                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               JUN 16 1999
                            FOR THE TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

    GILBERT YBARRA and MICHAEL
    BOWNDS,

                Plaintiffs-Appellants,
                                                          No. 98-2189
    v.                                             (D.C. No. CIV-96-838-LH)
                                                           (D. N.M.)
    AMOCO PRODUCTION COMPANY,

                Defendant-Appellee.


                            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

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
                                                                        (continued...)
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


1
 (...continued)
therefore ordered submitted without oral argument.


                                           -2-
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

                                             -3-
(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,

2
        In its response brief, Amoco contended that plaintiffs failed to raise their
first argument in the district court and that we therefore should not consider it on
appeal. In their reply brief, plaintiffs did not respond to this argument, nor have
they ever identified where in the record they raised this argument, as required by
10th Cir. R. 28.2(c)(2) (formerly Rule 28.2(b)), and from our review of the
record, it does not appear that they did raise it below. We leave to the district
court whether plaintiffs may assert this argument on remand, should they wish to.

       As to plaintiffs’ third argument, it is so perfunctorily presented that we will
not address it. See Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994);
National Commodity & Barter Ass’n, Nat’l Commodity Exch. v. Gibbs         , 886 F.2d
1240, 1244 (10th Cir. 1989).
3
       Although at the summary judgment hearing, the district court questioned
the parties concerning the effect of the employee’s statement, it did not address
this issue in ruling in Amoco’s favor.

                                              -4-
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


                                          -5-
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


4
       Although Amoco raised the issue of proximate causation in the district
court, the court did not specifically address it in its ruling.
5
      Plaintiffs also contend that plaintiff Bownds testified that he would have
worn a slicker suit if not for the Amoco employee’s statement, but the record does
not support this contention. The causation inquiry thus focuses solely on what
caused Hinds not to require the crew to wear the protective suit.

                                                -6-
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




6
       The material safety data sheet for Selexol, which had been provided to
Miller, described precautions to be taken in handling the chemical, stated that it
causes skin irritation, and warned that users should avoid contact with skin and
clothing and wash thoroughly after handling. As to the warnings regarding
Selexol, Hinds testified as follows:

       Q.         Am I correct that one way by which you can avoid contact with
                  your skin and clothing is to wear a slicker suit?

       A.         Right.

       Q.         And I gather that if you had read or been informed of these
                  warnings before you worked on the Selexol exchanger that you
                  would have seen to it that your men would have worn a slicker
                                                                          (continued...)

                                             -7-
         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-



6
    (...continued)
                suit?

         A.     Yes, sir.

         Q.     You, yourself, would have worn a slicker suit as well?

         A.     Yes, sir.

Id. at 104.

         Q.     Page 4-13 of Exhibit 4, there is a longer explanation of the
                Selexol solvent system?

         A.     Yes, sir.

         Q.     And the next page it tells you what the hazards are and as to
                this particular system, the hazards are flammability, pressure,
                temperature, toxicity, electrical shock, rotating equipment and
                chemical burns. Is that correct?

         A.     Yes, sir.


         Q.     If you had seen or if Mr. Miller had told you what was in this
                Exhibit 4, it [sic] you had been told that the hazards in there
                involved toxicity and chemical burns, would you have done
                anything differently out at the Amoco plant in June of ‘94?

         A.     Yes. I would have made them wear their slicker suits.

Id. at 70.

                                            -8-
-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




                                           -9-
