               IN THE SUPREME COURT, STATE OF WYOMING

                                         2016 WY 3

                                                          OCTOBER TERM, A.D. 2015

                                                                  January 6, 2016

MERIT ENERGY COMPANY, LLC,

Appellant
(Defendant),

v.                                                   S-15-0141

BLAKE HORR,

Appellee
(Plaintiff).


                  Appeal from the District Court of Sweetwater County
                      The Honorable Richard L. Lavery, Judge

Representing Appellant:
      Timothy W. Miller, Attorney at Law, Casper, Wyoming; Weston W. Reeves, Park
      Street Law Office, Casper, Wyoming. Argument by Mr. Miller.

Representing Appellee:
      G. Bryan Ulmer, III, and Grant H. Lawson, The Spence Law Firm, LLC, Jackson,
      Wyoming. Argument by Mr. Ulmer.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Merit Energy Company, LLC, needed to clean out its oil and gas wells that had
become clogged with debris over time. It hired an independent contractor, Basic Energy
Services, Inc., to do the job. Unfortunately, Basic employee Blake Horr was seriously
injured when a stripping rubber launched out of a wellhead due to a buildup of pressure.
Horr sued Merit based on several exceptions to the general rule that the employer of an
independent contractor is not liable for physical harm caused to another by an act or
omission of the contractor or his servants. A jury returned a verdict finding Merit
substantially at fault and that its fault had caused Horr well over two million dollars in
damages. The district court entered judgment on the jury verdict.

[¶2] Merit contends that the district court misapplied Wyoming law both in its
instructions to the jury and in denying Merit’s motion for judgment as a matter of law. A
solicitous review of our law and the record proves otherwise. Accordingly, we affirm.

                                         ISSUES

[¶3] 1. In resolving whether Merit owed a duty to Horr, did the district court err when
it instructed the jury to determine if Merit retained control over any part of the work that
caused injury to Horr?

      2. Did the district court abuse its discretion by refusing to give the jury Merit’s
proposed instruction detailing Basic’s duty of care to Horr, and opting instead to provide
a more general duty of care instruction?

        3. Was the evidence such that reasonable persons could only reach one conclusion
as to the verdict, which would have required the district court to grant Merit’s motion for
judgment as a matter of law?

                                         FACTS

[¶4] Merit owns and operates oil and gas wells in the Lost Soldier Unit near Bairoil,
Wyoming. These are high pressure wells because Merit injects CO2 into the reservoirs in
order to force oil to its producing wells. Over time, the bottoms of the wells accumulate
sand and other debris that limits production. When this occurs, the wells need to be
cleaned out to restore optimal flow.

[¶5] Merit hired an independent contractor, Basic, to clean out a few of these wells.
The field was managed by Merit’s operations manager, John Brooks, who supervised
Merit’s field foreman, otherwise known as the company man. The company man was in
charge of cleanout operations in the field, and he provided direction to Basic’s rig
manager. During the relevant time period, two different Merit company men were in


                                              1
charge. Mike Self held that position when Basic started working in this field. Steve
Kalberer took over in January 2011, roughly three months before the incident with Horr.

[¶6] The equipment used to clean out the well at issue in the instant case included a
stripper head for well control, which was located just above the blowout preventer
(BOP). The stripper head encased a rubber that fit tightly around the tubing or drill pipe
Basic inserted and removed as part of cleanup operations. The rubber was held in place
by bolts into the head’s metal top. The diagram below illustrates the general setup of the
stripper head and associated equipment.




[¶7] Many months before the incident involving Horr, Merit had provided a
“Washington” stripper head, along with the BOP, for the Basic crew to use when
servicing Merit’s wells. Significantly, the Washington head had a release valve that
could be used to relieve pressure trapped between it and the blowout preventer. Without
such a valve, the well would need to be “killed” to control the pressure.1

[¶8] At some point prior to the accident, Merit’s company man, Self, decided that Merit
would no longer pay for the Washington head and told Basic’s supervisor, Willard
Sanders, that Basic needed to provide a different stripper head. Basic obtained a
“Hercules” stripper head, which did not have a release valve. Basic presented the
1
  Killing a well involves pumping fluid down the annulus or well bore until the fluid flows back through
the bottom of the tubing (drill pipe). It is done to overcome the pressure inside the well and keep the oil
and/or gas from reaching the surface. Killing a well is different from top-killing a well, which involves
pumping fluid down the tubing to create a vacuum.


                                                     2
Hercules head to Self for approval, and he approved it even though it did not have a
release valve. A Hercules head was used on the well the day Horr was injured.

[¶9] On April 11, 2011, Horr was part of a Basic crew performing cleanout operations
on one of the wells. Sanders was Basic’s supervisor on the job, Adam Eddy was the
workover rig operator, and Horr was the floorhand. During the job, tubing (drill pipe)
became stuck in the rubber seal in the wellhead as the crew was pulling the pipe out of
the well. The crew stopped work, closed the BOP, and Sanders sought out Kalberer to
see how Merit wanted to proceed.

[¶10] Kalberer came to the well site and had Sanders come over to his truck to discuss
the problem. Without personally inspecting the equipment or checking the well pressure,
Kalberer directed the Basic crew to replace the stripping rubber. Accordingly, Horr
began removing bolts that held the rubber in place. As he did so, pressure trapped
between the BOP and the Hercules head blew the stripping rubber out of the wellhead
and struck Horr while rocketing thirty feet up the drill pipe. Horr suffered serious
injuries to his left hand and arm.

[¶11] Horr sued Merit based upon several exceptions to the general rule that the
employer of an independent contractor is not liable for physical harm caused to another
by an act or omission of the contractor or his servants. The matter made its way to a jury
trial, during which Merit unsuccessfully moved for judgment as a matter of law at the
close of all the evidence.2 After eight days of hearing evidence and argument, the jury
sided with Horr and returned a verdict finding Merit 45% at fault for its own negligence.
The district court entered judgment in Horr’s favor for $2,335,923.90 against Merit based
upon the fault of all parties.3 Merit renewed its motion for judgment as a matter of law
after the verdict was rendered, and the motion was again denied.

[¶12] Merit timely perfected this appeal.

                                           DISCUSSION

Jury Instruction re Direct Negligence Claim

[¶13] Over the years, this Court has had several occasions to address the law concerning
liability of an owner of a worksite who employs an independent contractor when an
employee of that contractor is injured. A close look at our law is necessary in order to
resolve Merit’s first contention that the district court erred in instructing the jury.


2
  A party may move for judgment as a matter of law at any time before the case is submitted to the jury.
W.R.C.P. 50(a)(2).
3
  The jury also found Basic 45% at fault and Horr 10% at fault.


                                                    3
[¶14] Years ago, this Court adopted Restatement (Second) of Torts § 409 (1965,
database updated 2015), which provides that “the employer of an independent contractor
is not liable for physical harm caused to another by an act or omission of the contractor or
his servants.” See Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 894 n.1 (Wyo. 1986); see
also Hittel v. WOTCO, Inc., 996 P.2d 673, 676 (Wyo. 2000). This general rule exists for
good reason. An employer of an independent contractor generally does not have control
over the manner in which the work is done by the independent contractor, so the
independent contractor, rather than the employer, is the proper party upon whom to
impose the obligation to prevent the risk of harm and to bear responsibility if it fails to do
so and injury results. See Restatement (Second) of Torts § 409 cmt. b; see also Jones,
718 P.2d at 895.

[¶15] However, we have recognized two exceptions to this rule. See Jones, 718 P.2d at
893-94. One exception is found in Restatement (Second) of Torts § 414, which deals
with the direct liability of an employer in connection with the work to be done. Id. In
order to recover in such a direct negligence action, the plaintiff must show a legal duty
owed by the defendant to the plaintiff, a breach of that duty, causation, and damages.
Section 414 states:

              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.

Restatement (Second) of Torts § 414.

[¶16] It is important to remember that this exception deals with direct negligence of the
employer based upon a legal duty created because of the control it retains over the
independent contractor’s work. See id.; see also Hill v. Pac. Power & Light Co., 765
P.2d 1348, 1349 (Wyo. 1988). The operative words of this Restatement section are
“control of any part of the work.” The comments to this section provide helpful guidance
as to the level of control required, and thus we quote the bulk of them despite their
length:

              a. If the employer of an independent contractor retains control
              over the operative detail of doing any part of the work, he is
              subject to liability for the negligence of the employees of the
              contractor engaged therein, under the rules of that part of the
              law of Agency which deals with the relation of master and
              servant. The employer may, however, retain a control less
              than that which is necessary to subject him to liability as


                                               4
             master. He 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. Such a
             supervisory control may not subject him to liability under the
             principles of Agency, but he may be liable under the rule
             stated in this Section unless he exercises his supervisory
             control with reasonable care so as to prevent the work which
             he has ordered to be done from causing injury to others.

                                     .      .      .

             c. In order for the rule stated in this Section to apply, the
             employer must have retained at least some degree of control
             over the manner in which the work is done. It is not enough
             that he 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. Such a general right is usually reserved to
             employers, but it does not mean that the contractor is
             controlled as to his methods of work, or as to operative detail.
             There 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.

Restatement (Second) of Torts § 414 cmts. a & c; see Stockwell v. Parker Drilling Co.,
733 P.2d 1029, 1033 (Wyo. 1987).

[¶17] Based upon § 414 and its commentary, this Court has articulated that the owner of
the worksite that employs an independent contractor and

             retains the right to direct the manner of an independent
             contractor’s performance or assumes affirmative duties with
             respect to safety owes a duty of reasonable care to an
             employee of the independent contractor even if the employee
             is injured doing the very work the [independent] contractor
             was hired to perform.

Jones, 718 P.2d at 896; see Hill, 765 P.2d at 1349-50; see also Stockwell, 733 P.2d at
1031-33; Brewster v. Salveson Const., Inc., 765 P.2d 1350, 1353 (Wyo. 1988); Hittel,
996 P.2d at 676; Loredo v. Solvay Am., Inc., 2009 WY 93, ¶¶ 12, 13, 212 P.3d 614, 623,
626 (Wyo. 2009). The analysis is two-fold; that is, courts must determine whether the
employer retained the right to direct the manner of performance or assumed affirmative


                                             5
duties with respect to safety. As to the level of control, “[a]n owner does not have to
retain a great deal of control over the work to be liable for an employee’s harm under §
414 . . . [as] the owner can be liable even if he gives up enough control to make the
contractor an ‘independent contractor’ under vicarious liability analysis.” Jones, 718
P.2d at 895; see Stephenson v. Pac. Power & Light Co., 779 P.2d 1169, 1177 (Wyo.
1989).

[¶18] The other exception to the general rule—wholly different than that of the direct
negligence of the employer—comes in the form of vicarious liability based upon the
principle of respondeat superior. See Dan B. Dobbs, The Law of Torts §§ 333-36 at 905-
20 (2000); Cockburn v. Terra Res., Inc., 794 P.2d 1334, 1338-39, 1342-43 (Wyo. 1990).4
With this exception, the employer is strictly liable for the negligence of the supposed
independent contractor, who turns out to be a servant employee due to the greater degree
of control exercised. Cockburn, 794 P.2d at 1339; see also Dobbs, supra, §§ 333-36 at
905-20. The fundamental question is whether the independent contractor actually is such
or is an employee akin to the longstanding master-servant relationship. See Stephenson,
779 P.2d at 1176.


4
 A statement in Cockburn could be construed to have conflated the analyses for direct liability under §
414 and vicarious liability:

                The product of our precedent is that an employer of an independent
                contractor, although potentially responsible for injuries to employees of
                the contractor, must assume a controlling and pervasive role in the work
                being done in order to generate any duty of care sufficient to establish
                vicarious liability for the negligence of the independent contractor.

794 P.2d at 1342; see Nat. Gas Processing Co. v. Hull, 886 P.2d 1181, 1184 (Wyo. 1994). While both
exceptions turn on retained control, they require different levels of such control, and are based on
different principles of tort law: negligence versus strict liability based on respondeat superior. We
interpret the statement in Cockburn—“controlling and pervasive role”— and other cases reciting the same
to mean that there must be a controlling and pervasive role by the employer over the independent
contractor’s performance of the work to transform that relationship into one of master-servant, thus
creating a situation where the employer is vicariously liable for the independent contractor’s negligence.

        A subsequent statement in Franks v. Indep. Prod. Co., 2004 WY 97, ¶ 10, 96 P.3d 484, 490
(Wyo. 2004), also merits clarification. Franks dealt with a vicarious liability theory (although it
imprecisely used the term “duty”), wherein we stated that “[t]wo limited exceptions to non-liability have
been recognized in our previous decisions: (1) workplace owner/employer (owner) exercises controlling
and pervasive role over the independent contractor’s work; or (2) owner assumes affirmative safety
duties.” Id. While the former statement fairly describes the level of control for vicarious liability
purposes under the principle of respondeat superior, the latter regarding the assumption of affirmative
safety duties is part of the direct negligence theory under § 414 of the Restatement (Second) of Torts.
Thus, in a § 414 direct negligence claim, the pronouncement from Jones controls, see ¶ 17 supra, not that
contained in Franks and other cases. See, e.g., Singer v. New Tech Eng’g L.P., 2010 WY 31, ¶ 26, 227
P.3d 305, 313 (Wyo. 2010); Hjelle v. Mid-State Consultants, Inc., 394 F.3d 873, 877 (10th Cir. 2005).


                                                     6
[¶19] “The overriding consideration in distinguishing between master-servant
relationships and employer-independent contractor relationships is the employer’s right
to control the means and manner of the work.” Singer v. New Tech Eng’g L.P., 2010 WY
31, ¶ 9, 227 P.3d 305, 309 (Wyo. 2010). This right to control is a requirement of the
master-servant relationship. Id. Equally, the absence of such a right of control is a
prerequisite of an independent contractor relationship. Id. “Master-servant and
independent contractor are thus opposite sides of the same coin; one cannot be both at the
same time with respect to the same activity; the one necessarily negatives the other, each
depending on opposite answers to the same right of control inquiry.” Coates v.
Anderson, 2004 WY 11, ¶ 7, 84 P.3d 953, 957 (Wyo. 2004); see also Kruckenberg v.
Ding Masters, Inc., 2008 WY 40, ¶ 21, 180 P.3d 895, 901 (Wyo. 2008).

[¶20] If there is an express contract between the parties, such a document is important in
defining the relationship, but it is not conclusive of the issue. Diamond B Servs., Inc. v.
Rohde, 2005 WY 130, ¶ 29, 120 P.3d 1031, 1041 (Wyo. 2005); Singer, ¶ 9, 227 P.3d at
309; Coates, ¶ 14, 84 P.3d at 959. Additional factors that ought to be considered include
the method of payment; right to terminate the relationship without incurring liability;
furnishing of tools and equipment; scope of the work; control of the premises where the
work is to be done; and if the worker devotes all of his efforts to the position or if he also
performs work for others. Singer, ¶ 9, 227 P.3d at 309.

[¶21] In the instant case, Horr sued Merit based on both of these exceptions. The jury
found that Merit retained sufficient control over the portion of Basic’s work that caused
Horr’s injuries to owe him a duty under § 414.5 It then determined that Merit beached
that duty, and found the company 45% at fault for causing Horr’s injuries. However, the
jury did not find that Merit exercised a controlling and pervasive role over Basic’s work
that converted the employer-independent contractor relationship with Basic to one of
master-servant. Thus, Merit avoided vicarious liability for Basic’s negligence, which the
jury found to amount to 45% of the total fault. The narrow issue Merit raises on appeal
concerns whether the district court properly instructed the jury regarding the direct
negligence claim under § 414, which Merit contends it did not.

[¶22] Jury instructions provide the jury needed guidance as to the applicable law in a
given case. Pina v. Christensen, 2009 WY 64, ¶ 5, 206 P.3d 1298, 1299-300 (Wyo.
2009). “Instructions are sufficient if they correctly state the law, they are not misleading,
and they permit the parties to argue their respective theories of the case. Instructions must
not be extracted piecemeal to establish error, but rather are reviewed in their entirety.”


5
  Whether a duty of care exists is often a question of law to be resolved by the court. Lee v. LPP Mortg.
Ltd., 2003 WY 92, ¶ 20, 74 P.3d 152, 160 (Wyo. 2003). However, whether the employer of an
independent contractor retained sufficient control to impose a duty of care is a question of fact for the jury
unless only one reasonable inference can be drawn. See Loredo, ¶¶ 12, 13, 212 P.3d at 622, 626 (citing
Noonan v. Texaco, Inc., 713 P.2d 160, 164 (Wyo. 1986)).


                                                       7
Id. That an instruction could have been more precisely drafted or in a way more
favorable to a party does not warrant reversal for a new trial. Id. at ¶ 7, 206 P.3d at 1300.

[¶23] The legal sufficiency of jury instructions is reviewed de novo, with this Court
asking first whether an instruction is erroneous, and second whether the error prejudiced
a party.6 Id. at ¶ 6, 206 P.3d at 1300. Prejudice is not presumed and the burden is on the
appellant to demonstrate it. Id. The district court has extensive discretion in tailoring
jury instructions, so long as they correctly state the law and fairly and adequately cover
the issues presented. Id. at ¶ 8, 206 P.3d at 1300. Accordingly, our review of a district
court’s decision to give or refuse a particular jury instruction is for an abuse of discretion.
Id.

[¶24] The district court instructed the jury as follows concerning the general rule
governing the direct negligence exception:

                         As a general rule, one who entrusts work to an
                 independent contractor is not obligated to control the work
                 done by the independent contractor or protect the independent
                 contractor’s employees from hazards which are part of the
                 work. But, if one who entrusts work to an independent
                 contractor retains control of any part of the work, it is subject
                 to liability for physical harm to others which is caused by its
                 failure to exercise its control with reasonable care. You must
                 determine whether Merit Energy Company retained control
                 over any part of the work which caused injury to Blake Horr.
                 If you find that Merit Energy Company retained control over
                 an aspect of work which caused Blake Horr’s injuries and
                 damages, then you are instructed that Merit Energy Company
                 owed a duty to Blake Horr to exercise the degree of care
                 which should reasonably be expected of the reasonable
                 careful person under the same or similar circumstances.

This language parallels Restatement (Second) of Torts § 414 and our precedent.
6
  Horr urges us to find Merit’s objection to the proposed instruction insufficient and therefore to apply a
plain error standard of review. We decline the invitation. Wyoming Rule of Civil Procedure 51(b)
directs that “[n]o party may assign as error the giving or the failure to give an instruction unless that party
objects thereto . . ., stating distinctly the matter objected to and the grounds of the objection.” As this
Court has explained, the rule requires an attorney to provide the district court with a meaningful
explanation for the objection concerning the nature of the contended error and the specific grounds for the
objection in order for the trial judge to exercise its discretion in re-evaluating the instruction. See Werner
Enterprises, Inc. v. Brophy, 2009 WY 132, ¶ 18, 218 P.3d 948, 954 (Wyo. 2009). Merit provided the
district court a proposed jury instruction with the exact language that it argues on appeal was legally
correct. Merit explained at the instruction conference that it objected to the failure to give the instruction
in the form it proposed. Merit’s objection was sufficient under Rule 51(b) and our precedent.


                                                       8
[¶25] Nevertheless, Merit takes issue with the phrase “retained control over any part of
the work,” claiming that our law required a statement similar to that contained in its
proposed jury instruction: “If you find Merit Energy Company retained control over a
hazard that caused harm to Blake Horr, then Merit Energy Company had a duty to
exercise its control with reasonable care under the circumstances.” (Emphasis added).
Merit maintains that use of the word “hazard” as it proposed was crucial and called for by
Jones. We disagree.

[¶26] In Jones, this Court explained the direct negligence exception in § 414 in great
detail, and indeed quoted that section in its entirety to make the point clear. 718 P.2d at
895. Based upon § 414, we plainly held “that an owner of a work site who retains the
right to direct the manner of an independent contractor’s performance or assumes
affirmative duties with respect to safety owes a duty of reasonable care to an employee of
the independent contractor even if the employee is injured doing the very work the
contractor was hired to perform.” Id. at 896.

[¶27] In arriving at our holding in Jones, we did say that the general rule “should not
apply when the owner maintains control over the hazard that causes the harm.” Id. at
895; see also Stephenson, 779 P.2d at 1177. This statement does not obfuscate the patent
holding of the case. While “control over the hazard” could theoretically be misconstrued
to mean something different than “control over any aspect of work which caused Blake
Horr’s injuries,” we see no realistic discernible difference in this case. Furthermore, to
accept Merit’s thinking would be to confuse the nature of the contracted work with
control over its methods and means. See Traudt v. Potomac Elec. Power Co., 692 A.2d
1326, 1334-35 (D.C. 1997). Any possible confusion should be resolved by this opinion.

[¶28] The instruction given by the district court correctly stated the law and was not
misleading. It was therefore not erroneous.

Jury Instruction re Basic’s Duty of Care

[¶29] Merit also takes issue with the district court’s decision not to provide the jury with
an instruction on the specific duty Basic owed Horr. We have already explained the
standard of review we apply when a trial court’s instructions are challenged, and we need
not repeat it. See ¶¶ 22-23, supra.

[¶30] We have reviewed the instructions in their entirety, and we cannot say that the
district court abused its discretion in not giving Merit’s proposed instruction. The
instructions that were given by the district court supplied the jury with the following
direction in regard to the duty of care:




                                              9
    Instruction No. 18: “Merit Energy Company owed a duty to Blake Horr to
     exercise the degree of care which should reasonably be expected of the reasonable
     careful person under the same or similar circumstances.”

    Instruction No. 19: “Basic Energy Services had a duty to exercise reasonable care
     in the performance of its work.”

    Instruction No. 20: “Blake Horr had a duty to exercise reasonable care in the
     performance of his work.”

[¶31] There was evidence and argument concerning Basic’s obligations to Horr. Based
upon the instructions, the jury allocated 45% of the fault to Merit, 45% to Basic and 10%
to Horr.

[¶32] These instructions—along with other instructions such as those on Horr’s burden
of proof and allocation of fault—correctly stated the law, were not misleading, and
permitted counsel for the parties to argue their respective theories of the case.
Accordingly, the district court did not abuse its discretion in refusing to instruct the jury
as Merit proposed.

Judgment as a Matter of Law

[¶33] Judgment as a matter of law under Wyoming Rule of Civil Procedure 50 should be
granted cautiously and sparingly. Johnson v. Reiger, 2004 WY 83, ¶ 8, 93 P.3d 992, 995
(Wyo. 2004). Merit contends that it ought to have been granted because Horr did not
provide sufficient evidence to raise a jury question as to whether it owed him a duty or
not. In order to prevail on this argument, Merit had to show that the evidence was legally
insufficient to support Horr’s claim, leaving the district court with no choice but to enter
judgment in its favor without submitting the question to the jury. See id.

[¶34] “We review de novo a decision to grant or deny judgment as a matter of law,
meaning we examine the record anew affording no deference to the district court’s
views.” Id. The test is whether the evidence appearing in the record is such that
reasonable persons could reach but one verdict. Id. The evidence is viewed in the light
most favorable to the nonmoving party, and that party is given the benefit of all
reasonable inferences that may be drawn from it. Id. “When the evidence permits more
than one reasonable inference or the inferences favorable to the moving party are subject
to doubt, the matter is properly for the jury to decide and a motion for judgment as a
matter of law must be denied.” Id.

[¶35] We have carefully reviewed the entire record designated by the parties. Viewing
the evidence in the light most favorable to Horr, and giving him all reasonable inferences
that may be drawn from it, we conclude that the evidence presented a jury question as to


                                              10
whether Merit owed him a duty under the exception in § 414 because of its retained
control over parts of the work that caused his injuries. Several witnesses testified
regarding the level of control Merit exercised over Basic’s cleaning of the wells,
including the well involved in this case. Merit’s own employees—Brooks and Kalberer—
testified as to the level of control it exercised over the equipment and procedures relating
to the cleanout process and regulation of well pressure. Basic’s employees—such as
supervisor Sanders—confirmed important points as to the level of control.

[¶36] To summarize the evidence in the light most favorable to Horr, Merit controlled
the pressure of its well through injection of CO2, and it retained control over the
equipment used to control the pressure, including the stripper head utilized. It had
expertise in the management of well pressure. It retained authority to kill the well, which
it did not direct to be done, and its company man told Basic what to do when the pipe
became stuck during the cleanout process without checking well pressure or the tubing
stuck in the wellhead. This evidence was sufficient to raise a jury question as to whether
Merit retained control over the portion of Basic’s work that caused Horr’s injuries and
therefore owed him a duty of care.

[¶37] We conclude that the evidence, when viewed in the light most favorable to Horr,
was sufficient to permit more than one reasonable inference as to whether there was
sufficient control to impose a duty, and that inferences favorable to Merit were subject to
doubt. The issue was therefore for the jury to decide, and the district court did not err in
denying Merit’s motion and renewed motion for judgment as a matter of law.

[¶38] Affirmed.




                                              11
