1

Certiorari Denied, January 28, 2014, No. 34,472

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-026

Filing Date: November 25, 2013

Docket No. 32,164

LARRY SHERMAN,

Plaintiff-Appellant,

v.

CIMAREX ENERGY CO., CIMAREX

ENERGY CO. OF COLORADO and

MAGNUM HUNTER PRODUCTION INC.,

Defendants-Appellees,

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY

Gary L. Clingman, District Judge

Sutin, Thayer & Browne, P.C.

Timothy J. Atler

Kerry Kiernan

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
1

While Cimarex disputes that Plaintiff worked for twelve consecutive days, that

dispute is immaterial to our resolution of this case.

2

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 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

supervision1

.

{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.
2

Our Supreme Court has noted that in the context of landowner-contractorsubcontractor 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.

3

{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 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-NMSC018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (internal quotation marks and citation omitted), in the

context of the relationship between an independent 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
4

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 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.

{9} 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 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.

{10} 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.
5

{11} 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”).

{12} 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 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”).

{13} 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 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.

{14} 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
6

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.

{15} With these principles in mind, we turn to the circumstances and arguments in the

present case.

Issues of Fact Preclude Summary Judgment

{16} 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 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.

{17} 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 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.

{18} 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
7

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.

{19} 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 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.

{20} 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 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.

{21} 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
8

is a fact question, then Cimarex had a duty to Patterson’s employees to exercise that control

with reasonable care.

CONCLUSION

{22} For the foregoing reasons, we reverse summary judgment and remand for

proceedings consistent with this opinion.

{23} IT IS SO ORDERED. 

______________________________________

CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________

JAMES J. WECHSLER, Judge

____________________________________

M. MONICA ZAMORA, Judge

Topic Index for Sherman v. Cimarex Energy Co., No. 32,164

APPEAL AND ERROR

Standard of Review

CIVIL PROCEDURE

Summary Judgment

EMPLOYMENT LAW

Independent Contractor

NEGLIGENCE

Breach of Duty

Duty

TORTS

Premises Liability

WORKERS’ COMPENSATION

Independent Contractor