performed his job to completion; Burger did not tell Richard how to set his tool; when he is out on a rig, he is in charge of his safety; and experienced men always watch out for themselves first and one other man.

Burger defended on the basis that Wessley was at all times the owner of the well and, as such, controlled the methods and procedures by which the well was to be drilled and tests to be conducted; Burger, as Wessley's consultant, relayed Wessley's orders and directions and was at the well to assure compliance with Wessley's orders and directions; Scott Drilling contracted separately with Wessley and provided all of its own equipment and personnel; Monarch was Wessley's preferred drill stem tester and Burger was to have Monarch perform the drill stem tests if Monarch was available; Richard was the drill stem tester usually furnished by Monarch and Richard was in charge during the course of the drill stem test; and Wessley made the decision to pull wet on the drill stem test being conducted at the time of the accident.

Scott Drilling defended on the basis that it was hired by Wessley to drill the well; Burger, as the drilling supervisor/consultant, was the highest ranking person on the well; Richard was very knowledgeable in the oil field and his knowledge as a drill stem tester was superior to that of anyone else on Scott Drilling's crew; Richard appreciated the dangers of pulling wet; there was sufficient evidence in the record to indicate that none of the defendants was negligent; although the evidence was conflicting on certain issues, the effect and weight to be given conflicting testimony was for the jury to decide; and there was sufficient evidence upon which the jury could have concluded that Richard was fully aware of the risks associated with a drilling rig and oil field operations and that he voluntarily assumed the risks.

During closing arguments, counsel for Burger suggested that perhaps Richard was contributorily negligent. The Slanes objected at the conclusion of Burger's closing arguments and the court directed the jury to disregard any suggestions of contributory negligence. Within its instructions to the jury, the court instructed on sudden emergency and assumption of risk in accordance with the affirmative defenses advanced by Scott Drilling.

The jury returned a verdict in favor of Burger and Scott Drilling and against the Slanes. The Slanes subsequently moved for judgment notwithstanding the verdict, an amendment of the judgment, and, in the alternative, a new trial. In support of their motions, the Slanes argued that the court's instructions on assumption of risk and sudden emergency were improper and that the closing argument comments of Burger's counsel regarding contributory negligence were highly prejudicial requiring a judgment notwithstanding the verdict. The motions were denied via a minute order.

On appeal, the Slanes contend: (1) the sudden emergency instruction misled the jury; (2) the court erred in giving an assumption of risk instruction; and (3) Burger's counsel committed reversible error by introducing extraneous matter during closing arguments.

I.

The Slanes contend that the sudden emergency instruction misled the jury. The Slanes argue that the evidence did not support a sudden emergency instruction and that the instruction given to the jury did not represent the law of Oklahoma.

Although the determination of the substance of a jury instruction in a diversity case is a matter of state law, Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1296 (10th Cir.1989), the grant or denial of...