Opinion
Cause No. CV 04-168-BLG-RFC-RWA.
July 20, 2006
FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pending before the Court are defendants' motions for summary judgment in this personal injury action resulting from the death of plaintiff's decedent, Steven Stensaker, in an oil field accident. Having considered the briefs of the parties, the materials submitted in support thereof, and the arguments advanced in open court on July 11, 2007, the undersigned makes the following findings and recommendations.
BACKGROUND
Defendant Flying J Oil Gas, Inc., operates an oil well known as Land Tronson No. 4 in Sheridan County, Montana. Located on the well site is a Lufkin Mark II pumping unit manufactured by defendant Lufkin Industries, Inc. The pumping unit features massive, rotating parts, particularly the counterweights.In December 2001, Flying J hired Sun Well Service, Inc., to replace the pump and rods in the Land Tronson oil well. When the Sun Well crew first arrived at the job site on December 21, 2001, they opened the electrical breaker box and padlocked the box to make sure the power could not be turned on while they were working on the well. This safety procedure — locking off the power at the breaker box — is known as "lock-out/tag-out."
Steven Stensaker was employed by Sun Well as a laborer. He was part of the crew who worked on the well on December 26, 2001. That evening, the crew finished changing the pump and rods. They left with the unit pumping, the guardrail around the well, and no padlock on the breaker box.
They returned the following morning to clean up the site and "rig down," that is, take down Sun Well's derrick and other equipment on the workover rig. As part of this process, John Salwey, the crew supervisor, shut down the pumping unit and applied the brake. Because the brake did not hold properly, Salwey determined that a brake adjustment was required. Prior to commencing the adjustment, he conducted a safety meeting with the other two crew members, Stensaker and Clyde Petty. He assigned Petty to assist with the brake adjustment and directed Stensaker to continue cleaning up around the well site, picking up tools and pieces of debris resulting from replacement of the rods. Salwey told Stensaker to stay away from the pumping unit while the brakes were being adjusted.
The "lock-out/tag-out" procedure was not used in adjusting the brake on the pumping unit. Instead, Salwey used the switch near the brake handle at the back of the pumping unit to turn the power on and off.
To adjust the brakes, Salwey switched on the electric motor, rolled the counterweights around, set the brake with the counterweights up, switched off the motor, and then released the brake, letting the counterweights move to a neutral position. Petty then climbed up the guardrail and used a wrench to tighten the brake high and toward the back of the pumping unit. After Petty climbed back down outside the guardrail, Salwey switched on the electric motor and rolled the counterweights around to set the brake. He determined that the brake still did not hold adequately, so, without informing Stensaker, decided to repeat the process.
Salwey once again switched off the motor, released the brake, and let the counterweights go to a neutral position. Petty climbed up, tightened the brake, and climbed back down. Without ascertaining Stensaker's location, Salwey switched on the electric motor, rolled the counterweights around, and set the brake. He and Petty heard a noise as the counterweights rolled up. They walked to the front of the pumping unit and found Stensaker lying dead under the guardrail.
The guardrail at the front of the unit was unhooked and partially open in the corner where Stensaker was lying. It appears that Stensaker had been attempting to retrieve a cardboard box filled with rubbish that was located within the guardrail when he was struck and killed by the counterweights.
Plaintiff, individually and as personal representative of Stensaker's estate, brought this action under theories of premises liability against the Flying J defendants and strict products liability against Lufkin Industries, Inc. Defendants have moved for summary judgment on the claims against them.
DISCUSSION A. Summary Judgment Standards
Summary judgment is appropriate when the pleadings and materials on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party must initially demonstrate the absence of any dispute over material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to show that specific facts remain at issue, preventing the entry of summary judgment. Kaiser Cement Corp. v. Fischbach and Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949 (1986). The court must view the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).
B. Flying J's Motion for Summary Judgment
The Flying J defendants contend that Flying J Inc., Flying J Exploration and Production Inc., Flying J Petroleums Inc., and Flying J. Corp. should be dismissed from the action because they have never owned or operated any interest in the Land Tronson well, well site, pumping unit, or underlying lease. Plaintiff concedes the issue. Accordingly, these defendants should be granted summary judgment.
The remaining Flying J defendant, Flying J Oil Gas, argues that it, too, should be granted summary judgment because as the project owner or general contractor, it had no duty to Stensaker, the employee of an independent contractor. Flying J correctly points out that the general rule in Montana is that a general contractor or project owner is not liable for injuries incurred by employees of subcontractors or independent contractors. Beckman v. Butte-Silver Bow County, 1 P.3d 348, 350 (Mont. 2000). Montana recognizes three exceptions to this general rule:
(a) Where there is a nondelegable duty based on contract;
(b) Where the subcontractor is engaging in an inherently or intrinsically dangerous activity; or
(c) Where the general contractor has negligently exercised control over the subcontractor's work.Id.
The first exception does not apply here, as plaintiff does not argue that there was a written contract between Flying J and Sun Well with a provision establishing that Flying J assumed responsibility for Sun Well employees' safety at the well site. See Stepanek v. Kober Constr., 625 P.2d 51, 55 (Mont. 1981). Thus, the issues are whether (a) Flying J is vicariously liable for the negligent acts of the Sun Well employees because the activity was inherently or intrinsically dangerous; or (b) Flying J is liable for its own negligent exercise of control over Sun Well's work.
Inherently dangerous activity. In Montana, "an employer is vicariously liable for injuries to others caused by a subcontractor's failure to take precautions to reduce the unreasonable risks associated with engaging in an inherently dangerous activity." Beckman, 1 P.3d at 353.
The question is, when is an activity inherently dangerous. In Beckman, the Montana Supreme Court overturned a long line of cases holding that an activity is not inherently dangerous if standard precautions can be implemented to avoid the risks associated with the activity. See, e.g., Kemp v. Bechtel Constr. Co., 720 P.2d 270 (Mont. 1986); Kemp v. Big Horn County Elec. Co-op, Inc., 798 P.2d 999 (Mont. 1990); Micheletto v. State, 798 P.2d 989 (Mont. 1990). In Beckman, the court held that the proper focus is upon the nature of the work performed, rather than the type of precautions necessary to counter risks inherent in the work. 1 P.3d at 353. Although a general contractor is not liable for every tort committed by a subcontractor engaged in an inherently dangerous activity, it is "vicariously liable for those torts which arise from the unreasonable risks caused by engaging in that activity." Id.
Flying J maintains that none of the activities engaged in by the Sun Well crew at the time of the accident were inherently dangerous. Flying J argues that neither picking up around the well site nor adjusting the brakes on the pumping unit involved any unreasonable, extraordinary, or unusual risks, and that if Stensaker had simply stayed outside of the guardrail, as he had been instructed, he would have been in no danger.
Flying J's argument, however, overlooks the enormous power and force of the pumping unit. By focusing on the nature of the pumping unit, rather than the precautions used to avoid risks, a jury could conclude that any work in the vicinity of the unit, even picking up garbage, was inherently dangerous. Indeed, a glance at the first page of Lufkin's operator's manual reveals that the manufacturer recognized and sought to warn about the grave dangers inherent in working around the unit:
B. SAFETY FIRST
ALL MECHANICAL SUCKER ROD PUMPING UNITS, OF NECESSITY, HAVE LARGE AND HEAVY ROTATING PARTS. IT IS ESSENTIAL THAT ALL PERSONNEL INVOLVED IN THE ERECTION, OPERATION, AND MAINTENANCE OF PUMPING UNITS USE EXTREME CARE, AT ALL TIMES, WHEN WORKING NEAR THESE HEAVY ROTATING PARTS. FAILURE TO DO SO CAN CAUSE SEVERE BODILY INJURY OR DEATH.
EVEN A TEMPORARILY STATIONARY PUMPING UNIT HAS COMPONENTS WHICH CAN START MOVING FROM THE EFFECT OF GRAVITY. ALL PERSONNEL SHOULD STAY CLEAR OF THE CRANKS AND COUNTERWEIGHTS OR OTHER ELEMENTS WHICH MAY START MOVING. TIMES OF PARTICUALR [sic] DANGER FROM ROTATING OR MOVING PARTS WOULD BE DURING . . . GENERAL UNIT MAINTENANCE, WELL SERVICING[.]
Ex. 11, Pl's Statement of Genuine Issues.
As the manual notes, the pumping unit may be particularly dangerous during times of maintenance and servicing. Accordingly, a jury might very well conclude that the Sun activities of brake adjustment and clean-up were inherently or intrinsically dangerous. A jury might also conclude that the Sun Well employees, who failed to warn Stensaker of the second brake adjustment and failed to ascertain his whereabouts before starting the motor again, may not have taken reasonable precautions to alleviate the risk to their fellow co-worker. At the very least, material questions of fact (including questions of Stensaker's own comparative negligence) preclude the entry of summary judgment.
Control. A general contractor may be liable to a subcontractor's employees if the general contractor negligently exercises control over a subcontractor's work. Beckman, 1 P.3d at 355. A general contractor may have a duty of safety to a subcontractor's employees if the general contractor "knows or should know that the independent contractor is performing work in an unreasonably dangerous manner, and if the employer retains the authority to direct the manner in which work is to be performed." Id.
There are questions of fact concerning whether Flying J retained the authority to direct the manner in which the work was performed. Flying J's safety manual required its independent contractors to follow safety policies, Sun Well submitted a daily report to Flying J detailing the activities performed each day, and a Flying J representative had visited the site while Sun Well was completing its job, although no representative was there when the accident occurred. Under these circumstances, summary judgment is inappropriate.
C. Lufkin's Motion for Summary Judgment
Under the doctrine of strict products liability, a manufacturer who sells a product in a defective condition, unreasonably dangerous to a user or consumer may be liable for injuries caused by the product. Brandenburger v. Toyota Motor Sales, U.S.A., Inc., 513 P.2d 268, 272 (Mont. 1973); § 27-1-719(2), MCA.
Plaintiff has identified three potential design defects in the Lufkin pumping unit: (a) lack of an interlock device that would have disabled the moving parts of the pumping unit when the surrounding safety guards were not set in place; (b) failure to design the safety guards so that they were not readily removable; and (c) lack of an auditory warning to alert those in the area that movement of the rotating parts is about to commence.
Lufkin nevertheless argues that it should be granted summary judgment because (a) Lufkin complied with industry standards; (b) it was not feasible to install interlock devices and auditory warnings; (c) the accident was caused by the superseding, intervening conduct of the Sun Well crew members; and (d) the lack of an interlock device was not traceable to Lufkin. None of these theories warrant the granting of summary judgment.
First, compliance with industry standards is, at most, evidence that the pumping unit may not have been defectively designed. There is a question, however, as to whether industry standards are even admissible, as the Montana Supreme Court has held that in some circumstances they may not be relevant in a products liability inquiry. See Lutz v. National Crane Corp., 884 P.2d 455, 464-65 (Mont. 1994) (holding that court did not err in refusing to allow evidence of industry standards). Certainly, compliance with the voluntary standards of its own industry cannot be a basis for entering summary judgment for a manufacturer.
Second, feasibility is a fact question, and, in this case, a matter of competing expert testimony. Again, it is not a proper basis for summary judgment.
Third, causation is also a fact question. Even if superseding, intervening cause is a defense in a products liability case, the question of causation should be left to the jury.
Fourth, it cannot be determined on summary judgment whether the alleged defects are traceable to Lufkin. A jury could find that Lufkin, as the designer of the pumping unit as a whole, including the power switches and guards, may be liable, even if it did not manufacture the motor that powered the unit. Again, the question cannot be resolved on summary judgment.
Plaintiff's products liability claims are simply not susceptible to summary judgment. Lufkin's motion should be denied in its entirety.
RECOMMENDATION
In accordance with the foregoing, the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), makes the following RECOMMENDATIONS:
1. Flying J's motion for summary judgment should be granted as to the liability of defendants Flying J Inc., Flying J Exploration and Production Inc., Flying J Petroleums Inc., and Flying J. Corp. These four defendants should be dismissed from the action.
2. Flying J's motion for summary judgment as to the liability of defendant Flying J Oil Gas should be denied.
3. Lufkin's motion for summary judgment should be denied.
Should the District Judge adopt these findings and recommendations, the undersigned further recommends that the District Judge conduct a conference to schedule the final pretrial conference and trial and related deadlines, including a deadline for filing motions in limine.
Under 28 U.S.C. § 636(b)(1) and Rule 72(b), Fed.R.Civ.P., the parties may have 10 days from receipt of this order to serve and file objections thereto.