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Tuesday, April 7, 2020

After co-worker bashes pressurized hose with sledgehammer, man loses lawsuit over resulting injuries

State Court

By Scott Holland | Jan 30, 2020


BISMARCK, N.D. (Legal Newsline) – The North Dakota Supreme Court has upheld a lower court’s decision dismissing a worker’s negligence lawsuit.

Justice Jerod Tufte wrote the unanimous opinion issued Jan. 23. Surrogate Judge Bruce Haskell sat in place of Justice Lisa McEvers, who was disqualified from hearing arguments.

"We conclude the facts, viewed in a light most favorable to (plaintiff Dylan) Devore, do not support a conclusion that American Eagle, (Integrated Petroleum Technologies), or (Brian) Barony owed Devore a duty of care or proximately caused his injuries," Tufte wrote. "We affirm the summary judgments."

Devore sued American Eagle Energy Corp. in Divide County District Court alleging the company was responsible for his injury on March 2, 2014. Devore was a crew supervisor for Fort Berthold Services, which provided water transfer services for oil well hydraulic fracturing. Devore’s injury occurred when a crew member, attempting to free an ice blockage, struck a pressurized water hose with a sledgehammer, causing it to break apart and uncontrollably whip around, striking Devore.

Devore also sued Barony and his employer, Integrated Petroleum Technologies, a consulting firm that contracted with American Eagle. District Judge Joshua Rustad granted summary judgment in favor of the defendants, prompting Devore’s appeal.  

On appeal, Devore argued the lower court shouldn’t have granted summary judgment because there was a factual dispute regarding whether American Eagle retained sufficient control over Devore, as an independent contractor, establishing its duty of care. But the court explained North Dakota law holds employers of independent contractors generally aren’t liable for the contractor, unless they retain control over the contractor’s work.

“Undisputed evidence showed Devore was an employee of FBS, FBS was an independent contractor of American Eagle, and FBS had exclusive control over the method, manner and operative detail of its work,” Tufte wrote. “Because American Eagle did not retain control over its independent contractor FBS’ work, it is not liable as a matter of law for FBS’ negligence.”

Devore’s case against Barony and IPT similarly failed, Tufte wrote, because they were not Devore’s employer nor did IPT have a contractual relationship with FBS.

“IPT and Barony had no authority to terminate FBS or Devore on behalf of American Eagle,” Tufte wrote. “Devore knew any FBS employee had authority to stop work if anything appeared to be unsafe.”

The court said the fact American Eagle and IPT didn’t owe a duty of care also nullified Devore’s argument the companies caused his injuries.

Douglas Allison, of Corpus Christi, Texas, and Jeffrey Weikum, of Bismarck, North Dakota, represented Devore.

Kent Reierson and Lisa Six, of Williston, North Dakota, represented American Eagle.

Representing IPT and Barony were Kathleen Pritchard and Shannon Stevenson, of Denver and Harry Pippin, of Williston, North Dakota.

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North Dakota Supreme Court