November 25, 2013 – Larry Sherman v. Cimarex Energy Co., Cimarex Energy Co. of Colorado and Magnum Hunter Production Inc., No. 32,164

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _NOVEMBER 25, 2013

NO. 32,164
LARRY SHERMAN,

Plaintiff-A ppellant,
V.

CIMAREX ENERGY CO., CIMAREX
ENERGY CO. OF COLORADO and
MAGNUM HUNTER PRODUCTION INC.,

Defendants-A ppellees,

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Sutin, Thayer & Browne, P.C.

Timothy J. Atler

Kerry Kieman

Albuquerque, NM

Kelly, Morgan, Dennis, Corzine & Hansen, P.C.
Denis Dennis

Odessa, TX

Law Office of Allen Moore

Allen Moore
Odessa, TX

for Appellant

Madison & Mroz, P.A.
Robert J. Mroz.
Jennifer L. Collins

Albuquerque, NM

for Appellees

OPINION
FRY, Judge.
{1} 	Plaintiff Larry Sherman appeals the district court’s order granting summary
judgment in favor of Defendants, which we refer to collectively as Cimarex. Plaintiff
was injured when he fell over the handrail of a flight of stairs while working on an oil
drilling rig. Plaintiff, an employee of an independent contractor hired by Cimarex,
sued Cimarex, the owner and operator of the well site. The district court determined
that Cimarex owed no duty to Plaintiff to protect against the injury that occurred in
this case. 	We conclude that there are issues of fact as to whether Cimarex had
supervisory control over the independent contractor’s operations so as to give rise to
a duty to act reasonably in exercising that control. We further determine that there are
issues of fact surrounding the questions of whether Cimarex’s actions breached any
duty 	it 	owed 	Plaintiff 	and 	whether 	those 	actions 	caused 	Plaintiff’s 	injuries.
Accordingly, we reverse the district court.
BACKGROUND
{2} 	Plaintiff worked as a toolpusher for Patterson-UTI Drilling Company. Cimarex
contracted with Patterson to drill a well and furnish labor, equipment, and services
“under the direction, supervision and control of [Cimarex].” As a toolpusher, Plaintiff
was the head Patterson employee on the well site, while Thomas Glen Smith was

1While Cimarex disputes that Plaintiff worked for twelve consecutive days, that
dispute is immaterial to our resolution of this case.
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Cimarex’s drilling consultant—the person 	assigned by Cimarex to supervise the
overall operation of the project.
{3} 	Patterson required the toolpusher to be able to remain on location twenty-four
hours a day for eight days. However, Plaintiff and another Patterson toolpusher, Tye
Lem, had worked out an arrangement whereby the two men alternated a four-days-on-
four-days-off work schedule. At the time of the accident, Plaintiff had worked twelve
consecutive days because he covered for one of Lem’s shifts in the midst of working
his own, although only five of these twelve days were spent working on the current
well site and under Smith’s supervision 1 .
{4} 	In the early hours of August 8, 2006, Plaintiff was injured when he fell over a
handrail while walking down the stairs from the rig’s doghouse. In the district court,
the parties disputed what event triggered Plaintiff’s movement from the doghouse to
the stairs. On appeal, they seem to agree that Plaintiff was asleep in the doghouse and
that Smith woke him up so that he could perform a task at the bottom of the rig.
Plaintiff got up and left the doghouse, whereupon the accident occurred.
{5} 	Plaintiff filed suit against Cimarex, alleging that it was negligent in failing to
provide him a safe place to work, failing to keep a proper lookout for his safety,
failing to allow him proper time for rest and recuperation and interrupting his sleep

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for unnecessary supervision, and creating a system that caused him to work while
Cimarex, through the actions of Smith, knew he was fatigued. Cimarex filed a motion
for summary judgment on the basis that it owed no duty to Plaintiff because it was not
aware that Plaintiff was fatigued. 	The district court agreed and granted summary
judgment in Cimarex’s favor. Plaintiff now appeals.
DISCUSSION
Standard of Review
{6} 	“We review de novo the granting of summary judgment, construing reasonable
inferences from the record in favor of the party that opposed the motion. Summary
judgment is proper when there are no genuine issues of material fact and the movant
is entitled to judgment as a matter of law.” Blea v. Fields, 2005-NMSC-029, ¶ 10, 138
N.M. 348, 120 P.3d 430 (citation omitted).
Outline of this Opinion
{7} 	The district court granted summary judgment on the ground that Cimarex owed
no duty to Plaintiff, and the parties address their arguments to the question of duty.
While “duty . . . is a question of law for the courts to decide,” Herrera v. Quality
Pontiac, 2003-NMSC-018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (internal quotation marks
and citation omitted), in the context of the relationship between an independent

2Our Supreme Court has noted that in the context of landowner-contractor-
subcontractor liability cases, the terms “general contractor,” “owner,” “lessor,”
“lessee,” and “employer” are often used interchangeably to denote the possessor of
the premises. See Tipton v. Texaco, Inc., 1985-NMSC-108, ¶ 20, 103 N.M. 689, 712
P.2d 1351 (internal quotation marks omitted). For clarity, we use the term “employer”
to identify the person or entity that hired the independent contractor.
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contractor and an employer,2 there are fact questions that inform the court’s
determination about duty. 	In this Opinion, we first discuss the general principles
governing the employer/independent contractor relationship, and we distill the
principles set out in our case law and Section 414 of the Restatement (Second) of
Torts (1965). We then analyze the parties’ arguments in this case.
General Principles Governing an Employer’s Liability to the Employees of an
Independent Contractor
{8} 	Generally speaking, “the employer of an independent contractor is not liable
for injuries to an employee of the independent contractor.” Valdez v. Cillessen & Son,
Inc., 1987-NMSC-015, ¶ 21, 105 N.M. 575, 734 P.2d 1258. “The rationale underlying
the rule is that the independent contractor, free to achieve a legal result (set by the
[employer]) by any means it chooses, bears the risk should that operation, negligently
performed, cause physical harm to others.” 	Marc M. Schneier, The Independent
Contractor Rule: The Shifting Bedrock of Construction Accident Law, Construction
Briefings No. 2002-8, at 2 (2002). 	As with any general rule, however, there are
exceptions, including two scenarios: where the employer controls the premises on

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which the work is being performed or where the employer retains control over the
independent contractor’s performance of its work. 	Pollard v. Westinghouse Elec.
Corp., 1995-NMCA-038, ¶ 6, 119 N.M. 783, 895 P.2d 683. These two grounds for
an employer’s liability correspond to different sections of the Restatement (Second)
of Torts (1965), Section 343 and Section 414, respectively. See Hinger v. Parker &
Parsley Petroleum Co., 1995-NMCA-069, ¶ 22, 120 N.M. 430, 902 P.2d 1033. In this
case, we are concerned with the second basis of liability, which relates to whether
Cimarex had control over Patterson’s work so as to give rise to a duty owed by
Cimarex to Plaintiff.
{8} 	Section 414 of the Restatement addresses the notion of retained control and
provides:
One who entrusts work to an independent contractor, but who retains the
control of any part of the work, is subject to liability for physical harm
to others for whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to exercise his control
with reasonable care.
The Restatement’s comments clarify that the extent of the employer’s control informs
both (1) the question of whether the employer owes a duty to an independent
contractor’s employee and (2) the question of whether the employer can be deemed
liable to that employee, i.e., whether the employer breached its duty and caused the
employee’s injuries. 	See Herrera, 2003-NMSC-018, ¶ 6 (explaining that “a

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negligence claim requires the existence of a duty from a defendant to a plaintiff,
breach of that duty, which is typically based upon a standard of reasonable care, and
the breach being a proximate cause and cause in fact of the plaintiff's damages”).
Comment a to Section 414 explains that, even where the employer “may retain only
the power to direct the order in which the work shall be done, or to forbid its being
done in a manner likely to be dangerous to himself or others,” this “supervisory
control” may subject the employer to liability “unless [the employer] exercises [the
employer’s] supervisory control with reasonable care so as to prevent the work which
[the employer] has ordered to be done from causing injury to others.” Restatement
(Second) of Torts § 414 cmt. a. Thus, (1) the employer owes a duty to an employee
of an independent contractor if the employer has some kind of supervisory control
over the independent contractor and, if the employer owes this duty, (2) it may be
liable if it exercises its control in a negligent manner that causes injury to the
independent contractor’s employee.
{9} 	It is clear that both inquiries are fact driven. With respect to the employer’s
duty, the parties must introduce evidence of the extent of the employer’s control over
the independent contractor’s operations. Once the duty is established, the parties must
introduce evidence on the question of liability, which involves the way in which the
contractor exercised its control.

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{10} 	Our case law in New Mexico has primarily addressed the duty aspect of Section
414. 	For example, in Tipton, our Supreme Court noted that the extent of an
employer’s duty to the employees of an independent contractor “has been held to vary
according to the . . . degree of control the [employer] exercises over . . . the details of
the work.” 1985-NMSC-108, ¶ 20. 	Similarly, in Valdez, decided by our Supreme
Court, and in two cases decided in 1995 by this Court, the focus was on the extent of
the control retained or exercised by the employer. See 1987-NMSC-015, ¶ 20 (stating
that “the critical issue is the degree of control alleged to have been maintained by [the
employer]”); Pollard, 1995-NMCA-038, ¶ 6 (stating that “the extent of the duty owed
by [the employer] is to some degree a function of the kind of control either retained
or exercised by [the employer] over the work performed by [the independent
contractor]”); Hinger, 1995-NMCA-069, ¶ 22 (stating that “[t]he extent and nature of
the duty is often a function of the degree of control or power retained by the employer
over the job”).
{11} 	In each of these cases, the Court determined, directly or indirectly, that the
extent of the employer’s control was a fact question. In Valdez, the Court reversed
summary judgment in favor of the employer because there were issues of fact as to the
extent of control exercised by the employer, 1987-NMSC-015, ¶ 27, as did the Court
in Pollard, 1995-NMCA-038, ¶¶ 8, 10. And in Hinger, the Court concluded that the

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jury had been properly instructed on the theory of the employer’s retained control,
thereby implying that the matter was a fact question for the jury. 1995-NMCA-069,
¶¶ 22, 26, 31, 33; see also Pollard, 1995-NMCA-038, ¶ 6 (explaining that an analysis
of “the kind of control either retained or exercised by [the employer] is primarily a
fact-based question which does not lend itself easily to resolution by summary
judgment”).
{12} 	The question not expressly answered by our case law is how much control the
employer must have before it has a duty to an independent contractor’s employee.
Instead, our cases have simply left the matter up to the fact finder if the evidence
created issues about how much control the employer had. For example, in Valdez, the
employer “agreed to be ultimately responsible for any infractions by [the independent
contractor] of labor standards provisions,” and it issued detailed instructions to the
independent contractor about how to do certain aspects of its work. 1987-NMSC-015,
¶ 24. The Court held that this evidence created issues of fact precluding summary
judgment. Id. ¶ 26. In Pollard, the contract between the employer and independent
contractor “arguably reserve[d] to [the employer] the right to direct [the independent
contractor] to take such additional measures for the protection of [the independent
contractor’s] employees, as [the employer] determine[d] to be reasonably necessary.”
1995-NMCA-038, ¶ 7 (internal quotation marks omitted). The employer also required

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the independent contractor to comply with the employer’s safety manual and retained
the right to approve any safety changes made by the independent contractor. Id.
{13} 	While this case law does not provide much definitive guidance about how much
control is necessary to give rise to a duty, the Restatement gives us some assistance.
Comment c to Section 414 states that “[i]t is not enough that [the employer] has
merely a general right to order the work stopped or resumed, to inspect its progress
or to receive reports, to make suggestions or recommendations which need not
necessarily be followed, or to prescribe alterations and deviations.” Restatement
(Second) of Torts § 414 cmt. c. Rather, “[t]here must be such a retention of a right of
supervision that the contractor is not entirely free to do the work in his own way.” Id.
{14} 	With these principles in mind, we turn to the circumstances and arguments in
the present case.
Issues of Fact Preclude Summary Judgment
{15} 	We understand Cimarex’s primary argument to be that, as a matter of law, it
owed no duty to Plaintiff because it was not required to recognize that Plaintiff was
exhibiting signs of fatigue or that he was possibly incapacitated by fatigue, especially
given the facts that Cimarex had no control over or awareness of Plaintiff’s work
schedule and Cimarex did not create the work environment that caused Plaintiff’s
fatigue. 	Cimarex’s argument is too narrow. 	The question related to duty is not

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whether Cimarex had control over Plaintiff’s fatigue or his schedule. The question is
whether Cimarex had any right of supervision over Patterson’s operations such that
Patterson was not free do its work in its own way. See Restatement (Second) of Torts
§ 414 cmt. c.
{16} 	Plaintiff introduced evidence supporting the view that Cimarex indeed had such
supervisory control. Plaintiff submitted the contract between Patterson and Cimarex,
which stated that Patterson would “furnish equipment, labor, and perform services .
. . under the direction, supervision, and control of [Cimarex].” It further provided,
“Except for such obligations and liabilities specifically assumed by [Patterson],
[Cimarex] shall be solely responsible and assumes liability for all consequences of
operations by both parties . . . , including results and all other risks or liabilities
incurred in or incident to such operations.” The contract also stated that “[Cimarex]
agrees to adhere to [Patterson]’s [s]afety [p]rogram, [p]rocedures and [p]olicies[,]”
and Patterson’s safety manual included a provision that every employee had the
authority to prevent any co-worker from performing unsafe acts. In addition, Smith,
Cimarex’s drilling consultant, testified that Plaintiff answered to him while they were
on the rig. 	While Cimarex points to evidence suggesting that Patterson retained
responsibility over the blowout preventer, which was what Plaintiff was en route to
service at the time of the accident, this evidence simply creates an issue of fact about

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whether Cimarex had supervisory control over Patterson’s operations. In any event,
whether Cimarex did or did not have this control is not a determination that could be
made by the district court as a matter of law, given the dispute in the evidence.
{17} 	Cimarex’s arguments about whether it should have recognized that Plaintiff was
fatigued or that his fatigue incapacitated him are not relevant to the question of duty
but instead relate to whether Cimarex reasonably exercised the control it had, if any.
For example, if on remand the court determines—following the fact finder’s
conclusions regarding Cimarex’s retention of control—that Cimarex owed a duty to
Plaintiff, the question becomes whether Cimarex knew or should have known that
Plaintiff was incapacitated by fatigue and, if so, whether it should have done
something affirmative to address the problem. 	The extent of control Cimarex had
informs the extent to which it should have known anything about Plaintiff’s condition
or done anything about it. These are questions related to breach of duty and causation.
{18} 	We 	recognize 	that 	this 	Court 	in 	Fresquez 	v. 	Southwestern 	Industrial
Contractors and Riggers, Inc. stated that “[t]he right in a[n employer] to stop the
[independent contractor] from proceeding with the work if dangerous practices are
observed, does not carry with it liability to the employees of the very same
[independent contractor] causing the dangerous condition.” 1976-NMCA-090, ¶ 39,
89 N.M. 525, 554 P.2d 986. 	However, this statement relates to the question of

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causation, not the concept of duty. If the evidence showed that it was Patterson alone
whose conduct resulted in Plaintiff’s incapacitating fatigue, then a jury could assess
one hundred percent fault against Patterson.
{19} 	To the extent Cimarex is arguing that, as a matter of law, its failure to recognize
the impact of Plaintiff’s fatigue did not constitute a breach of duty or did not
proximately cause Plaintiff’s injuries, we are not persuaded. 	Plaintiff’s evidence
created issues of fact on breach and causation. Plaintiff testified at his deposition that
Smith knew that he had not had any sleep in twenty-four hours at the time the accident
happened. 	Miguel Aguirre, Patterson’s lead tongs floorman, testified that he had
worked with Plaintiff in the days preceding the accident and that Plaintiff looked tired
and told him he had been up working for two days. Other workers on the rig reported
that Plaintiff had looked tired or said he was tired prior to the accident. We “view the
facts in a light most favorable to the party opposing summary judgment and draw all
reasonable inferences in support of a trial on the merits.” Romero v. Philip Morris
Inc., 2010-NMSC-035, ¶ 7, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and
citation omitted). Under this standard, Plaintiff has presented evidence giving rise to
a reasonable inference that workers on the rig, including Cimarex’s consultant, knew
or should have known that Plaintiff was fatigued prior to the accident. It is for the

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jury to decide whether this was in fact the case and, if it was, whether Cimarex’s
knowledge of Plaintiff’s fatigue had anything to do with his accident and injuries.
{20} 	The cases relied on by Cimarex are not helpful to its argument. 	See Nabors
Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009); Nat’l Convenience
Stores Inc. v. Matherne, 987 S.W.2d 145 (Tex. Ct. App. 1999). The courts in both
cases analyzed the facts before them according to the duty announced in Otis
Engineering Corp. v. Clark, which holds that only an employer who takes affirmative
action over an incapacitated employee because of the employee’s incapacitation must
exercise reasonable care to prevent the employee from causing an unreasonable risk
of harm to others. 668 S.W.2d 307, 311 (Tex. 1983); see Nabors, 288 S.W.3d at 403-
404; Nat’l Convenience Stores Inc., 987 S.W.2d at 150. Unlike the showing required
to invoke the duty found in those cases—evidence of actual knowledge of employee
impairment and affirmative exercise of employer control over such impairment—our
interpretation of the duty under the circumstances in the present case requires no such
showing. Instead, if Cimarex had supervisory control over Patterson, which is a fact
question, then Cimarex had a duty to Patterson’s employees to exercise that control
with reasonable care.
CONCLUSION

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{21} 	For the foregoing reasons, we reverse summary judgment and remand for
proceedings consistent with this opinion.
{22} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
M. MONICA ZAMORA, Judge