Thursday, June 23, 2011

Summary 2011 WY 98

Summary of Decision June 23, 2011

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Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name:  Van Patten v. Gipson

Citation:  2011 WY 98                      

Docket Number: S-10-0202   

Appeal from the District Court of Sublette County, The Honorable Marvin L. Tyler, Judge

Representing Appellant (Plaintiff):  S. Joseph Darrah and Christopher M. Brown of Darrah, Darrah & Brown, P.C., Powell, Wyoming.  Argument by Mr. Darrah.

Representing Appellee (Defendant):  Jason A. Neville and Keith J. Dodson of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.  Argument by Mr. Dodson.

Date of Decision: June 23, 2011

Facts:  Appellant worked as an entry level floorman.  The co-employees worked as driller and direct supervisor of the rig crew, as assistant driller and as derrickman.  All were working on a rig in Sublette County, Wyoming.  On the day of the incident, the rig manager directed the driller/supervisor and his crew to pressure wash the derrick during their shift.  The crew went to the driller’s cabin where they discussed the operation and filled out a job safety analysis and personnel hoisting pre-job checklist for washing the derrick.   Appellant was told to put on the manrider, a harness worn around the torso with a board attached to it to sit on.  The manrider was hooked to the tugger line, which ran from a hydraulic hoist located on the rig floor up through the derrickboard to the top of the derrick and back down.  At some point after Appellant was in the manrider but still on the rig floor, the crew realized the tugger line would need to be freed or else Appellant could not reach parts of the derrick with the pressure washer.  It was decided to raise Appellant in the manrider up under the derrickboard to open the storm gate and release the tugger line.  At the time, no one filled out a job safety analysis or personnel hoisting pre-job checklist for using the manrider to open the storm gate and free the tugger line. 

The derrickman operated the hoist to lift Appellant up beneath the derrickboard.  The derrickman lost sight of Appellant and asked the assistant driller to spot for him.  As Appellant was attempting to open the storm gate to release the cable, the assistant driller thought he saw him give the signal to be raised up.  The assistant driller signaled to the derrickman to hoist Appellant up.  As this was done, Appellant was pulled into the derrickboard and sustained a compression fracture in his thoracic spine.

The company investigated the accident and concluded the crew, and specifically the driller/supervisor, violated company procedure by allowing Appellant to be lifted to the derrickboard to open the storm gate and free the tugger line without filling out a personnel hoisting pre-job checklist.  The company docked the driller’s pay.  No action was taken against any other employees involved in the incident.  

Appellant filed a complaint alleging his co-employees acted recklessly, willfully and wantonly in various ways, including failing to perform a job safety analysis or obtain a permit before hoisting him in the manrider to release the tugger line, failing to instruct him on proper procedure for opening the storm gate, using the manrider instead of the ladder to ascend the derrick and open the storm gate, and operating the hydraulic hoist when he was under the derrickboard.  The co-employees answered the complaint and the parties proceeded with discovery.  The co-employees then filed a motion for summary judgment alleging there were no genuine issues of material fact supporting the claim that they acted willfully and wantonly and they were entitled to judgment as a matter of law.  The district court convened a hearing and, after considering the parties’ respective positions, granted the co-employees’ motion.  Appellant timely appealed.               

Issues: 1) Whether the district court correctly held the co-employees' conduct did not constitute willful and wanton misconduct; 2) Whether the district court correctly found their violations of the company’s policies did not amount to willful and wanton misconduct; and 3) Whether the district court correctly held that their individual acts could not be combined to establish willful and wanton misconduct on the part of each of them.   


The Court affirmed the order granting summary judgment to the co-employees.      

The Court found there was no evidence in the present case that Appellant said he would not use the manrider to free the tugger line, pointed out the danger of doing so or expressed concern for his safety.  Furthermore, evidence was presented in this case that other workers had used the manrider to unlock the storm gate.  And while there seems to be no question that the company’s written policies authorized use of the manrider only when there was no alternative, evidence was presented that it was fairly common practice to use it to open the storm gate.  Moreover, the co-employees here had no warning about the danger by the:  (1) injury of another employee; (2) refusal of other employees to work in the area; and, (3) expressions of concern to supervisors by still other employees.  The court noted that Appellant relied heavily on the company’s written policies and after the fact statements by upper level employees who were not present on the rig or involved in using a manrider.  In light of the testimony of those who were involved, these policies and statements did not establish a genuine issue of material fact on the question of whether the co-employees knew the operation was dangerous and intentionally disregarded the danger.  Affirmed.
C.J. Kite delivered the opinion for the court. 

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