Tanner v. BDK Production Co., Inc.

• Decision Date: 30 April 1984
• Docket Number: No. 13-83-023-CV,13-83-023-CV
• Citation: 671 S.W.2d 941
• Parties: Kathy Diane Price TANNER and Highlands Insurance Company, Appellants, v. BDK PRODUCTION COMPANY, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 941

671 S.W.2d 941

Kathy Diane Price TANNER and Highlands Insurance Company, Appellants, v. BDK PRODUCTION COMPANY, INC., et al., Appellees.

No. 13-83-023-CV.

Court of Appeals of Texas,

Corpus Christi.

April 30, 1984.

Vernon N. Reaser, Jr., Robert Cheshire, Jack W. Marr, Kelly, Stephenson, Marr & Lewis, Victoria, for appellants.

Richard L. Scheer, H. Dustin Fillmore, Fillmore & Camp, Fort Worth, Tom M. Callan, Dallas, for appellees.

Before NYE, C.J., and YOUNG and UTTER, JJ.

OPINION

NYE, Chief Justice.

This is an action for wrongful death brought by the survivors of Clayton Tanner against Enserch Exploration, Inc. (Enserch). Trial was to a jury which found that the negligence of Enserch proximately caused the injury resulting in Tanner's death to the extent of 80%, while decedent's own negligence contributed to the occurrence to the extent of 20%. Enserch filed a Motion to Disregard the Jury Verdict and Motion for Judgment Non Obstante Veredicto. The trial judge granted Enserch's motions, disregarded the special issues relating to liability and granted judgment denying appellants' recovery against Enserch Exploration, Inc. The survivors have appealed this judgment.

Clayton Tanner, at the time of his death, was employed by Air Equipment Rental Company (Air Equipment) on a casing crew. Enserch was the lease operator. Air Equipment had been hired by Enserch to run casing at a well site they operated near Hallettsville. BD & K Production Company (BD & K) was the company that had been hired by Enserch to perform the drilling services. On the day of the accident, Air Equipment, in preparing to run the casing, connected their equipment to the mud system on the drilling rig in the customary manner. Tanner was apparently holding the end of a flexible hose which had been placed in the end of a joint of casing. He was waiting for the driller to begin pumping the mud so that he could fill the joint casing with drilling fluid. This particular drilling rig had two mud pumps, which were owned by BD &K. The stand-by pump which the driller initially turned on apparently did not operate properly, so the main pump was engaged. When this pump was turned on, apparently pressure from inside the mud line was so great that it caused the mud line to "fly up," striking Tanner on the head. He subsequently died from injuries received as a result of this accident. The plaintiff alleged various theories of negligence on Enserch's part in their pleadings, but submitted a general negligence issue to the jury, which they answered in favor of Tanner's survivors.

Edward Vaughn, the production supervisor and on-site "company man" of Enserch at the time of Tanner's death, testified that "lost circulation material" had been put into the mud system. "Lost circulation material" is a substance put into the mud system which is designed to prevent the drilling mud from escaping into the subsurface formations. This is termed "losing circulation." This material acts as a kind of sealant and changes the viscosity of the mud to a degree. ¹ Appellants' theory of the case is that the introduction of the "lost circulation material" and other material into the system necessitated by a prior blow-out at the well site created a dangerous condition on the premises. They claim that, had the crew known that lost circulation material was present in the mud and that there were pump problems, precautions could have been taken to prevent the accident. They assert that, by not informing Tanner of the presence of lost circulation material and other materials in the mud, Enserch created a hazardous condition involving an unreasonable risk of harm to Tanner which proximately caused the accident resulting in Tanner's death. The parties stipulated that both BD & K and Air Equipment were independent contractors on the occasion in question.

Appellants seek to recover against Enserch on a premises liability theory. The legal duty of an owner/occupier of land is to use reasonable care to make and keep the premises safe for the use of business invitees. In order for appellants to recover from Enserch, they must prove:

1. that Enserch had actual or constructive knowledge of some condition on the premises;

2. that the condition posed an unreasonable risk of harm to Tanner;

3. that Enserch did not exercise reasonable care to reduce or eliminate the risk; and

4. that Enserch's failure to use such care proximately caused Tanner's injuries.

Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983). The Supreme Court has abolished the "no duty doctrine" and has determined that premises liability cases should be tried upon general negligence principles. Corbin v. Safeway Stores, Inc., 648 S.W.2d at 295; Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978). The long-standing rule that a plaintiff must prove the existence and violation of a legal duty owed to him by the defendant to establish negligence liability remains in tact. Three elements must be proven in order to establish liability for negligence: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately resulting from the breach. Abalos v. Oil Development Company of Texas, 544 S.W.2d 627 (Tex.1976). The basic duty of a landowner/occupier to business invitees is to exercise ordinary care to maintain the premises in a reasonably safe condition. Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975); Seideneck v. Cal Bayreuther Assoc., 451 S.W.2d 752 (Tex.1970). An employer is generally not liable for the acts or omissions of an independent contractor or the independent contractor's servants. Gaspard v. Cox, 583 S.W.2d 877 (Tex.Civ.App.--El Paso 1979, writ ref'd n.r.e.). An owner/occupier of land, however, may become liable for injuries sustained by an independent contractor where the employer assumes control of the work. J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.).

In order to sustain the judgment of the trial court in granting appellees' motion for judgment notwithstanding the verdict and motion to disregard jury findings, we must determine that there is no evidence to support the jury's findings. Meyer v. Mack Sales, Inc., 645 S.W.2d 493 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.). We will review the record in a light most favorable to the jury's findings, considering only the evidence and inferences which support those findings, rejecting any evidence to the contrary. Williams v. Bennett, 610 S.W.2d 144 (Tex.1980); Dodd v. Texas Farm Products Co., 576 S.W.2d 812 (Tex.1979).

Appellants alleged in their pleadings specific incidents in which Enserch was negligent, including: (1) selection of the method of filling the casing with mud, (2) failing to require that mud lines be cleaned out prior to the commencement of the casing crew operations, (3) failure to require that the safety of the mud system be checked before the casing crew began using the fill-up line, and (4) failure to warn Clayton Tanner that the mud was highly viscous.

The basis of their argument on appeal, however, appears to be that Enserch breached a duty owed to Clayton Tanner by failing to warn him of the presence of "lost circulation" material and other materials in the mud. They assert that the use of this material created a condition which, without the knowledge of its presence, created an unreasonable risk of harm to him. Appellants further seem to suggest that there was evidence in the record to show that Enserch, through the presence of the "company man" on-site, interfered with the efforts of BD & K when the pump malfunctioned. The "company man" was customarily present until after the casing crew obtained the circulation of mud through the casing.

The initial question presented is whether the defendant created or maintained a condition on the premises involving an unreasonable risk of harm. Under the appellants' theory, we must determine whether there is any evidence to show that the presence of "lost circulation" material in the mud system or the actions of the company man on-site created a dangerous condition on the premises. The undisputed evidence was that, on this particular site, they were losing returns. Lost circulation material was put into the mud system to stop the lost returns. Carol Gibson, the tool pusher for BD & K testified that about ten out of one hundred wells that he had worked on had utilized lost circulation material in the mud in order to prevent lost returns. David Shelton, a member of the casing crew, testified that he had been in situations before where lost circulation material was being used. He said the equipment that the casing company owned and used was supposed to be able to handle all types of mud. Shelton further indicated the casing crew handles their duties in the same way regardless of the viscosity of the mud. He indicated that the crew had not been informed that lost circulation material was being used. If he had known, Shelton claimed he "would have gotten out of the way and got the other people out of the way." Roy Curlee, also on the casing crew, testified that the job would be done the same way with or without the presence of lost circulation material unless informed of a problem with the pump or something else. He claimed that if those conditions existed, one would have to chain down the hose or get off the floor. He testified that he was not informed of lost circulation material in the mud system. He indicated that generally the lines are cleaned on the drilling rig and mud pumps before the operations begin. Ralph Church testified that he was not informed that lost circulation material was being used. If he had known, he said that he might have paid more attention to it. He claimed that the crew usually does not know what is in the mud, but one can usually tell if there is lost circulation material in it. It appears from the record that Enserch was aware of the presence of ...