Leo Parsons v. Amerada Hess Corporation v. B & M Service Company, Inc., Third Party
422 F.2d 610
3rd Cir.
1970
Check Treatment

*1 Plaintiff, Appellant, PARSONS, Leo CORPORATION,

AMERADA HESS Appellant, Defendant, Appellee, Inc., COMPANY,

B & M SERVICE Defendant, Appellee. Party Third 141-69, 140-69, 142-69.

Nos. Appeals, States Court of

United

Tenth Circuit.

Feb. M., Hobbs, Reynolds, N.

Warren F. plaintiff, appellant. Roswell, Thompson, N. M. Rufus E. Miller, Tulsa, Okl., (John S. defendant, appellant. brief), appellee, M., third Cowan, Ray Hobbs, N. C. defendant, appellee. party Judge, MURRAH, LEW- Chief Before Judges. HOLLOWAY, Circuit IS *2 MURRAH, Judge. storage oil Chief tank producing at one of its gas oil Hobbs, and leases Mex- near appeal summary judgment from a A ico. Mr. and the Perchard decedent involves tort Amerada Parsons, young a dental student with Corporation employee of Petroleum to an oil experience some field who had been contractor, its &B M Serv- day, hired that were B & M sent Company. ice And it also involves perform They proceeded the work. liability of & M to Amerada contract B the lease equip- in a B M& truck with for de- losses incurred in the successful designed perform ment signment. the work as- wrongful employee’s fense of the death employees No Amerada appeal primary action. The is from present at the time Perchard and Par- judgment nonliability of Amerada any sons arrived at the tank or at time cross-appeal from the tort claim. The during of the work. part judgment in which storage The tank was used of sour refused, unnecessary, trial containing hydrogen sulfide, oil crude adjudge B M of & to Amera- deadly poisonous gas, which be de- can indemnity da their conventional quantities by tected small the odor of question The contract. ultimate is wheth- eggs rotten but is con- undetectable er, resolving all factual doubts quantities. arrival, Upon centrated Per- summary judgment, genuine issue top chard hatch removed the at the affidavits, pleadings, of fact survived the permit escape gas tank and documentary depositional evidence. They fumes. then unbolted removed Company Construction Fire- Fischer v. upper plate,” “clean out and Per- (10th man’s Fund Ins. escap- chard cautioned Parsons that the Cir.). relevancy and The conclusiveness ing gas was and to stand depend upon na- the record facts where he “wouldn’t breathe it.” The two legal duty imposed ture of the on Amer- blowing so away stood that the wind was employee by applicable ada to B & M’s “quieted from it them until down.” New Mexico law. They placed then the tank hose in pump connected it to a suction basic facts that Amer pump truck to out the amount of small lease ada entered into a “master well and conically oil shaped and sediment in the governing B & service contract” M bottom of the tank. performed all B & work to M under subsequent verbal or orders written pumping process After had been any type of or wells about service completed, a small amount of sediment to, leases, including or labor, not limited but making “gauge plate,” remained service, repair, and the technical necessary go it into the to clean or maintenance installation material They provided by it. took a mask agreement equipment. provided or B & off it onto M the fitted truck and direc that “Amerada have no [was to] Parsons. around The mask was fitted tion or em or control body. the face and buckled Parsons’ agents ployees except the results An air hose in the direc- was extended be obtained.” While contract Par- tion wind and staked down. legal relation evidence of conclusive tank, sons entered the walked cogent ship parties, it is to be sure around, gauge plate, it, wiped turned King of it. evidence Southwestern in- fell walked toward the entrance and Lines, (10th Greyhound F.2d 497 removing instantaneously side, mask. any Cir.). not seem to be And there does immediately the tank Perchard entered relationship of Amerada doubt that get head and was able to Parsons’ in and B was that of M did not He shoulders out of the tank. dependent contractor. respond respiration to artificial August, 1966, verbally regained or- Death Amerada consciousness. never designated hydrogen tox- dered B & M to crude clean a was attributed to sulfide persons icity sulfide from from recover negligence of his tank. con- when tractor cleaning specialize B did not & M dangerous. tracted work is tanks, it services it one Pendergrass Lovelace, 57 N.M. Per was not do. chard contracted 262 P.2d 231. The reason this ex- *3 cleaning specialist in the course tank ception general nonliability to the rule of employment perform he did this of his employer negligence of an for the of his years B 18 with & M. his service for independent contractor seems to be that probably a hun- B he cleaned & M had owing of the due care to third many tanks, sometimes as dred or more persons in the performance of extrahaz- year, as and Perchard was aware 15 a should, pub- work ardous as a matter of had found in tanks which nondelegable. policy, lic is this poisonous. He contained sour crude was though pains employer so is even at helper had another and another cleaned competent to select a contractor and re- containing sour crude about two tains no control over the manner or the using gas mask the same weeks before means of the con- purpose used on for this furnished tracted work. signs day. particular There this warning dangerous gas the work at yet court The has not said any employee site, Amerada nor did employees independent whether of an the man- or direct undertake instruct pro contractor are included within cleaning out ner and the means persons tected class of third when tank. is the contracted work inherently dangerous.1 admin But by B M’s Work- & was covered Parsons is sure that it would do so istrator statutory Compensation, and bene- men’s this case like ours. basis for assur paid. de- suit fits have been is the restatement of the decisional ance impose seeks cedent’s administrator 413, law found in 416 and 427 Sections negligently fail- on Amerada 2d, Torts, of the Restatement which un ing care warn to exercise reasonable subjects der conditions the em variant from protect Parsons ployer independent of an presence of the created condition liability “to work others” when the to be gas. hydrogen sulfide performed likely peculiar to create a physical harm un statement unreasonable risk clear We start precautions permits special third taken2 or less law which are New Mexico authority split 777, 591; Florida Wash.2d 399 is a definite 65 There Light Price, exception to em v. So.2d this extends & Co. 170 Power whether Skelly (Fla.) ; Co., ployees v. Oil Some 293 Corban of tlie contractor. Cir.) ; Sword, (5th holding to em Hous extends 256 F.2d 775 cases Co., ployees v. Ins. Intervener v. are: Watson ton Fire Cas. of the contractor Cir.) Co., (5th ; Ry. Corp., N.C. Gulf Oil 251 829 Co., 164 Mountain Black Employers Mallory Hurst, 175; Pure Intervener v. Cas. Louisiana 80 S.E. (5th Corp., Supply 251 v. Gulf Oil F.2d 836 6 S.W.2d 320 Mo. Ice and Adm’x, Cir.). 617; Jennings v. Vincent’s 284 537; Ky. 614, International 145 S.W.2d Duty Taking 2. § 413. to Provide for Sartain, Tenn.App. Harvester Co. v. 32 Against Dangers In- Precautions 854; Grogan 425, 222 v. United S.W.2d volved in Work Entrusted States, (D.C.Ky.). F.Supp. Oth 225 821 Contractor employees the in er cases hold that employs who One dependent within the are not employer to do work which the tractor protected Humphreys v. Texas class. recognize create, likely dur- Light Company, S.W.2d Power & 427 progress, peculiar unreasonable (Tex.Civ.App.); Kenne Welker v. physical harm to others unless risk Copper Co., Ariz.App. 395, cott special precautions P. taken, sub- 330; Epperly Seattle, City ject 2d caused special danger 427) in or is inheres when Section 3925 of Re Torts, 2d, have statement normal work.3 Some courts to hold the phrase employee. as used liable to the construed the “to others” employees those sections to include question confronting us is wheth- contractor. Woolen v. er, insists, as the administrator the lan- Aerojet Corporation, 57 Cal.2d General guage in DeArman indicates a federal 708; Cal.Rptr. 12, Giar- 369 P.2d making guess an Erie educated Company, 259 Iowa ratano v. Weitz adopt New Mexico would 824; Hagberg City N.W.2d apply 416 and them to em- Falls, (D.C.S.D.). F.Supp. Sioux ployees contractor. It suggested that since Section 414 im- support that New Mex thesis poses of an in- cases, ico would follow these the admin dependent contractor “to others” heavily istrator relies DeArman v. *4 interpreted New Mexico court Popps, 75 N.M. That 215. phrase employees to include of an inde- by employee case was a suit an of an pendent contractor, it is reasonable independent against the em contractor to assume that the New Mexico court ployer of the contractor who furnished adopt would also Sections 416 and by supervised chattel the use of a similarly 427 and construe them. In- employees the in the contractor deed, Supreme the California Court has the contracted work. Aerojet so reasoned. Woolen v. General using injured DeArman was while Corporation, And the New Mexico court chattel. (a adopted applied Section Judge Bratton faced this critical is- family of sections member the same squarely. Upon sue examination of the the Restatement as Sections Supreme briefs filed with the Court of by precau- to them the absence of such by such others the contractor’s failure to employer if tions precautions take reasonable such (a) provide fails to in the contract danger. precau- the contractor take shall such Negligence Exercising 4. 414. § in Con- or tions. by Employer trol Retained (b) fails to exercise reasonable care to independent who entrusts One work to an provide other in some manner for the tak- contractor, but who retains the control precautions. ing of such any part subject work, of bility is to lia- Dangerous in Work Absence of 416. physical for harm to others for Special Precautions safety employer whose owes a independent employs One who an con- care, to exercise reasonable which is employer to do work tractor which the by caused his failure to exercise his recognize likely to create dur- trol with reasonable care. progress peculiar physi- its risk of pre- special Dangerous cal harm to others unless 5. § 392. Chattel for Intended liability taken, subject cautions are is Use physical by for supplies another, directly harm caused to them One who or through person, failure of the contractor to exercise a third a chattel to be precautions, reasonable care to such supplier’s purposes take used for the business though employer provided even subject liability has is to those for whose precautions in supplied, for such or contract use the chattel is or to those otherwise. expect endangered whom he should probable physical use, its for Negligence Danger § 427. as to Inherent the use caused chattel in the by persons in the Work for manner which and employs independent One who an supplied contrac- whose use the chattel is involving special tor to do work (a) supplier dan- if the fails to exercise rea- ger to others which the knows sonable care to make the chattel safe or has reason to to be inherent in supplied, know for the use for which it is or work, (b) normal or which he con- if he fails to exercise reasonable templates contemplate or has dangerous reason to contract, care to discover condi- making subject when character, tion or to inform those liability physical harm caused to expect whom he should to use it. DeArman, spoken subject, explicitly in he found that has to our Mexico more urged employee 416 had before that we been must conclude that Section liability as a and that not court basis within significantly persons refrained from court had of third class whom the legal applying as a basis that section nondelegable liability. He was thus satisfied owes the due care engaged liability in founded DeArman was while such dangerous squarely the element control He supervision of use of the chattel. contracted work. persuaded consequently brings us to the alternative inter adoption 414 and of Section theory best stated phrase pretation “to others” to Torts, 343A,6 2d, 343 and Restatement employees embrace segment Chapter and found the New contractor was indicative dealing pos special similarly adopt Mexico court would sessors of Section land invitees. He and 427. construe Sections subjects possessor land clear the absence reasoned harm caused to an invitee gen expression of New law land, condition on rule this eral announced provided (1) inor knows States, Eutsler v. United care dis exercise reasonable would case, In that should be followed. appreciates cover condition *5 recognized con courts had that some poses it an unreasonable risk of harm phrase include “to others” to strued the invitees, (2) anticipate the to should contractor, employees of an invitees would not the discover thought better reasoned but we the against protect or would not themselves independ employees of an rule was that (3) the condition and fails exercise ent embraced with protect reasonable care to his invitees. phrase United “to See also others.” provides Related 343A Section Cir.), (10th Page, F.2d 28 States v. possessor physi of land is not liable 552, 979, 86 cert. denied 382 U.S. S.Ct. by dan cal harm to his invitees caused 15 L.Ed.2d 470. gerous on the which dan condition land this, In like we have situations invitee, ger is or obvious judge’s accepted the federal trial often anticipate possessor unless should interpretation law unless of his state’s despite or harm such obvi wrong. clearly he is convinced dangerous of condition. ousness Borg-Warner Corporation, Manville v. pari in materia These sections certainly considered Cir.). (10th We

418 F.2d 434 wrong designed provide clearly in different say cannot that he was therefore, Until, Mexico New species this case. of on different based Dangerous Dangers Known to Conditions § 343. or 343A. Known Obvious (1) possessor Possessor or Discoverable A land is not liable subject possessor physical A of land is his harm caused invitees by any activity invitees harm caused to his to them or condition on if, on the land a condition ob- the land whose known or if, them, possessor he should vious to unless (a) by"the despite anticipate or exercise of reason- knows such knowl- the harm condition, edge discover able care would or obviousness. (2) posses- determining it involves an and should realize that whether anticipate in- risk of harm to such unreasonable sor harm from a known should vitees, danger, or obvious the fact they (b) expect pub- will not invitee is entitled to make use danger, land, public fail discover or realize the or will or of the facilities of a lic protect against it, importance utility, is a factor of indicat- themselves (c) anticipated. to exercise reasonable care fails the harm should be protect danger. them concept contract, in from that embodied i. e. a Section 414 situation. 413', following 416 and 427. At the same time Oil Gulf Corporation Bivins, (5th 276 F.2d 753 Accepting 343A as Sections 343- and Cir.), recognized we the conditions of applica Mexico and law New their possessor liability of a or one land invitee, bility to Parsons as a business premises employee control to an inquiry our owing nature of an contractor under Sec- and 343A Sections 343 point attempted tion 343. we charge possessor one in land or significant out the distinction between engaged premises to an invitee nonliability neg- dangerous performance of ligent employee incidental possessor premises work when resulting to or from the charge control or exercises one inherently dangerous work contracted performance of the over the direction prem- and the of a Supreme Court contracted work. negligent ises for harm to an applied adopted Mexico has New proximately “slip business and fall” Section inhering caused unsafe conditions invitees, &Tire Crenshaw v. Firestone premises being where the work is Company, P.2d 72 N.M. Rubber done, danger. i. e. hidden Regents or latent v. Board and Sandoval University, 75 N.M. Texaco, State Pruitt, Inc. v. 396 F.2d unguarded (10th Cir.), developed precisely more premises conditions guard the against nature to warn or (stairwell storeroom). Mozert v. hidden or latent case, Noeding, 364. In premises. 76 N.M. 415 P.2d In that the owner Sandoval, sum state reversed exercised no direc- control or mary judgment for the defendant prosecution tion over contracted ground fact sub that a material issue of work, and in- Section was therefore manner in which as to the applicable. sisted Liability turned instead walkway slipped plaintiff *6 was on which duty pro- the of the breach to or warn Mozert, in the New Mexi finished. dangers tect hidden or on latent for a court reversed directed verdict co premises. upheld the We trial the ground on the that reason defendant judgment jury the court’s which left to the plaintiff differ minds could whether able prem- the issue whether the of owner the negligence guilty contributory of was legal duty ises had fulfilled its against warn to causing proximately injuries. In her premises hidden on the Crenshaw, however, upheld a the court em- which caused contributed to the summary judgment on for the defendant injury. ployee’s In neither Titan nor ground the that men could not reasonable duty Pruitt were we confronted with the universally disagree danger that the was premises of the of the of owner to warn plain equally apparent the known danger performance a in latent the Dempsey tiff v. and defendant. See also dangerous inherently contracted work. Hotels, Inc., 418 Alamo N.M. Our like Gulf case seems be more C. Bate and cf. Demarest T.v. Corporation Bivins, supra, involv- Oil Company, son F.2d Construction application to the the Section (10th Cir.). dangerous performance inherently Applying concept applicable case, our work. In that the contracted Corporation Utah law Titan Walton, sufficiency Steel of the of the was satisfied Cir.), (10th findings 365 support jury’s evidence to the general subjected liability premises a inher- contractor to contained an “that the negligent employee for danger harm of an ent, to an which or latent [of concealed independent as in contractor un- employee because was the business-invitee DeArman, supra, jury judgment the facts showed that on the aware].” general grounds that retained and exer- verdict vacated was performance a cised control employer over the contractor had question matter law fulfilled its to warn Our decisive lia- is whether danger. bility employer of the latent under Section finding should made to turn on be a fact hold The administrator would have us presence hydrogen sul- jury permitted find should be gas quantities fide in the tank lethal gas presence hydrogen that the sulfide posed an unreasonable on risk of harm quantities in lethal the tank was premises of which Amerada was danger premises latent within charged knowledge superior with meaning than 343 rather Section consequent duty to warn em- per- special danger incident to the ployees performing the contractor dangerous con- formance known hazardous work. In other words support of tracted work. his conten- premises should owner of the be sub- hydrogen presence tion sul- ject liability physical harm to an gas fide was latent employee meaning 343, the within of Section special danger caused encountered to manual issued administrator refers employee of the contractor while by the Petroleum Institute American engaged in- cleaning dealing of tanks with herently dangerous work. chargeable that Amerada was asserts We do not so construe Section 343 as contents. applied in doWe Biv- Bivins. read specifically relies on sec- administrator impose liability ins to owner of spe- tions of the manual which state premises physical proximately harm precautions required safe cial are employee caused to an of a contractor cleaning contained of tanks have perform- a latent incident stocks, is done sour that when work ance If work. Sec- respiratory equipment which such tanks applicable tions 416 and supply provides air here, difficulty we would have sub- ex- workers and worn jecting under exposure sulfide cessive these And it seems circumstances. sum, the administrator death. causes logical say if reasonable superior had that Amerada contends consequent im- to' be danger- extraordinarily knowledge of an posed ous condition on to an of his proper pre- or take warn arising tractor an unreasonable out of protect invitee cautions business risk of harm incident from risk harm. the unusual lodged should be work the *7 sections, in these not in which It the work cannot be denied that duty dangerous, impose on the owner performed intended to be was appreciate e., doing posed warn of a very and of work land i. the the on his condition harm in latent risk unusual of logical Every- premises. nor special precautions. It not seem does of absence prem- subject of one, including decedent, reasonable to owner knew of liability danger ises under Section in the of inherent necessity peril posed of these circumstances the work and realized the unwilling taking do so under special precautions, the when we are make Again until em- and his work safe. The contractor speaks subject, ployees precautions usu- New Mexico in take did fact agree cleaning ally the trial that adequate of tanks with for the imposed in gas. containing hydrogen this be under Section cannot sulfide that apparently We conclude like this. was situations instance survived, and greater of fact anyone anticipated, no material issue than appropriate. summary judgment usually proved was safety employed devices not clearly posture we do of the case inadequate. estab- this much is assumption defense of reach asserted lished. negligence Judge (concur- contributory HOLLOWAY, Circuit of risk and Mexico, ring part applied dissenting part): recognized in in in New Con- Bateson v. T. C. i. see Demarest e. agree majority opinion’s I with the Company, supra. struction party complaint treatment of the third possible issue and the issue cross-appeal concerns principles of Amerada related to under ex Amerada for of B & M to 413, 416 and 427 of the Restatement §§ penses Amerada defense incurred Torts, However, respectfully of disagree 2d. I wrongful Amerada death action. holding with in these its alleging Party Complaint filed a Third circumstances as a matter law recov- contractually bound B & M was ery is unavailable to the administrator any only for indemnify not Amerada posses- principles under of a judgment the adminis which and costs sor of land where unreasonable risk any might also recover but trator of harm to exists. invitees expenses Amerada incurred and all clearly District Court stated B M filed & tort claim. defense recovery why may no view as had admitted exist it an Answer which possessor based of a of land. but asserted ence the contract various opinion rejected Its memorandum this claim. to the indemnification defenses theory recovery 343 and §§ summary parties filed motions Both 343A of the Restatement follow- judgment. ing basis: judge in his Memorandum The trial “Assuming, by plain- as contended Party Third Opinion stated tiff, that the from the death resulted sought recoveiry any dam- Complaint gases tank, Amerada is not against might ages recover that Parsons If to warn liable. Amerada had a “ * * * and concluded Amerada safe, or to make the it was finding not liable Amerada duty by this decedent’s relieved of making any necessity precludes voluntary actions, full taken with regard finding B & M whether presence poisonous indemnify contractually it.” bound Torts, gases. (Second), Restatement supra 343, 343A, indemnification No resolution d comment at §§ 570-71; v. Firestone Tire Crenshaw The trial claim was made merits. Co., supra at N.M. 84] Rubber [72 judge apparently that dismissal believed 85-86 [380 828].” disposed tort claim also Parsons’ Thus, recovery it was held that the claim for indemnification. duty as basis of a breach of Amerada’s erroneously think the We trial court permissible land not was interpreted Party Complaint. the Third because the District Court concluded sought clearly recovery It obvi- involved was any judgment might be assessed voluntarily. ous and Parsons acted See sought Amerada also recov- holding 343A(1), In so n. ery expenses incurred Amerada that there the District Court concluded B & defense of the tort action. M al- genuine of fact as wheth- issue leged Par- defenses to the Third various danger and acted er knew the Parsons ty Complaint, trial court *8 knowledge. voluntarily such with liability, any, determined the if have on the Perchard based conclusion was agreement B & M for Amer- under the depositions, cir- deposition, and other defending wrong- expenses ada’s including of a use Parsons’ cumstances proceeding on the ful death action. The was furnished. mask that Party Complaint to Third is remanded summary judg- agree purpose. that the District for that I Court cannot The regard proper a basis. was such And in that Titan Cor- ment see Steel part large Walton, poration rests in conclusion 618 However, poisonous gases, presence me deposition where of Perchard. finding appreciated peculiarly knowl- ultimate he are within the facts danger

edge party special not one and its wit- he faced was of an adverse proper summary summary judgment by judgment on nesses,1 not is for decision plaintiff to have is entitled this record. and testimony and demeanor witnesses’ agrees majority opinion The with Moreover, by jury.2 on this sidered no re- District there can be Court inference me that it seems to record pro- covery principles, under 343 appreciated and knew of that Parsons dealing ceeds on a different basis. danger special lethal concentra- land, with the proper hydrogen not was sulfide tions majority opinion states: by law sum- a matter of as decision impose do not “We read Bivins judgment.3 mary the New For owner “ * ** person will holds that Court proximately caused to voluntarily assumed to have not be held by la- a contractor specific which risk where perform- tent incident 4 injury produced unknown.” dangerous If ance of work. hydrogen sul- special related applica- 413, and 416 427 by difficulty Amerada not disclosed here, fide were have no ble we would Parsons, subjecting M, accord- B M B nor & to & it judgment circumstances. summary these ing to some logical and seems reasonable short, facts papers.5 various while consequent say if liabil- and depositions other developed in the ity imposed on the argue knew may Parsons papers superintendent, Dunn, contesting B M field & Company is M 1. B Service & by deposition hired Par- that he testified party complaint which Amer- the third day and did of the accident sons the recovery MB & over ada seeks prior experience inquire about his any Administra- to Parsons’ pre- cleaning, him nor instruct circumstances, B & M tor. Under Parsons had to be taken. cautions realistically an inter- must be viewed company for three oil recovery by worked another party and adverse to ested safety meetings attended summers and administrator. There was discussed. where masks were Natural Gas v. Arkansas 2. See Sartor gases. poisonous sign about on the tank 724, Corp., 620, 88 U.S. 64 S.Ct. employee, Perchard, B M & Mr. 967; Goldsmith, F. Subin v. L.Ed. Parsons there he told stated that had denied, (2d Cir.), cert. 757-759 2d 753. stay there, dangerous gas 883, 136, 100 L.Ed. 76 S.Ct. 350 U.S. (sic) and not to stand downwind Compora 779; Motors Alvado General proof gas There was no breath it. tion, Cir.), (2d 408, 411-412 229 F.2d with knew of or discussed that Perchard denied, 983, S.Ct. cert. 351 U.S. hydrogen the characteristics Parsons 1050, 1497, Alabama 100 L.Ed. colorless, being sulfide, odor- such as Louisville Co. v. Groat R.R. Southern heavy quickly lethal in concentra- less and tion, Co., 1, 5, 50 A.L.R. R.R. F.2d heavier than air. Perchard (5th Cir.). 2d 1302 pumping sediment out said that after they Co., tank, fifteen rested about v. Shell Oil from the 3. Sullivan See (9th Cir.), denied, let the tank air out. minutes to 352 U.S. cert. on such data in the record 1 L.Ed.2d 160. There is 77 S.Ct. show- sulfide characteristics Tapia Erectors 4. v. Panhandle Stool heavy colorless, it 631. N.M. sense of it deadens the concentration boss, may quickly. Shirley, kill testi- Amerada’s farm smell and Mr. air, significant deposition in his contracts which is heavier than fied cone-shaped any bottom of not at time view of the B M he had equipment proper record shows tank. The them as to instructed the Abo crude oil from Amerada that warned them to use and gases. thought generally to con- M clean this Formation was B & He called *9 gave Mr. tain sulfide. no such information. and tank

619 employee harm to an known to work, be incident to the arising his out contractor not to ap- risks which are not known preciated dangers inci- an unreasonable risk of harm of the work.6 performance dent to of the work exception reason calls for such an to the lodged possessor in these be duties of land to thus be sections, intended reasonably not 343 which is limited to risks of harm impose duty a to owner to be incident to the of the work appreciate danger land to and warn a dan- business invitee. If the is not gerous on his appreciated and latent condition thus known and as a risk logical premises. not nor work, It does seem incident to the then a contractee subject possessor to the owner reasonable who is the of the land where premises under 343 latent exists still has dagger a Section peril posed by protect for the these circum- 343 to § unwilling do employees. stances when we are aijtd his 413, so under 416 and 427. Bivins, Corporation To me Gulf Oil v. Again speaks until New Mexico supra, deny applicability does not agree subject, with the trial principles fact, 343 here. § Court imposed under cannot be proof presence there said that like this.” 343 situations Section gas iron sulfide at the wellhead would Thus, majority opinion determines support finding inherent, jury danger though in- that even a latent be danger concealed latent unknown volved, “in- as a it was matter law Bivins, quoted 343 on the § of known dan- cident possessor independ- of land to the gerous work,” duty or lia- and that no employees, although ent contractor’s re- may bility principles. exist under 343 § covery was denied because agree. I did cannot The District Court specifically had been about the warned prin- exception not find such an 343 § gas. presence of iron sulfide Under § ciples Mexico law. New Mex- under New recovery principles may 343 be had such us do not state ico decisions before his where land violates exception. law And to me" the case contrac- warn the majority opinion does relied on employees tor’s unknown go excep- to make such an so far as though might them, the risk be even principles tion to the 343. § incident a viewed as “latent majority opinion to cases refers performance of known making risk a distinction between majority terms work” within the harm incident principles.7 opinion’s exception to 343 § inhering work, latent principles adopted the recovery has within § where However, the definition Moreover may I 343.8 principles be- § had. invitees within 332 of the the distinction business show that § lieve cases reasonably also em- protection of 343 was of harm cited refers risks (sustaining N.E. 123 g., N.Y. National Electric e. Wolczak v. 6. See scavenger’s cesspool recovery Corp., N.J.Super. where Products collapsing roof was caused death A.2d 417. Thayer Henry pool); Hall v. Co., supra N.E. 644 Co., 225 Mass. 7. Sullivan v. Shell Oil See recovery (sustaining of an in- (reversing for death verdict for defend- a directed employee repair- dependent remanding contractor’s trial where ant way pier gave being when a tank col- water dismantled column fell). Wright, lapsed) Corp. ; and the tank Gulf Oil (ordering deter- a retrial Rub- Tire and possible liability Firestone where See Crenshaw mine Co., supra, Board of apparently and Sandoval v. ber killed tractor’s University, Regents cleaning pits*); Mexico State poisonous of New while Engineering Haefeli v. Woodrich *10 case, braced in and the the Sandoval definition contrac- covers employees.9 their

tors and And New appreciation there must be an specific for there involved assumption So, I be an risk.10 am agree majority opin-

unable to if the risk was

ion's view even danger, latent it was encountered work” “known may apply. principles

so that § negate the record does not Furthermore judgment pur- sufficiently, summary Wiley Brown, Court-appointed J. coun- poses, possible liability of the sel, Greenville, C., brief, appel- S. 343A(1) for harm that land under § lant. despite anticipated should be Joseph Rogers, Jr., Atty., O. U. S. danger, in view of the or obviousness McCoy, III, Atty., James D. Asst. U. S. hydrogen sulfide. characteristics brief, appellee. disagree Therefore, respectfully I HAYNSWORTH, Judge, Before Chief summary the affirmance of with judgment by WINTER, and BOREMAN and Circuit majority opinion be- Judges. I does unwarranted cause feel it so principles. of 343 constriction PER CURIAM:

The defendant was convicted of the transportation interstate of a stolen mo- upon tor vehicle evidence that the ve- York, hicle had been stolen in New Greer, the defendant had driven it to Carolina, attempted South where he value, sell it for half its wholesale America, attempt UNITED STATES had been made to alter the Appellee, number, serial and that the defendant purchased had claimed that he had who, person, upon investiga- car from tion, PALMER, Lynn Appellant. Arthur out turned to be fictitious. No. 12877. appeal challenges In this the defendant Appeals, United States Court of sufficiency of the evidence to con- Fourth Circuit. Clearly, vict. there was much more than 11, 1970. March necessary the minimum to take such a jury. appeal quite case to the argument fruitless and oral sary. unneces- summarily The conviction is af- firmed.

Affirmed. Torts, 2d, dealings §9. Restatement connected with business be- provides: tween them.” person Tapia “A business visitor ais who 10. See Steel Panhandle Erectors permitted supra, remain invited or to enter or N.M. P.2d at possession on land of another and data on some characteristics indirectly purpose directly sulfide, for a n.