*1 1128 by a misconstruc- Brown, writing The was caused for defect
change,
Justice
Chief
jurisdiction
of the trial court’s
tion
court said:
this
she is enti-
to
so that
initial refusal
decide
to
the 1983 amendment
We also find
on the motion.
a decision made
tled to have
F.R.Cr.P.,
35,
to be instructive.
Rule
to
trial court for
remanded
The case is
provides
pertinent
amended rule
quali-
judge who is
by a district
a decision
to reduce a sentence
part: “A motion
*
* *
the 1987 mo-
to
to decide whether
fied
act
days
after
may made
within
reduction,
updated
for
with without
tion
imposed
probation is
the sentence is
information,
date.
justifies relief
this
made
*.”
amendment was
revoked
This
by
considered
rules,
modification to be
designed to Action and
clarify the
and was
to
only to the term
will relate
above.
the trial court
purpose set out
effectuate the
obligation
not to the
of
made to
of the sentence and
Clearly, the
was
amendment
35,
change
clarify
not
its mean-
restitution.6
Rule
to
Likewise,
interpret
Rule
ing.
we will
our
proceedings
for
Remanded
further
similarly
ob-
to facilitate
obvious
conformity herewith.
jective.
Nelson,
change
then
made the 1987 specific
ming rules accommodated both relating a revo-
subject matter of Nelson additional probation and also the
cation re-
subject federal amendment lating to the motion undecided within BREBAUGH, “Jack” J.W. days. (Plaintiff), Appellant also, present purposes, the find We per- terminology of Nelson clarification Beisner; conclusive as related HALES; suasive and Kerry James William and amendment of this rule correction Freeman; and Dravo Coal (De- Specifically, effective June 1987. court Appellees corporation, Delaware Wyoming change made for fendants). rule pursuant the au- reason and the same 89-67. No. insight change thority and afforded Wyoming. Supreme Court rule. It was effective as to to the federal may have any motion reduction March 1990. period limitation after filed within the been 16, 1987.5 the effective date of June happens to finally must decide what
We petitioner. hold that the reason-
this We generally by case law provided time
able through rule extends
and the amended litigation.
period of her -effort continued jurisdiction granted argu- to limit the extended in oral sion 5. A further issue identified judge the effective date of the 1988 entered after the ment about the district to sentences peri- which increased limitation amendment od to one rule amendment. effective date year. are of the immediate aware change adopted at the rule which was use of the itself motion filed Arland directed The 1987 request of the district court bench of member question solely did time and confinement However, we provide longer time to act. pursue Consequently, we need not restitution. opinion advisory undertake to write an shall not parties in questions interest of third of vested rule the abstract without to redefine our own judgment” terminology of the the "reduced controversy and brief- of a the benefit ing by litigants case request sentence. Time March develop. It is if contentions provision the order restitution to amend the terminology Sep- that the order noted in its expired. has provided specific effective tember provi- no 1988 and made date December *2 12(b)(6), that court’s order and from C.P. summary judgment for three granting co-employees.1 *3 We affirm. as agree issues are parties that the them:2
Brebaugh has stated granting in court err I. Did district co-employee judgment to the summary Moriarity Douglas Spence, McCalla of J. genuine existed a defendants when there Schuster, Kennard F. Nel- Jackson and <& concerning culpa- fact issue of material Nelson, Kirkwood, & Copenhaver son of negligence? ble Laramie, appellant. failing to court err in II. Did the district Bostwick, Dixon of Murane & Patrick voir dire proper to conduct plaintiff allow Casper A. of John- and John MacPherson to worker’s bene- relative son, Rawlins, Noecker, MacPherson & fits? appellees. corporation-partner who takes III. Is a separate a independent duties under
Stanley Hathaway Hathaway, on K. partner- Kunz, management contract with the Speight & Pamela L. Jacklin “employer con- Stoel, Rives, ship considered an Boley, to be Tracy Pool Reeve Portland, Or., tributing required by law” under as Grey, amicus Jones <& so as Wyoming and statutes curiae, Constitution Bridger Coal Co. acquire immunity under the Worker’s CARDINE, C.J., THOMAS, Before by an em- Act from suit Compensation GOLDEN, URBIGKIT, JJ. MACY and ployee partnership? GOLDEN, Justice. FACTS (Brebaugh) re- Brebaugh
J.W. “Jack” 6, 1986, injuries January while ceived on mining operation a main con- In CCCC’s “splicing” procedure on a working on a mined coal from un- veyor belt carried the underground mine conveyor an coal belt The main derground uphill the surface. Hanna, employed Wyoming. He was near conveyor of three sections belt consisted (CCCC), Company a by County Coal Carbon U-2, U-l, designated and U-3. The U-2 general partnership formed Colorado belt, working on which (Dravo), Company a Dravo partners Coal fifty-four inches wide injured, was when Rocky corporation, Mountain Delaware 2,000 weighing at long, feet and about corpora- (RMEC), a Energy Company Utah pounds per or more foot. Resem- least ten tion. elongated bling general appearance band, conveyor the belt rested on a award rubber Although Brebaugh received an suspended ceiling from the Wyoming frame provisions of the under portion of the belt through mine shaft. bottom Compensation Act Worker’s contributing loop was about six to seven feet above employ- aas CCCC’s account sloping ground. The belt was a series er, against Dravo he filed a tort action together mechanical seeking fastened sections supervisory co-employees, four The mechanical fastener was fasteners. money damages personal for his recover by pin through together inserted the district held injuries. appeals from He W.R. fastener. dismissing under Dravo court’s order venture, partner- joint nership as well as the or appeal district court’s does 1. itself, employer summary judgment ship joint all granting for co-em- venture order ployee working pursuit partner- Kehrer. Paul purposes ship's joint venture’s business for brief, Company Bridger Coal In an amicus Compensation Wyoming Worker’s Act? part- all members of Are addressed this issue:
H31 training vulcanizing On occasion CCCCeliminated mechani- on the splicing this, “spliced” cal To procedure; performed fastener. do CCCC he had proce- objective the affected belt section. The three dure U-belts or four times. “splicing” procedure separate towas appellee Freeman, Hales asked a shift designated section, the belt cut foreman, assigned had regularly who fastener, out the mechanical add more belt mine, duties another section' of the necessary, overlap the loose ends of the Brebaugh’s take crew designated belt, together melt those loose ends area, enough determine whether device; heating means of a is step this last permit slack the belt existed splice, “vulcanizing.” called CCCC had available report finding to Hales. Freeman *4 manual, for use a Royalon Vulcanized took the crew to the area where the vulcan- Manual, Splicing which contained instruc- izing up. They station was set found that keep clamps tions to on at the belt all times the properly. U-2 belt was not centered making splice keep while and to tension They worked trying for several hours to belt, except on all the part for that of pull using down slack in the belt three-ton being the spliced. general belt With this come-alongs. They chain to were able mind, orientation in we turn our attention pull down slack. Freeman Hales called up to the leading facts and circumstances they and him enough told did not have to surrounding ques- the accident splice. slack to make the tion. go uphill Hales told Freeman to to a January 6, happened accident fifty-foot section of belt located above the shift, “graveyard” several hours into the belt drive mechanism and add that section midnight a.m., to 8:00 the shift Bre- passed to the belt. Freeman that informa- shift, baugh the worked. At start of that Hales, According tion on to Beisner. to Hales, appellee general CCCC’s foreman fifty-foot that placed section had been work, charge assigned of the appellee Beis- there some previously expectation time ner, foreman, splicing section to work on having to it into belt add at a later previously the U-2 at a belt location identi- date. Hales that in late sec- believed Kehrer, fied Paul the foreman on the tions of belt to the belt had been added U-2 previous shift. Beisner had Since little or at same location. He believed experience no procedure, with this Hales supervisors three had area been assignment training considered as a during operation. The crew then assigned Brebaugh, exercise. Hales Has- equipment, including moved their come- sel, Cook, and Schriner as crew members alongs clamps, uphill to the location under Beisner. Hales chose these crew designated by Hales. told them Freeman experience prior members based on their belt, they put clamps were to on the conveyor the mine and with belts. Al- pull pin, fifty-foot and insert the section though Brebaugh prior experience had no perform of belt. Freeman then left U-belts, splicing prior experience had he regularly assigned duties in another section splicing Although smaller section belts. of the mine. experience, Brebaugh modest about his tes- put designated At the the crew location production tified that as a man of belt five clamps on belt. each side of the Hassel years’ experience probably he was the best Brebaugh worked on one side of person respect trained at CCCC belt; Cook and Schriner worked on operation, repairs, and maintenance of sec- Working loop portion other. on bottom tion belts. Hassel had vulcanized U-belts belt, put clamps of the the crew both down- about ten times and had both classroom uphill hill belt spot from the on the on-the-job training instruction on the splice procedure. section where the was to be made. on-the-job Cook had received clamps, vulcanizing Attaching come-alongs training splicing on U-belts until belt performed procedure they up took the slack CCCC had dropped they about a little could remove three times. Schriner had also re- where they pins, ceived on-the-job pins. classroom instruction and After removed the possibility of the of the belt come-alongs the was unaware they loosened running Beisner coming free and loose. They splice. of the removed side downhill thought pins. He he clamp, get some belt come-alongs' and left side the downhill the crew’s work went return before allowing would the downhill section belt much further. ground. drop to the left, Beisner Hassel and point operation, After in the Hassel At this removing clamp. Ac- again tension discussed the substantial discussed him, Brebaugh, Hassel asked cording to uphill belt. remaining on the section of do?” Bre- you think we should According Brebaugh, Hassel was “What do answered, “Hell, I know.” discussing baugh don’t they charge. As were what said, “Well, they me to told He Hassel then do, Hales at their work area.- arrived said, Brebaugh then pins, clamp and take the off.” they asked them needed belt “Well, Bre- going to take it off.” two. I’m not Brebaugh answered needed going to remove Hales, baugh he was not are we testified Brebaugh asked “What Then clamp he “was afraid upper Hales going to belt?” do about He did “Well, going get loose and run.” clamp off was you can take replied, *5 personal danger, only danger the not ground.” the That was see drop it’ll to and to equipment. According damaging Hales the their conversation. substance of “Well, they Brebaugh, repeated, left. Hassel only a minute or so and he was there Brebaugh replied, to to it off.” he left to attend told me take Hales testified that wrench, yourself.” my help Bre- return “Here’s another work matter but intended to said, baugh you Bre- “You do what want splicing operation. thought He also to the * ** I charge, he can’t make take and do. baugh’s crew would a break You’re you.” they to their area before decision would be back along in their Accord- further work. were made the Brebaugh testified that Hassel Hales, he visited the work ing to before clamp. According the decision to loosen possible he had considered that it was site the Brebaugh, Cook and Schriner on other uphill end could run because it was the belt loosening also started side of the belt seeing visiting taut. After the site clamp their side. As Hassel loosened belt, enough he there was slack concluded slip- clamp, the belt started the nut on the run belt so that the belt would not said, “Jim, slip- ping. Brebaugh the belt’s clamps when the were released. said, “Yes, I know it.” ping.” Hassel Brebaugh gave him left, Brebaugh Hassel stood back and Hales Hassel and After gingerly spud very Hassel again on the belt. wrench. discussed the tension slip- and the belt started Brebaugh the tension loosened nut was concerned about then, suddenly it came loose ping again; drive they were above the belt Hassel, uphill. Schriner equip- and ran Cook and He had concern for the mechanism. belt, it. ment, trying to catch Bre- mind that ran after but it never entered his them, baugh you going are running danger called to “What started there was the belt Brebaugh testified, you “I do catch it?” told safety. did not to when to human He * * * If them come on back. there. foresee unsafe condition I possibility, I have foreseen a would point, Brebaugh thought the run- At that been there.” wouldn’t have a-way top would reach the con- belt later, top, come down the veyor, come around the or ten minutes Beisner About five them, past pile up down at According conveyor Bre- to their location. came Brebaugh According to it “very, drive. baugh, stayed very small the belt Beisner for the there, minutes or less Beisner was took about two period of time.” While top, go reach the around Brebaugh they run-away do belt to should asked what During that According back down. clamp top, come on the belt. about time, the other crew members period Hales’ Brebaugh, Beisner echoed earlier Brebaugh located. remark, to where was namely, clamp and the returned remove the time, Brebaugh did period ground. During that drop Beisner belt would
H33 co-employees think there was an condition. defending unsafe answered the thought asked complaint, generally denying Hassel where he culpable up. Brebaugh negligence allegations applicable would end answer- belt to them. did not know if it down to going ed he was July On Dravo filed a motion to down, or all the way the drive he 12(b).3 dismiss under W.R.C.P. Septem- On go see. Cook and testified would Schriner 22, 1986, ber trial court filed its order uphill run-away could hear belt as setting hearing on the motion for No- starting it on its course. downhill 6, 1986, On vember October Dra- simply stepped They convey- back from the vo filed the affidavit clerk of the or belt frame. court, district copy attached a Brebaugh’s of the court’s file of worker’s About this time toward walked claim. On October going the frame and was under- to walk pleading entitled, Dravo filed its “Submis- go it in order neath downhill to see 12(b),” sion of Affidavits Pursuant to Rule descending where downhill would which stated Dravo had filed the clerk’s As pass land. he started to the belt under affidavit and frame, also affidavit of James A. uphill. he heard a loud noise He Berneburg. Berneburg’s affidavit in- happened next, what “I described knew vice-president, general formed that he was something bad was happening about Dravo; secretary counsel and that time the area dust that CCCC filled full of seconds, general was a a matter Colorado couple within of a I formed RMEC; I Dravo and appellees was hit. had the belt me and I before Hales, Beisner, ground.” crumbled to the and Freeman were CCCC employees. *6 Brebaugh testified not think that he does 3, 1986, or anything
Freeman On others did November Dravo filed its intentionally legal to hurt him. does supporting He memorandum its motion in they think knew going the belt was to run. which it referenced and relied on the affi- words, “Everyone best to tried their davits of of court Berneburg. the clerk and keep equipment keep 14, 1986, running and Brebaugh On November filed his * * getting people hurt legal in opposition memorandum to Dravo’s he acknowledged motion which that complaint against In his and Dravo partnership by CCCCwas a formed Dravo Freeman, Hales, co-employees Beisner and requested and RMEC and more time in Brebaugh alleged they negligent were discovery which to conduct meet Dravo’s negligent following ways: culpably in the 12, 1987, motion. March On the trial court sent Brebaugh Freeman and his crew issued its decision letter which it in- dangerous inherently members do an parties granting formed the it was Dravo’s belt, namely, job, splicing the for U-2 gave motion. The letter indicates the court they adequate training had no and Brebaugh from November March to con- conveyor area on the he knew discovery Brebaugh’s duct and that counsel should have known was for unsafe they had told the had court conducted splicing. provide supervision He did not discovery but had no evidence to submit splicing operation, opera- for counter the motion. contrary pro- was tion done to standard 30, cedure. 1987, grant- the trial On March court ed In its order the Hales and Beisner told and his Dravo’s motion. court clamp members to release which refers to submission of affidavits. crew Dravo’s Dravo, securing place was belt at a time The order states as one of the CCCC, partners forming where knew or should have known Brebaugh, employing release would cause the belt to is entitled to the Wyoming out immunity run of control. same under the Work- 12(b)(6). 12(b) grounds granted, W.R.C.P. fail- as W.R.C.P. 3. Dravo’s included known upon to state a can ure claim which relief employees separate CCCC’s Although duties toward Act as CCCC. Compensation er’s duties that CCCC as apart its order of dismis- from the trial court certified pursuant employees. final W.R.C.P. as a order assumed toward its employer sal appeal, 54(b) 1989, filed notice of de- 21, court February trial On appeal this court dismissed appeal fol- Brebaugh’s This motion. nied its rea- had failed to articulate trial court lowed. Tader, its certification. Tader v. sons for 1065, (Wyo.1987). 1066 n. 737 P.2d ANALYSIS 13, 1987, defending co-em- April On I. Dravo’s Dismissal judg- summary filed a motion ployees surrounding Dra Considering the motion on facts The trial court denied ment. 12, 1988, dismiss, 14, a few July 12(b)(6) On October motion vo’s W.R.C.P. .the begin, automatically trial was to before the weeks hold that the motion we a motion to defending co-employees filed summary judgment. one converted denial of the summa- reconsider the court’s Associates, 741 P.2d & Mostert v. CBL began motion. before ry judgment Trial (Wyo.1987); Torrey Twi v. 1096-97 Dur- court ruled on that motion. the trial (Wyo.1986); ford, 713 P.2d Brebaugh’s told the ing voir dire counsel Williams, 703 P.2d Greaser v. judg- jurors money if a prospective 1985). Consequently, review the (Wyo. we action, Brebaugh from the ment resulted dismissing light court’s order Dravo trial repay the worker’s required by law to long-recognized often-stated of our he of the benefits two-thirds summary judgment Cyr standards. v. injury. for his work-related had received County Commissioners Board a mistrial. The trial court declared (Wyo. County, 780 P.2d Platte again defending co-employees 1989); Valley Corpo moved Big Milligan summary relying on the ma- judgment, ration, 754 P.2d parties previously terials submitted Brebaugh did not submit doc- Because since and case law from this court decided oppose filed uments to the affidavits previous denial of their earlier the court’s court, considered the trial we Dravo and *7 mem- parties legal Both submitted motion. any genuine issues first consider whether the considering After materials oranda. being Dravo’s one of material fact exist on memoranda, legal the the submitted and Brebaugh’s partners forming statu- of the summary granted the motion trial court torily contributing employer, partner- judgment. CCCC, being Brebaugh’s an ship and 1989, 3, January filed a On partnership. find employee of that We of the trial motion for reconsideration Next, Dravo, whether we consider none. dismissing Along Dravo. order court’s partners forming partner- as one of the motion, Brebaugh nu- submitted with the Brebaugh, entitled to ship employing is documents, including Dravo and merous pre- judgment as a matter of law. More agreement partnership and CCCC RMEC’s cisely, deciding, are as a matter of first we specifi- management Dravo’s contract partner enjoys the impression, whether a agree- partnership in the cally referenced immunity partnership under same as the partnership of the ment. The submission Compensation Act. Wyoming’s Worker’s management contract agreement and Wyoming and the Constitution4 opposed too late. Dravo obviously came Act5 Compensation Wyoming Worker’s a Brebaugh’s motion. submitted rights a provide employee’s covered of his mo- legal support memorandum of compensation the fund are in lieu from tion, contending Dravo’s under against that em- any rights and remedies Dravo assumed management contract (W.S. 10, Chapter 27- 14 as current recreated § 4. Art. 4. (1977)) July effective 1987. 14-101 to 804 (Worker's Compensa- Chapter 12 of Title 27 5. prior under the act. This case arose tion, 805) repealed 27-12-101 to in 1986 §§
H35
contributing
ployee’s
employer. Brebaugh
Commerce,
Chamber
748 P.2d
712-
of
acknowledges
his employer,
CCCCthe
13
Under Wyoming
Work
partnership,
liability.
is immune
tort
Compensation
er’s
distinguishing
Act the
Dravo,
part-
He claims that
one
of
two
employment
of
relationship
features
be
forming
partnership,
ners
does not
the employer’s rights
employ
come
enjoy
immunity.
disagree.
that same
We
ee's labor and to
the employee’s
control
performance
employ
of that labor and the
Recently,
State,
v.
ex
Hays
Wyo
rel.
corresponding rights
ee’s
Division,
Compensation
ming Workers’
injured
for that labor
and benefits
(Wyo.1989),
aligned
this court
work-related incident.
Wyoming
jurisdictions,
with majority
of
holding
partner
eligible
that a
is not
law,
Wyoming
Under
distinguish-
these
receive
an employee
benefits as
under the
present
relationship
features are
in the
legal
act. We
described
characteristics
partner
between a
em-
partnership
said,
partners
partnerships.
We
ployee.
partnership agreement
Unless the
partnership
entity separate
is not an
“[a]
otherwise,
provides
partners
equal
“have
partners.
from its
1C A. Larson [Work
rights
management
in the
and conduct of
Compensation
(1986)
men’s
Law 54.31
§
the partnership business.” W.S. 17-13-
Hays,
quoted
768 P.2d
with 401(a)(v)(June 1987 Repl.). Consequently,
approval from a 1926 decision of the New
partner
equal right
each
has
to control
York
Appeals:
copartners,
Court of
“The
performance
partnership
course,
principals
are the
employers
Likewise,
employee.
partners
person-
are
* *
Lyle
Lyle
*.
Vinegar
H.R.
Cider &
ally
partnership
liable for
obligations.
Co.,
67, 67-68,
N.Y.
N.E.
W.S. 17-13-307. Professor Larson states:
(1926).” Hays,
A.L.R. 840
receives
negligence”
“ordinary
for his contribution of
from
exchange
misconduct”
suits
program.
the tort-fea-
aggravating
to fund the benefits
factor of
premiums
by the
ruling
contributing
plaintiff
a
that a
require
The effect of
a
of mind. We
sor’s state
part-
individual
employer did not include
a
acted with
state
prove the tort-feasor
partners
have to
would
ners would be
intent to do harm.
approaches
of mind
premi-
liability
payment
endure the
plaintiff faces
appreciate that a
Since we
enjoyment of the corre-
ums without the
prove the tort-fea-
trying
task in
difficult
immunity
employ-
sponding
from
benefit of
mind,
plaintiff
state of
we allow
sor’s
ruling
This
would frustrate
ee suits.
has
a tort-feasor
inten
to demonstrate that
com-
policy underlying this state’s worker’s
tionally committed an act of unreasonable
reasonably possible,
pensation law. Where
or
disregard
of a known
obvi
character
carry
a statute to
out its
we must construe
make it
great
is
as to
ous risk that
so
underlying policy.
ex rel.
Lehman v. State
Ba
highly probable that harm will follow.
Compensation Divi-
Wyoming Workers’
Wells,
(Wyo.1989)
P.2d
ros v.
sion,
P.2d
We
1137;
Bryant, 728 P.2d at
stated in
We
preferable
“employer”
find it
construe
at issue and
[Wjhen
of mind is
state
it
partners
to include individual
because
especially
of an actor’s
when willfulness
act.
gives
policy
force to a
central
questioned,
is
courts should
conduct
grant summary judgment
reluctant
Judgment
Supervisory
Summary
II.
For
credibility is often a
the actor’s
Co-Employees
cases.
central issue
[Citation.]
Summary
A. Standards
of Review—
however,
presented,
does
If the evidence
Judgments
sufficient doubt
raise
[actor’s]
propriety
review of the
Our standards of
credibility,
party’s desire to test
co-employee
summary judgments in
cul-
preclude
jury
will not
statements
litigation
pable negligence
are well estab-
summary judgment.
Although we need not recite those
lished.7
in
describing the tort-feasor’s
In further
standards,
apply them in our
we shall
tent,
misconduct
we have also said willful
analysis.
“aspect
highly
unreason
takes on the
conduct,
departure from
or an extreme
able
Culpable Negligence
B.
Co-Em-
care,
high
where a
ordinary
situation
ployee Litigation
**
*
apparent.
degree
danger
is
[I]t
culpable
Co-employee
negligence
resulting
mistake
must be more than mere
is
well established
jurisprudence
likewise
confusion,
inexperience,
excitement
cases demonstrate.8
as the above-cited
thoughtlessness or
and more than mere
princi
give
following
us the
Those cases
inadventure,
simple inattention.” Dan
light
way in this case. The
ples which
our
Brown,
187,191 (Wyo.
culovich
"culpable negligence” means “willful
term
1979).
“will
misconduct.” The term
and serious
principles in a
applied
have
these
purposely,
ful” means “such
is done
*9
1986, beginning
variety
with
of cases since
knowledge
of such a
misconduct
—or
recently in
disregard Bryant, and most
Baros.
a reckless
character as
evince
also, Annotation,
Wanton,
341,
Wells,
Willful,
(Wyo.
See
P.2d
7. See Baros v.
780
342
1989);
Light
Stephenson
Coemployee
v.
Power &
as Ground
Reckless conduct
Pacific
1169,
(Wyo.1989);
Company,
1171-72
Compensation
779 P.2d
Liability Despite Bar Workers'
Goss,
(Wyo.1989);
Annotation,
v.
776 P.2d
190-91
Law,
(1987);
Case
Right
HS7
briefly-review
consequence
the facts of
Conoco, Inc.,
re-
In Johnston v.
758 P.2d
lating
(Wyo.1988),
inexperienced
to the tort-feasor’s
rig
conduct
sever-
hand
alleged
experienced
that his
al of these cases to assist
in obtaining
supervising
us
culpably negligent when,
driller was
appropriate perspective
using
in our review
a three-man crew instead of the standard
Brebaugh’s appeal.
In
we af-
Baros
operation
four-man crew in the
adding
judgment
firmed summary
super-
for the
joint
pipe
new
of drill
pipe already
to the
vising co-employee
knowingly operat-'
who
hole,
driller,
suffering
previ-
from a
malfunctioning
ed a
plain-
backhoe near the
ously injured right shoulder, mistakenly
tiff whom he had ordered to work in an
put power to the make-up tongs at the
supervi-
excavation area
violation of the
time,
wrong
causing
tongs
slip
recognized safety
sor’s own
standard. We
inexperienced
crush the
rig hand’s left arm.
supervisor’s
said that neither the
placing
In
deposition
his
testimony
injured
rig
employee
his fellow
in the excavation con-
hand stated his observations of how the
trary
safety policy
supervisor’s
nor the
injured
shoulder,
driller favored
right
operating a backhoe in need of mainte-
rig
but the
hand admitted he did not know
nance for a known malfunction demonstrat-
what
that condition had to do with the
supervisor’s
ed the
intentional commission
response
accident.
In
injured
to the
rig
of an act of unreasonable character in dis-
hand’s use of the
testimony
affidavit
regard of a known or obvious risk that was
another
rig
driller that the
could not be
great
highly
so
as to make it
probable that
safely
crew,
run with a three-man
harm
Baros,
would follow.
780 P.2d at
court
testimony
characterized that
as con-
346. We concluded that the evidence failed
clusory
lacking
specific facts;
supervisor
to show that the
was aware of
testimony was deemed insufficient to struc-
degree
danger
presented by
the de-
ture an issue of material
culpable
fact as to
fective
circumstances,
backhoe under the
negligence. This court
summary
affirmed
i.e.,
high
that there was a
probability of
judgment
supervisory
for the
driller be-
harm.
Id. at 346.
cause the evidence failed to demonstrate
that he had
Stephenson
In
acted with a state of
v.
mind
Light
Power &
Pacific
approaching intent to harm.
(Wyo.1989),
H39 Giving support re- up had the worker’s maintenance evidence Bre- torn condition, baugh’s every favorable quest concerning the boom’s tell- contention infer- ence, ing place writing his to we find that evidence fails to him it was not be show although company policy supervisory co-employees that of the requests such promoted requests employ- acted or to act with a state of its failed mind culpable negligence, Similarly, summary judg- ees. we reversed consistent with requires high risk of a co-employees ments for several other to known or obvious repeatedly complained probability of whom Case had harm. dangerous about the boom condition where Next, Brebaugh claims that the lo suggested ordered him to evidence making cation where his crew was despite dangerous climb its the boom condi- splice dangerous; was the location should tion That evidence presented or be fired. have been the drive mechanism below to genuine concerning of material fact issues holding that allow mechanism to aid in alleged ap- state of mind tort-feasor’s uphill portion in a stationary of the belt proaching an intent to cause harm. position. undisputed evidence shows Having principles in mind these co-em- Hales, Beisner, that not Freeman select ployee culpable negligence applica- and our ed the He did because a fifty- location. so forward, tion of them in cases from 1986 foot section with which to make of belt undisputed apply we them to the facts of splice spot. clearly was that The record surrounding inju- consequence Brebaugh’s that shows Hales visited that location and ry- by considering evaluated the situation amount of on the He tension belt. had agree are unable to Bre- We with possibly considered the belt could run that baugh’s that contention conduct of released; when clamp when was he Freeman, Beisner, and Hales surmounted had a visited location and first-hand simple negligence and reached the level of judgment enough look he made call that culpable Brebaugh negligence. claims that on the slack belt existed that the belt would co-employees these Bre- supervisory sent clamp run when the was released. baugh’s crew, consisting un may in hindsight judgment While splicing dangerous operation, trained in the criticized, no the record contains evidence perform operation supervi to without suggest his location selection was undisputed sion. The evidence is that Ha such a as to evince a character reckless supervisor charge
les was the disregard consequences. find no that shift. Hales Free on directed judgment evidence that his exercise of accompany man the crew in order disregard of an unreasonable character question report look at the belt a known risk that was so or obvious enough him slack to make whether existed probable great highly as to it make Beisner, splice. having in never been harm would follow. before, operation as volved in the signed by accompany supervisory Hales to the crew asserts Thus, have training co-employees for him. Free knew or should known exercise splicing respect man had no duties that CCCC the vulcanized man- and Beisner had available, containing instructions giving Brebaugh’s rise to ual the incident instance, injury. keep clamps our the belt at all times while In this focus is on making splice keep tension on all clearly Ha and to Hales. The record shows that Hassel, making splice, except les of the belt selected Cook Schriner to while part being spliced. splic of their for that He splice prior make the belt co-employees, experience. says supervisory training and It is also these Beisner, that, particularly failed to although clear no U- Hales had instructions he inform the of those splicing experience, had extensive crew Instead, he says, experience belts. Hales as failed follow them. with section gave orders to signed training Hales Beisner Brebaugh to this crew as a both securing clamps splicing operation. crew to release the exercise on the U-belt *12 Baros, in disregard similar affidavits P.2d at uphill portion of the belt 569; 345; Johnston, P.2d undisputed evi- Stun those instructions. don, Brebaugh 736 P.2d at has shows purposes dence of our review showing super no these presented evidence Brebaugh told that Hales and Beisner both visory co-employees actually knew that a that, drop to opinion, the belt would their run-away resulting personal injury belt and ground if released the crew members highly probable. No one recited were clamps. run-away instances of belts and in similar Hales Beisner left the After prior juries splicing operations. As members, intending to crew return before record, far as we can tell from the such an further, Bre- progressed the work much happened before at occurrence had never baugh Hassel continued to discuss Brebaugh mine. has raised no CCCC’s clamps. they release the whether should concerning supervisory these co-em doubt not Brebaugh his concern was stated that credibility. particular, In Bre- ployees’ equipment personal safety, but safe rather baugh has not cast doubt on Beisner’s and ty. The risk of harm to the crew members they Hales’ statements intended run-a-way not in the of a belt was event operation splicing return before him. The evidence likewise obvious to very progressed far and that their Hales, risk shows that was not obvious to run judgment the belt would not if the Beisner or Freeman. clamps were released. According Brebaugh, CCCCand these Upon careful review of the record and con- supervisory personnel always were guiding principles consideration of as safety employees, cerned for the law, find applicable we no reason to re- protection of equipment. well for the as judge’s grant verse trial decision supervi- Brebaugh did not think that these Hales, summary judgment for Beisner and run; sory employees knew the belt would alternative, Arguing in Bre- Freeman. they he did not think would act or fail that, urges although hold baugh us to no disregard safety act in reckless for the single part act or omission on the these co-employees. Although there a fail- supervisory co-employees culpa- constitutes instructions, un- ure follow manual’s cumulatively negligence, taken ble by the der all the circumstances shown rise to level of misconduct. do failure facts we do not find that to show decline appropriate find here and to so any supervisory state of mind on behalf of hold. co-employee revealing known or obvious to pass judgment invites us high probability risk of a of harm in the jury voir dire on worker’s his counsel’s reach same face of that failure. We during the aborted benefits Beis- respect conclusion with to Hale’s and disposition trial. Given our of this case on clamps. ner’s to release the “orders” presented, the main issues we need not relies on affidavit accept that invitation. witness, expert Youngdahl, opines who conclusion, Dravo, we hold that as a supervi acts or omissions of the employed member personnel sory constituted unreasonable injured employee, enjoys the same im- disregard known conduct in of a risk Further, munity employer. afforded an we might highly probable made that harm it all summary judgment appel- affirm follow. An affidavit that states a conclu lees. categorical sion or of an ultimate assertion summary fact cannot be used to defeat THOMAS, J., a specially filed Wierdsma, judgment. Greenwood v. concurring opinion. In this re URBIGKIT, J., dissenting filed a gard, Youngdahl’s find to be we affidavit opinion. conclusory and insufficient to meet the bur MACY, J., opinion concurring creating genuine filed an den of issue of material dissenting part. part fact. We reached the same conclusion
IIAI
*13
THOMAS, Justice, concurring specially.
separate
shall be and remain the
employ-
Owner,
ees of
shall be carried on its
dissenting
I have read with interest the
payroll
subject
and shall be
to its full
ease,
opinion
puzzled by
in this
and I am
charge, supervision, and sole discre-
placed
Swiezynski
the reliance there
* *
tion;
(Emphasis supplied.)
*.”
(1985).
Civiello, 126 N.H.
report
general super-
to Contractor. The
management
day-to-day
vision and
Against
Company
Suit
Dravo Coal
operation of the Facilities shall be under
Company
Rocky
Dravo
Moun-
Coal
charge
and control of the General
Company
partnership
Energy
tain
formed a
Manager.”
County
called Carbon
Coal
specific
This is a
partners
retention
Company.
County
Company,
Carbon
Coal
legal rights management.
of their
owner,
sepa-
entered
a second
into
“management
pro-
The
contract” further
management
rate
contract with Dravo Coal
vides,
pertinent language:
Company
Company
from which Dravo Coal
* * *
Scope
per-
“2.02.
the Work.
power
responsibility
secured exclusive
Work, Contractor,
formance of
its
manage
County
Compa-
the Carbon
Coal
through
Manager
the General
or other-
engaged
mining opera-
ny employees
in the
wise, will,
of,
on behalf
and in the name
contract,
management
tion.
It is this
of, Owner:
agreement,
not the
that should
“(a)
discharge
provide
hire and
all
the decisive information for settle-
labor and em-
ployees,
appeal.1
and such labor and
ment and resolution of this
With-
contract,
"management
part
management
Coal
contract” is found as
1. The
Dravo
Company,
of the record in Pool v. Dravo
Company designated
Coal
"contractor” and Carbon
grant summary judgment.
MACY, Justice, part concurring in
dissenting part.
. agree majority’s I with the decision that which, Company employer
Dravo Coal is an