5 N.M. 480
N.M. Ct. App.2014Background
- Sherman, a toolpusher employed by independent contractor Patterson-UTI, fell over a rig handrail after being awakened by Cimarex’s drilling consultant, Thomas Smith, and was injured while performing work on a well site owned/operated by Cimarex.
- Patterson contracted to perform drilling services “under the direction, supervision and control of [Cimarex],” and the contract included provisions addressing allocation of responsibility and safety program adherence.
- Sherman had been working an irregular schedule (allegedly up to twelve consecutive days overall; five days on that site) and coworkers testified he appeared tired before the accident.
- Cimarex moved for summary judgment arguing it owed no duty to Sherman because it lacked responsibility for Sherman’s fatigue or schedule and had no obligation to monitor Patterson’s employees.
- The district court granted summary judgment for Cimarex on the basis there was no duty; the Court of Appeals reversed, holding factual disputes precluded summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cimarex owed a duty to an employee of an independent contractor | Sherman: Cimarex retained supervisory control over Patterson and thus owed a duty under Restatement §414 | Cimarex: As employer of an independent contractor, it owed no duty absent control or awareness of impairment | Reversed summary judgment — factual disputes about Cimarex’s supervisory control preclude deciding duty as a matter of law |
| What standard governs retained-control liability | Sherman: Any supervisory control can create a duty to exercise that control reasonably | Cimarex: Duty requires actual knowledge of incapacitation and affirmative intervention | Court: Restatement §414 applies; supervisory control can create duty without the stricter showing of actual-knowledge-plus-affirmative-action used in some Texas cases |
| Whether Cimarex breached any duty (knowledge of fatigue) | Sherman: Evidence (coworker testimony, Smith’s knowledge) supports that Cimarex knew or should have known of fatigue | Cimarex: No awareness of schedule or fatigue; did not create the work conditions | Held: Issues of fact exist on what Cimarex knew or should have known — breach is for the factfinder |
| Causation and apportionment of fault | Sherman: Cimarex’s failure to act (if it had supervisory control) contributed to the injury | Cimarex: Even if it observed dangerous practices, responsibility remains with Patterson for its employees | Held: Causation and fault allocation are fact questions for the jury; prior authority about mere right to stop work pertains to causation, not duty |
Key Cases Cited
- Tipton v. Texaco, Inc., 712 P.2d 1351 (N.M. 1985) (degree of control affects employer’s duty to independent-contractor employees)
- Valdez v. Cillessen & Son, Inc., 734 P.2d 1258 (N.M. 1987) (retained control facts can create jury issues and defeat summary judgment)
- Pollard v. Westinghouse Elec. Corp., 895 P.2d 683 (N.M. Ct. App. 1995) (extent of duty tied to kind of control retained or exercised)
- Hinger v. Parker & Parsley Petroleum Co., 902 P.2d 1033 (N.M. Ct. App. 1995) (duty and jury instructions on retained control are fact-driven)
- Otis Eng’g Corp. v. Clark, 668 S.W.2d 307 (Tex. 1983) (alternative rule requiring actual knowledge of incapacity plus affirmative action — discussed but not adopted here)