UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GILBERT YBARRA and MICHAEL BOWNDS,

Plaintiffs-Appellants,

v.

AMOCO PRODUCTION COMPANY,

Defendant-Appellee.

No. 98-2189

(D.C. No. CIV-96-838-LH)

(D. N.M.)

ORDER AND JUDGMENT*

Before PORFILIO, McKAY, and LUCERO, Circuit Judges.

Plaintiffs Gilbert Ybarra and Michael Bownds appeal from the district court's grant of summary judgment in favor of defendant Amoco Production Company on their claim for negligent failure to warn relating to their exposure to the chemical Selexol while working at an Amoco facility.1 Reviewing the district court's decision de novo under the same standards it applied, see Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995), we conclude there is a factual dispute regarding the adequacy of Amoco's warnings and reverse.

Amoco operates a carbon dioxide recovery plant near Sundown, Texas, and hired Hydroblast Corporation in June 1994 to pressure test the tubes in its heat exchanger system to determine the presence of and locate any leaks in the system. Selexol is a chemical solvent used in the heat exchangers to maximize carbon dioxide recovery. Plaintiffs, Hydroblast employees, were part of a crew sent to the plant to do the testing with air pressure. During the testing, Selexol was blown from the tubes, drenching plaintiffs and allegedly causing their injuries. In June 1996, plaintiffs brought this diversity action against Amoco and Union Carbide Corporation, the manufacturer of Selexol, raising strict liability and negligence claims involving the design, manufacture and sale of the chemical, and a negligence claim for failure to adequately warn of the danger posed by the chemical. Subsequently, plaintiffs and Union Carbide settled, and plaintiffs dropped their claims involving the design, manufacture and sale of Selexol.

Amoco moved for summary judgment on the remaining failure-to-warn claim, which the district court granted. Applying Texas law, the court concluded that the claim was governed by the principles applicable to the respective responsibilities of an owner or occupier of land and an independent contractor employed to do work on the premises. Quoting Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390, 394 (Tex. 1967), the court noted the general principle that

[w]hile an owner owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to discharge the landowner's alternative duty to warn the employees.

Appellant's App. at 142. The court then held that Amoco had provided adequate warnings to Tom Miller, the owner and manager of Hydroblast, regarding the danger posed by Selexol, and thus was relieved from the further burden of warning plaintiffs directly.

Plaintiffs raise three arguments on appeal. First, they contend that by preventing Hydroblast from cleaning the tubes before testing them, which they claim is Hydroblast's normal procedure, Amoco assumed control of at least part of the operations and thus altered the duty of care it owed plaintiffs. See, e.g., Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). Second, they contend that because an Amoco employee at the plant assured the Hydroblast crew before they began the testing that there was nothing in the tubes that could hurt them, Amoco's warnings as a whole were inadequate. Third, they contend that certain regulations promulgated by the Occupational Health and Safety Administration (OSHA) should be imposed to expand the duty owed plaintiffs by Amoco. We address only the second argument on the merits.2

Plaintiffs do not challenge the district court's finding that Amoco adequately warned Hydroblast's Miller of the dangers associated with the Selexol system at the Amoco facility. Instead, they contend there is a factual dispute regarding whether these warnings were invalidated or modified by statements made by an Amoco employee to Randy Hinds, Hydroblast's crew foreman, when the crew arrived at the facility to begin the testing.3

According to Hinds, when the crew got to the site, he told an unidentified Amoco employee that ordinarily they "lanced" the tubes before testing them, a process by which they cleaned out any debris and chemicals that may be in the tubes. He asked the employee whether Amoco wanted them to lance the tubes, which would be an additional cost over the pressure testing, and the employee told him no. He then asked whether there was anything in the tubes that could harm them, which he said he would always ask of employees at the various facilities at which Hydroblast worked, and the employee again replied no. On the basis of this response, Hinds decided not to require the crew to wear "slicker suits," protective coveralls designed to keep any harmful chemicals from coming in contact with the wearer's skin. The crew proceeded with the testing wearing only face or eye protection, and the testing somehow resulted in Selexol being blown out of the tubes and drenching three of the Hydroblast crew members, including plaintiffs. Plaintiffs contend that the statement by the facility employee, that there was nothing in the tubes that could harm the Hydroblast crew, essentially negated or amended the more formal warnings Amoco had given to Miller, thus raising a factual dispute regarding the adequacy of the warnings. See Jordan v. Geigy Pharmaceuticals, 848 S.W.2d 176, 182 (Tex. Ct. App. 1992) (adequacy of warning is question of fact).

In response, Amoco first contends that because plaintiffs "cite no legal authority for the proposition that a comment such as the one at issue can invalidate all previous warnings provided to a contract employer," we should not consider this argument on appeal. Appellee's Br. at 15. We do not agree that plaintiffs needed to cite legal authority to support the commonsense principle that warnings are not inviolable and may be altered or modified by subsequent actions. There may be questions about the validity or effect of this alleged modification of Amoco's earlier warnings, such as whether the facility employee had the authority to amend the earlier warnings or whether Hinds' reliance on his statement was reasonable, but these are questions neither Amoco nor the district court has addressed.

Amoco primarily argues that the employee's statement is irrelevant because it did not proximately cause plaintiffs' alleged injuries. See, e.g., Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (proof of proximate causation includes showing that "act or omission was a substantial factor in bringing about injury, without which the harm would not have occurred") (quotation omitted).4 It frames the dispute at this point as, what caused Hydroblast's crew foreman Hinds not to require the crew to wear the slicker suits.5 (Plaintiffs do not dispute Amoco's contention, supported by expert testimony, that wearing slicker suits or washing the chemical off their bodies soon after being exposed to it would have prevented their injuries.) Amoco contends that notwithstanding the statement by the facility employee, Hinds would have required his crew to wear slicker suits if he had been advised, as he is deemed to have been advised under Texas law, of the warnings Amoco gave to Miller.

Hinds testified in his deposition that he had neither been warned of the dangers of Selexol nor even heard of the chemical prior to the accident. He stated that he knew at the time of the employee's statement that the best sources of information regarding the potential dangers of Selexol were Miller and the applicable material safety data sheet containing warnings regarding Selexol, but he simply did not think about seeking additional information. He also testified that had he known of the dangers associated with the use of Selexol, he would have required the crew to wear the protective slicker suits. See Appellants' App. at 70, 104.6

This evidence does not prove, however, that the statement by the facility employee was immaterial for summary judgment purposes, as Amoco contends. Its proximate cause argument suffers from the same frailty as its earlier argument- -the presumption that its formal warnings to Miller and could not be affected by subsequent actions. Hinds did not say--or more accurately, speculate about--what he would have done had he been aware of the dangers of Selexol, but then been told by an Amoco employee at the facility at the time they were to begin testing that there was nothing in the tubes that could harm them. Amoco thus has not met its burden of showing that there are no factual disputes regarding what proximately caused plaintiffs' injuries.

Viewing the facts in plaintiffs' favor, the employee's statement may be considered to have modified the prior, more formal warnings Amoco gave to Miller, and thus creates a factual dispute regarding the adequacy of Amoco's warnings. Because of the existence of this factual dispute, the district court erred in granting summary judgment in favor of Amoco. Accordingly, the judgment is VACATED and the case is REMANDED for further proceedings.

Entered for the Court

Carlos F. Lucero

Circuit Judge