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- CULTURE FRONT: Asymbol goes analog
- Walker walks
- Snapped! in Jackson Hole
- CLASSICAL NOTES: Violin virtuoso, fantasy and Fantasia
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Duty of Care in Wyoming
The term “Duty of Care” is stated repeatedly in the halls of the Wyoming State Capitol and there are lobbyists working full time on this subject matter. And if you ask certain legislators their opinion on “duty of care”, you get strong opinions on both sides of the issue. There have been numerous articles in the local state papers and even in national papers like the Los Angeles Times on the issue of duty of care in Wyoming. But it is not always understood by everyone, since it is somewhat of a difficult subject matter.
Back in 2008 John Vincent and Jessica Rutzick (both Wyoming attorneys) wrote a law review article in the Wyoming Law Review that described what they termed as immunity that had been given to oil and gas companies operating in Wyoming. Specifically they said,
“Wyoming’s retreat from a system of law which provided an injured worker and his family with some modest method to obtain redress for his injuries or death has now resulted in virtual immunity for operator negligence and reckless disregard for the safety of Wyoming’s citizens.”
Pretty strong language to say that oil and gas companies operate with immunity in Wyoming. So where do they get that idea from? To understand that statement, we have to start with the “Grand Compromise”.
In Wyoming if an employee is injured or dies on the job the recovery is through the Worker’s Compensation System. The worker (or his widow for a death) do not sue the employer, rather the claim is submitted and there are formulas for determining the amount of money paid out. The concept of this system of worker’s comp works, except, there are issues with the formulas and with the amounts being paid out, but for the most part the concept works. It keeps employers and employees out of court and allows for business to transpire in Wyoming with little or no interruptions through court proceedings.
The issue at hand, in regards to duty of care, involves what are called “independent contractors”. An “independent contractor” is defined in Wyoming as “one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the result of the work.” Combined Ins. Co. of America v. Sinclair, 584 P.2d 1034, 1043 (Wyo. 1978).
In the oil and gas industry, the oil and gas company lease a piece of property in order to drill a well. The oil and gas company does not actually drill the well themselves. The oil and gas company hires an independent contractor. For example, an employee (a roughneck) of an independent contractor (the drilling company) gets injured or dies. The employee (or the surviving spouse if the employee died) file a claim with workers’ compensation and hopefully recovers funds. The independent contractor (the drilling company) is not sued, since the workers’ compensation system exists.
But what if the oil and gas company did something (negligence) that caused the injury or death. Should the employee be able to sue the oil and gas company? The oil and gas company would say no, since they have no relationship with this employee. This was an employee of an independent contractor. This is where duty of care comes in to play.
The common hypothetical that is given is where the oil and gas company is actually running the worksite. So even though the independent contractor is supposed to be running the drilling operation, the oil and gas company sends out their “company man” that stays on site. The company man then starts telling the independent contractor (the drilling company) how to do things and in some situations gives orders that the drilling company would not normally do if he was truly in control of the worksite. For example the company man decides that they don’t have time to put up safety railings, or the company man says that they will work straight through for 24 hours with no breaks. Then because of these acts, an employee (a roughneck) of the independent contractor (the drilling company) gets injured or worse, dies. Should the oil and gas company really walk away without any fault, simply because the employee was technically working directly for the independent contractor?
To understand “duty of care” you must understand the word “duty”. In a negligence case, there are four elements that must be proven — duty on the part of the defendant (oil and gas company) to conform to a specific standard of conduct for protection of plaintiff (employee/roughneck) against an unreasonable risk of injury; a breach of that duty by the defendant; that the breach is the actual and proximate cause of plaintiff’s injury; and Damage (an injury or death). So even if a duty is found, the Plaintiff still has to prove that the oil and gas company breached that duty, that the breach was the cause of the injury, and that there was a injury. In many cases you may have a duty, but you never breached that duty. Sometimes an accident is just an accident, and there is no fault with anyone.
In Wyoming, the law has always been that the oil and gas company did owe a duty of care if two different exceptions occurred. The exceptions were:
- the employer retains the right to direct the manner of an independent contractor’s performance; or
- assumes affirmative duties with respect to safety
would then owe a duty of reasonable care to an employee of an independent contractor even if the employee is injured doing the very work the contractor was hired to perform.
In order for there to be a demonstration of the employer’s assumption of affirmative duties with respect to safety there must be such a retention of a right of supervision that the contractor is not entirely free to do the work his own way.
Up to this point everything makes sense. For the most part oil and gas companies do not owe a duty unless they take over the worksite in such a manner that the contractor is not entirely free to do the work his own way. The problem came about when the Wyoming Supreme Court and then the Federal 10th Circuit started to not allow these exceptions anymore. The courts started using the word “pervasive”. Thus the duty was only present if the oil and gas company exercised a controlling and pervasive role over the independent contractor’s work.
This word “pervasive” started to cause problems for employees (roughnecks) trying to prove that the oil and gas company owed a duty of care. It was extremely difficult to get to that new higher level of “pervasive”.
In Vincent and Rutzick’s law review article they went so far as to state:
“Pronouncements of the Wyoming Supreme Court under either exception [1) retains the right to control the operation or 2) assumes affirmative duties with respect to safety] have accordingly made it virtually impossible for an injured oil field worker or his family to prevail in a civil suit. These decisions are so one-sided that district courts will now abide by the Supreme Court’s direction to effectively provide immunity for all oil company operators, no matter the facts or circumstances leading to the roughneck’s death or injury.”
Therefore, last year John Vincent (the attorney in Riverton, Wyoming that wrote the law review article quoted above) came to Senator Tony Ross and myself and asked us to sponsor a bill to take us back to the state of the law that we were at previous to the courts deciding to write their own law. (Senator Ross is the Chairman of the Senate Judiciary Committee and I chair the House Judiciary Committee) We agreed and the bill was heard during the 2009 Wyoming Legislative Session. It died in the House Judiciary Committee by one vote. During this past year, the Joint Judiciary Committee has heard testimony on this bill and the bill will be voted on November 16 in Laramie as to whether the Joint Judiciary Committee will sponsor the bill in the upcoming 2010 Legislative Session in February 2010. The bill can be read at the link below.
The bill above takes the state of the law back to the exceptions without the word “pervasive”.
My feelings on the bill is that because of the word “pervasive” being stuck into the exception by the courts, the pendulum has swung too far in the direction of the oil and gas companies. My intent is to get the pendulum back to the middle to put the injured employee and the oil and gas company back on a level playing field. I also don’t believe that the courts should be writing the laws. That is the job of the legislature. This bill would assist in getting Wyoming back to a fair and just system for compensating injured workers.