DATE OF JUDGMENT: 11/08/93 TRIAL JUDGE: HON. R. I. PRICHARD, III COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT
The opinion of the court was delivered by: Banks, Justice
ON PETITION FOR WRIT OF CERTIORARI
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION REVERSED AND REMANDED - 3/12/98
MOTION FOR REHEARING FILED:
¶1. In this case we determine whether the introduction of evidence of alcohol use, where that evidence is ultimately found to be insufficient to create a viable issue as to any fact to be tried, is such error as to dictate reversal. We conclude that under some circumstances it is and that the judgment here must be reversed.
¶2. On March 3, 1992, James H. Donald and Barbara Lindsay Donald filed a complaint against Apache Corporation and Triple S Well Service, Inc. The Donalds allege that Mr. Donald sustained personal injuries in two unrelated incidents, the first on August 1, 1989 and the second on July 9, 1990. Mr. Donald claimed he was injured while working on two different well sites owned by Apache in Jefferson Davis County, Mississippi. Apache had contracted with Triple S to provide work over services at both well sites. In his complaint, Donald asserted that Apache, as owner of the wells, and Triple S, as owner of the work over rigs, were liable for his injuries due to failure to provide him a safe place to work and for failing to provide drilling equipment in a safe condition.
¶3. The Donalds negotiated a settlement with Apache immediately prior to trial. Thereafter, a five day trial ensued against the remaining defendant, Triple S. On November 5, 1993, the jury returned a verdict in favor of Triple S. The Court of Appeals affirmed the jury verdict and judgment of the trial court. The Donalds then filed a petition for rehearing which was denied by the Court of Appeals.
¶4. In their petition for certiorari, the Donalds present two issues for review by this Court: (1) whether the lower court erred in denying their motion in limine to exclude evidence relating to alleged alcohol use by Mr. Donald on the job prior to the injuries in question, and (2) whether the lower court erred in granting assumption of the risk instructions to Triple S. We granted certiorari on both issues.
¶5. James H. Donald, at the time of the injuries alleged in this litigation, was working at certain gas well drilling sites in Jefferson County owned by Apache Corporation. He had worked in the field for forty years, and testimony at trial was unanimous that Donald was an excellent worker who "knew how to get the job done." Donald's employer, Homco, Inc., had contracted to assist Apache in performing a "work over" of two existing wells. This work consisted of removing and replacing deteriorated piping in the well in order to improve its performance. A special work over rig was required for such work, and Apache had contracted with Triple S to provide the equipment and personnel to assist in the operation of the rig.
¶6. Donald's position involved special skills and was known in the trade as a "fishing tool operator." The process of reworking a well involves lowering a cutting tool into the well, cutting loose lengths of the existing piping, then extricating the severed section along with any obstructions that may have accumulated. The process continues until all deteriorated piping is removed and new piping inserted. The fishing tool operator's duties include supervising the lowering of the cutting tool, operating the tool once it is lowered into the well, and removing the pipe and obstructions. Much of the actual physical labor involved in handling the old sections of pipe, once they are returned to the surface, is performed by manual laborers referred to as "floor hands." The actual lowering of the fishing tools and the removal of the old piping is accomplished by a motor-operated drilling apparatus controlled by a throttle, a clutch, and a lever-operated braking mechanism.
¶7. Once an older section of pipe is removed from the well, the lower end of the pipe is guided to a slide mechanism by the floor hands. The driller then lowers the upper end of the pipe, thereby pushing the lower end along the slide until the pipe section is flat on the slide. It is then detached from the drilling rig and manipulated onto an adjoining pipe rack by the floor hands so that the process can begin again.
¶8. Donald's first alleged injury occurred August 1, 1989. On that occasion, Donald claims that during the process of laying down a section of old pipe just removed from the well, the lower end broke through the slide and became lodged. The two floor hands were attempting to manipulate the lower end of the pipe back onto the sliding mechanism so that the lowering process could be resumed, but were encountering difficulties. Donald decided to assist in the process and the three of them were successful in manipulating the lower end of the pipe onto a track where it would continue to slide away from the rig as the upper end descended. In the process, however, Donald claims that he slipped and fell, injuring his back. He alleges that the area around the pipe slide was muddy and slippery, and that this condition caused him to fall.
¶9. Donald's claim against Triple S is based upon an assertion that Triple S failed to provide a raised catwalk apparatus along the area where the pipes were being lowered. According to Donald and his expert witness, a catwalk would have permitted him to assist the floor hands without encountering the muddy conditions that caused his fall. There was testimony that such catwalks are provided on some occasions during a work over operation; even Donald testified, however, that only thirty to forty percent of work over rigs have such a catwalk as standard equipment. There was ample proof that it is not uncommon for the area around the pipe slide to become wet due to the combination of inclement weather and drainage of liquids from the old piping. There was conflicting testimony in the record as to the condition of this particular site at the time of the alleged accident, which occurred, according to Donald, at 1:30 a.m. There is also conflicting evidence as to what had been placed on the ground around the slide: ground oyster shells, washed gravel, plain gravel or nothing at all.
¶10. Triple S claims that the slip and fall incident never occurred, arguing that its witnesses could not corroborate Donald's testimony as to the incident. The record reflects, however, that Donald reported this incident to his supervisor the following morning. Moreover, Donald saw his physician three or four days later, and surgery was performed within ten days, requiring Donald to leave the job for a period of approximately three months. Donald had experienced back problems some years prior to this incident, but those problems involved a different region of the spine, and different discs. Donald's injury is consistent with his explanation of the accident, and Triple S offers no other explanation as to how Donald received the injury to his back. Triple S claims that even if the incident did take place, it was not responsible. It argues that the ground was in good condition and that catwalks are not normally provided.
¶11. Donald's second alleged injury occurred on July 9, 1990. On that occasion, Donald claims that he was engaged in a jarring operation to free a section of old pipe that could not be removed by normal methods. Donald testified that the procedure involved a series of jerks on the pipe through the use of the throttle, clutch and braking mechanism on the drilling rig in an attempt to shake loose the lodged pipe. He stated that it was important to maintain a balance between applying sufficient sudden force to dislodge old pipe and such excessive force as would strip free the newly-made attachment. Excessive force would likely damage expensive fishing tool equipment and cause the entire well operation to shut down.
¶12. Donald claims that the failure of the rig's braking mechanism, due to improperly maintained brakes, was the cause of his second injury. He stated that he was attempting to apply the brakes when the mechanism failed and the brake lever went all the way to the floor, putting everything attached to the rig in free fall. He testified that by strenuously jerking back on the brake lever he was able to reset the brakes and stop the free fall. He claims, however, that the strenuous jerking motion necessary to reset the malfunctioning brake caused an injury to his neck. Surgery following this incident left him with a permanent twenty-five to thirty percent (25-30%) disability. Testimony by the defendant's expert witness was that Donald could possibly "do some work as a security guard, if such work was available, and it did not involve being on his feet for long periods of time." Normally, the operation of the drilling mechanism is the duty of an individual designated as the driller. Donald testified, however, that it is not uncommon for the fishing tool operator to take over the actual operation of the drilling mechanism, especially during critical phases of the fishing operation.
¶13. Donald claims that for some time prior to the incident, it had been known that the braking mechanism was in a state of disrepair because the brake bands were warped, causing the brake pads to wear out prematurely. Every person testifying at trial, whether for the plaintiff or the defendant, corroborated Donald's testimony that it was commonly known that there was a problem with the brakes. Donald had asked Randy Quevas to replace the bands. Two days after the accident, the rig was shut down for fourteen hours and the brakes were replaced.
¶14. This second incident was also reported to Donald's supervisor, and followed immediately by surgery. According to Donald's physician and his expert vocational rehabilitation witness, this accident has resulted in a permanent disability, leaving Donald with very limited mobility. He is unable to drive, stand or sit for extended periods of time.
¶15. Triple S claims that the second accident, like the first one, never took place. In the alternative, Triple S alleges that if the accident did take place then Donald assumed the risk of injury because he performed his work knowing the brakes were dangerous. Triple S paid Donald his full salary following the accident in exchange for Donald's workers' compensation checks being signed over to the company.
¶16. None of Triple S's witnesses verified that they had seen the accidents occur. One witness admitted that he was not even at the scene at the time of the alleged incident; another testified that he was sleeping at the time. Donald's supervisor verified that the second accident had been duly reported and written up, although the employer ...