Don G. Lynn v. Son's Drilling, Inc., et al.--Appeal from 189th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-124-CV

DON G. LYNN,

Appellant

v.

SON'S DRILLING, INC., ET AL.,

Appellees

From the 189th District Court

Harris County, Texas

Trial Court # 87-37815

O P I N I O N

This is a summary judgment case. Plaintiff-Appellant Don G. Lynn appeals from summary judgments rendered against him in favor of Son's Drilling, Inc. and Exxon Corporation.

This claim arises from an accident that occurred on August 22, 1985. Appellant was a stabber working for a casing crew, Texas Tong, Inc. Texas Tong had been hired by Appellee Son's Drilling to run casing into a well owned by Appellee Exxon. Appellant was injured when a snatch block attached in the upper part of the rig derrick gave way and struck Appellant on the shoulder. Appellant suffered a number of fractures in both the upper and lower part of the left arm.

Appellant brought suit against both Appellees alleging that Exxon was negligent in failing to provide a safe place to work, in negligent hiring in its decision to hire Son's Drilling, and in maintaining a dangerous premises in that the snatch block which injured Appellant was not properly attached to the drilling rig. Appellant alleged that Appellee Son's Drilling was negligent in failing to properly attach the snatch block, in failing to properly inspect the snatch block, in supplying a faulty snatch block, in failing to properly maintain the snatch block, and in failing to select a stronger or larger snatch block. Both Appellees answered and filed their motions for summary judgment which were initially denied but later granted. In their motions, both Appellees asserted that they owed no duty to Appellant at the time of the accident, and that Appellant's own testimony excused Appellees from any liability.

As stated, on the date of the accident, Appellant was working as a stabber for a company called Texas Tong, Inc. Texas Tong had been hired by Son's Drilling to run casing in a well owned by Exxon. The well was located about six miles south of Midland, Texas, in Midland County.

Appellant's job was to stand on a stabbing board located about forty-five feet up in the rig derrick. The drilling crew would roll a joint of casing onto the catwalk of the derrick. It would be pulled up into the V-door and raised up to where Appellant would reach the casing joint and align it so that the crew below could screw the new joint into the casing already attached. The joint was screwed in by using power tongs. The power tongs were suspended in the air at a stationary height by a line run through a snatch block in the upper part of the derrick and tied off at one of the rig's structural supports.

At the time of the accident, Texas Tong was using their own power tongs attached to a line and snatch block owned by Son's Drilling. The casing crew was running four and one-half inch casing called long string or production casing. The crew had picked up a joint of casing. Appellant had aligned and stabbed the joint. The crew was torquing it up, lowering the elevators onto the joint when the casing began to slip into the hole. Appellant saw that the casing was going into the hole, hollered for someone to latch the elevators, and pushed himself away from the joint of casing. The snatch block holding the power tongs was strained and gave way, striking Appellant.

An Exxon supervisor, Mr. Steve Messenger, was at the wellsite at the time of the accident. On the morning of the accident, just prior to its occurrence, Mr. Messenger had conducted a safety meeting.

At the time, Son's Drilling was working under the provisions of a written Master Drilling Contract between itself and Exxon. The working arrangement between Texas Tong and Son's Drilling was a verbal agreement.

Both Appellees filed motions for summary judgment on the ground that neither of them owed a duty to Appellant because at the time of the accident Appellant was an employee of an independent contractor. In his deposition testimony, Appellant stated that he did not know what, if anything, either Son's Drilling or Exxon had done wrong which might have caused the accident. In his responses to Appellees' motions, Appellant argued that Son's Drilling owed a duty because they were the owners of the snatch block which failed and injured Appellant, and that Exxon owed a duty because it had enjoyed and exercised sufficient right to control operations at the wellsite to expose itself to some responsibility to persons such as Appellant.

At the time of the accident, Appellant enjoyed the status of invitee at the wellsite. The operator of the well, Exxon, and the drilling company, Son's Drilling, enjoyed a mutual interest with Appellant's employer, Texas Tong. See Atchison, Topeka, and Santa Fe Railway Co. v. Smith, (Tex. App. Waco 1978, n.r.e.) 563 S.W.2d 660, 666. The owner or occupier of a premises can be held liable when it retains some control over a subcontractor's work and fails to exercise reasonable care in supervising that work. Redinger v. Living, Inc., (Tex. 1985) 689 S.W.2d 415, 418. There is evidence that Exxon did retain some supervisory control over not only Son's Drilling, but also Texas Tong. Moreover, there is language in the drilling contract which gives Exxon the control to forbid work being done at the wellsite in a dangerous or unconscionable manner.

Steve Messenger, identified as the Exxon supervisor at the wellsite by Exxon in its answers to Appellant's interrogatories, conducted a safety meeting on the morning of the accident. In his deposition, Appellant testified, "I didn't know Mr. Messenger was an Exxon man until . . . well, we had had a safety meeting before we ran pipe to make sure everyone knew their job. And then he let us go do the job." At the time of the accident, Exxon both held and exercised a right to control the manner in which the casing was being run at the wellsite. Both the right to control and the exercise of that right are considerations when determining a duty owed by one party to another in a situation such as exists in this case. Pollard v. Missouri Pacific Railroad Co., (Tex. 1988) 759 S.W.2d 670, 671; Newspapers, Inc. v. Love, (Tex. 1964) 380 S.W.2d 582.

As for Son's Drilling, it had the right to exercise some control over aspects of the casing operation, specifically the snatch block to which Texas Tong attached its power tongs, the same snatch block which failed and injured Appellant.

Appellees have urged in their motions for summary judgment that they should be excused for their negligence, if any, because there is some evidence that a "slip," a device at the floor of the rig intended to hold the casing in place, failed, allowing the casing initially to fall back in the hole. The slip was owned by Texas Tong. However, the negligence of one party cannot serve to excuse the negligence of another. Strakos v. Gehring, (Tex. 1962) 360 S.W.2d 787.

Appellees assert that Appellant's deposition testimony qualified as a judicial admission that excuses both Appellees from any liability they may have had regarding the cause of Appellant's accident. From our review of Appellant's deposition, it appears that the sum total of Appellant's testimony was that he was not sure exactly what happened at the time of the accident, and that the accident happened so quickly that he did not observe all of the things contributing to the accident, and that it was not until later that he began to understand what happened. In appraising the value of the testimony of a witness, it is fundamental that the trier of facts has a right to take into consideration the opportunity the witness had to gain a true impression as to the facts to which he testifies. Aetna Life Ins. Co. v. Love, (Tex. App. El Paso 1941, dism. judgm. correct) 149 S.W.2d 1071, 1076; Strickland Transportation Co. v. Ingram, (Tex. App Texarkana 1966, writ dism'd) 403 S.W.2d 192.

Appellees have cited Appellant's deposition testimony pertaining to the slips at the floor and what part they may have played in the accident. Appellant's testimony was that he did not know what the condition of the slips was and that he had only heard later that they may have failed.

A witness is generally permitted to testify only to facts within his personal knowledge. He is not permitted to express an opinion since this invades the province of the trier of facts. Loper v. Andrews, (Tex. 1966) 404 S.W.2d 300, 305. Testimony which is conjectural or speculative is inadmissible. Pooler v. Klobassa, (Tex. App San Antonio 1967, no writ) 413 S.W.2d 768, 770. Appellant has not been characterized as an expert and certainly should not be competent to testify to an opinion as to ultimate negligence or cause of his injury. See Flores v. Missouri-Kansas-Texas Ry. Co., (Tex. App. Dallas 1963, n.r.e.) 365 S.W.2d 379.

A party's testimonial declarations which are contrary to his position are quasi-admissions. They are merely some evidence and they are not conclusive upon the admitter. Mendoza v. Fidelity & Guaranty Ins. Underwriters, (Tex. 1980) 606 S.W.2d 692, and the cases cited at page 694. The weight to be given such admissions is to be decided by the trier of fact. These are to be distinguished from the true judicial admission, which is a formal waiver of proof usually found in pleadings or in stipulations of the parties. See U.S. Fidelity & Guaranty Co. v. Carr, (Tex. App. San Antonio 1951, writ ref'd) 242 S.W.2d 224, 229.

In a summary judgment proceeding, the proponent of the summary judgment motion must prove each and every element of its claim conclusively, and the burden is on the proponent to show that no genuine issues of material fact exist in the cause and the proponent is entitled to judgment as a matter of law. MMP Ltd. v. Jones, (Tex. 1986) 710 S.W.2d 59. The movant has the burden to establish the absence of any material fact issues and all evidence favorable to the non-movant must be taken as true when considering the existence of such fact issues. Doubts must be resolved in favor or the non-movant and reasonable inferences must be indulged in non-movant's favor. Nixon v. Mr. Property Management Co., (Tex. 1985) 690 S.W.2d 546, 548.

In the case at bar, the summary judgment evidence raises material fact issues concerning the duty and negligence of both Appellees, which we have herein discussed.

We hold that both summary judgments were improperly granted and, accordingly, reverse and remand the trial court's judgments for trial on the merits.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Justice James (Retired)

Reversed and Remanded

Opinion delivered and filed January 19, 1994

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