Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^* 

We are asked to decide whether the district court properly admitted certain testimony and properly directed a verdict in this diversity action involving an oil drilling rig accident in Montana.

Viola Feiock ("Feiock") brought this action as guardian of her son, Dale Feiock, who was injured during the course of his employment. The defendant, Simmons Drilling, Ltd. ("defendant"), is the parent company of Dale's employer, Simmons Drilling, Inc. ("Simmons Inc.").

Because a hinge on a beaver slide leased by the defendant to Simmons Inc. was defective, Simmons Inc. devised a method using ropes to set up the slide on the oil drilling equipment. During the course of that procedure, a rope broke and the injury complained of occurred.

* Feiock's first claim was for breach of Montana Code Sec. 70-8-101, which codifies the lessor's duty to deliver personal property in "a condition fit for the purpose" for which the property is let. The court granted defendant's motion for a directed verdict on that claim.

Before trial, the trial court granted summary judgment to Feiock on defendant's eighth defense, which purported to absolve defendant because it, "at all times prior to the plaintiff's accident herein involved, was not aware of any defective or dangerous condition" on the leased equipment. Yet in granting defendant's motion for a directed verdict at trial, the court noted that Simmons Inc. was fully aware of the defect and continued to use the equipment without notifying defendant. Feiock complains of inconsistency between these rulings which violated the "law of the case" doctrine, and that she was prejudiced by the apparent reversal without notice and after she had already presented her evidence.

We reject Feiock's argument. The "law of the case" doctrine only obtains where a court has made inconsistent rulings. We agree with the trial court's explanation of its ruling:

It is true, as this Court has previously recognized, that defendant's lack of knowledge of the defect at the time the rig was transferred does not necessarily vitiate the existence of or otherwise affect the warranty of fitness implied under M.C.A. Sec. 70-8-101, which codifies the common law of bailments. However, defendant does not assert its own lack of knowledge in the present [directed verdict] motion, but instead relies now upon the state of Simmons Drilling, Inc.'s knowledge, and its conduct in failing to inform the parent corporation of the known defect. That issue was not previously raised by the parties on summary judgment and has not yet been addressed by the Court.

Directed Verdict Order at 2-3 (emphasis added).¹ 

II

Feiock's second contention focuses upon the negligence cause of action against defendant. Feiock challenges the trial court's admission of certain evidence that Simmons Inc. and Dale Feiock's co-employees were at fault for the injuries.

Prior to trial, the district court considered Feiock's challenge to defendant's twelfth defense, which asserted that " [p]laintiff's injuries and damages were proximately caused, in whole or in part, by abnormal or unintended misuse, abuse, or improper use of the oil drilling equipment ... by persons and/or entities other than defendant." Responding to Feiock's motion for summary judgment, the court ruled that the motion was granted "with respect to any attempt by defendant to apportion liability between itself and others"; nonetheless, the court recognized that defendant "may attempt to introduce evidence of the acts of others which bear on the issue of causation."

During the trial, defendant was permitted to introduce evidence of, and comment upon, errors and omissions of Simmons Inc. and Feiock's co-employees. There was no error or inconsistency here. The fact that the injuries also may have been caused in part by Simmons Inc. was no defense, as the trial court properly ruled. See Cordier v. Stetson-Ross, Inc., 184 Mont. 502, 508-09, 604 P.2d 86, 90 (1979). Nonetheless, if the acts of the employer or any other third parties completely obviated the causal link between defendant's negligent conduct, if any, and the accident, then defendant could not be prevented from making that contention. Cf. Dvorak v. Matador Serv., Inc., 223 Mont. 98, 106, 727 P.2d 1306, 1311 (1986) (proximate causation is negated by superseding intervening force, which may involve proof of another party's conduct).

AFFIRMED.