Energy-Related Litigation: Personal Injury

Energy-Related Litigation:

Personal Injury

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Keynote Speakers

W. Randolph Fife

Energy-Related Litigation:

Personal Injury

Firm Study

The expansion of oil and gas work

AND

Personal Injury Litigation

• Typical scenario: drilling of well and

accident

– Explosion

– Slip and fall

– Injured worker – Damage to land

• Litigation no longer just between Plaintiffs

Elements of Negligence Action

• To establish liability in a negligence action,

Plaintiff must prove: (a) Duty

(b) Breach

(c) Proximate Cause (d) Damages

Negligence Per Se is

Double (Edged Sword)

Involves a violation of a statute or regulation

• Plaintiffs may argue that regulatory

violations constitute negligence per se or

are otherwise evidence of negligence

• Defendants argue that compliance with

these requirements establish that no negligence occurred

Gross Negligence

• Reckless and Wanton conduct

Contractor Liability

• Allegations for failing to: – make a safe workplace – to act reasonably

– stop unsafe activities – properly supervise – train

– implement or enforce proper policies, rules

Liability of Those On The Job Site

Duty based on:

(1) Relationship (2) Knowledge Or

Different Status of Claimant

• 3 general roles: – Trespasser

– Licensee – Invitee

OH/PA/WV - Trespasser

• No authority to enter or remain on land! • Duty not to willfully or purposefully injure!

Ohio Exception Trespasser Rule

Children, if they know:

– Likely trespass

– Condition could cause serious injury or death – No discovery

And

– The balance of need < danger

And

West Virginia Distinction

• Only trespasser and licensee/invitee

• Duty: Reasonable Care Under The Circumstances • Look at:

– Foreseeability – Severity

– Time, Manner and Circumstances – Normal Use of Premises

Licensee

• Consent Obtained • General liability if:

‒ Knows or has reason to know of the condition ‒ Failure to exercise reasonable care

‒ Claimant not know of condition

• OH: Same as duty owed to trespasser • PA: Same as general

Ohio and Pennsylvania Invitee

• Express or Implied Invitation as – Member of the public, or

– Mutually beneficial business • Liability:

(a) Know of or not to discover unreasonably dangerous condition

(b) Expect not to discover it

(c) Failure to exercise reasonable care to protect against the danger

Ohio

• A construction site is inherently dangerous • Primary responsibility on:

Subcontractor NOT

Independent Contractors

• Employee or independent contractor? – Depends on Amount of Control!

Comparative/Contributory Negligence

OH/PA:

– No recovery if negligence is 51% or

greater

– If 50% or less, award is diminished by

percentage of negligence of Plaintiff

WV:

Ohio

Joint and Several Liability

• if 50% on 1 defendant then liable for all

and other for % share

• if < 50% on 1 defendant where

Pennsylvania

Joint and Several Liability

• if 60% or more at fault, can be liable for all • If action involves intentional

misrepresentation, intentional tort or

release/threatened release of hazardous substance, can be liable for all

West Virginia

Joint and Several Liability

For defendants who liability is 30% or less, only liable for % of damages.

Ohio Punitive Damages

• Purpose to punish and deter NOT compensate • Not recoverable unless both

– The actions or omissions demonstrate malice

And

– Proof of actual damages • Malice is the state of mind

Pennsylvania Punitive Damages

• Only awarded for outrageous conduct – Evil Motive or

– Reckless Indifference to the rights of others • Should consider:

– The character of the person's act,

– The nature and extent of the harm, and – The wealth of the wrongdoer

West Virginia Punitive Damages

Done maliciously, wantonly, or with criminal indifference. Objectives include:

1) Punishing the defendant 2) Deterring others

3) Providing additional compensation for egregious conduct

4) Encouraging a plaintiff to bring an action where he or she might be discouraged by the cost of the action 5) As a substitute for personal revenge by the injured

party

Ohio Statute of Limitations

Type of Claim Period Authority

Bodily injury 2 years R. C. § 2305.10

Injury to personal property 2 years R. C. § 2305.10

Wrongful death 2 years R. C. § 2125.02

Employer Intentional Tort 2 years R. C. § 2125.02

Contracts in writing 8 years R. C. § 2305.06

Contracts not in writing 6 years R. C. § 2305.07

Trespass or taking or

Pennsylvania Statute of Limitations

Type of Claim Period Authority

Bodily injury 2 years 13 Pa.C.S. 5525

Injury to personal property 2 years 13 Pa.C.S. 5525

Wrongful death or taking or

detaining of personal property 2 years 13 Pa.C.S. 5524

Trespass upon real property 4 years 13 Pa.C.S. 5525

Contracts in writing 4 years 13 Pa.C.S. 5525

West Virginia Statute of Limitations

Type of Claim Period

Bodily injury 2 years

Injury to personal property 2 years

Wrongful death 2 years

Employer Intentional Tort 2 years

Contracts in writing 10 years

Cross-Claims

• Express Indemnity: Based on written

agreement

• Implied: Arising out of relationship of

Anti-Indemnity Provisions

OH: Can’t make someone else assume your own negligence!

(R. C. § 2305.31)

See also Ohio Rev. Code Ann. § 4123.82(a)

PA: Voids indemnification for design professionals. 68 P.S. §491

WV: Allows a provision in the contract allowing indemnity for one’s solo negligence, so long as the provision is tied to a requirement to purchase insurance.

Nuisance Claims

Interferes with the use or enjoyment of land. 1) Private nuisance - unreasonable

interference

2) Public nuisance - broader harm to the public

Ohio Nuisance Claims

• Cease and desist

• Standard is Reasonableness • Factors include:

– Location and

Pennsylvania Nuisance Claims

• Unreasonable, Unwarrantable, or Unlawful

Use

• To the right of another, or the public

• Producing annoyance, inconvenience, or

discomfort

West Virginia Nuisance Claims

• Noxious odors • Poor air quality • Water pollution • Flash flooding • Noise

West Virginia Trespass Claims

• Conduct must result in an actual,

nonconsensual invasion of property that interferes with the possession and use of that property

• When the drilling bit or wellbore itself

physically intrudes into the earth beneath a surface estate, such action constitutes a

Damages for Trespass

• Physical subsurface trespass

‒ Temporary and

‒ Permanent damages

• Taking of minerals

‒ Good or ‒ Bad faith

Ohio Deliberate Intention

Intent presumed if:

A. Deliberately lied about whether a substance was toxic or hazardous and that substance injured the employee, or

B. If an employer deliberately removed an

“equipment safety guard” and that removal injured the employee.

R.C. 2745.01.

Note: 6th Dist. Court of Appeals - non-operators injured by removal of such a device could also obtain a presumption of intent.

West Virginia Deliberate Intention

• Requirement for workers’ compensation coverage • Immune from Liability

• Narrow Exception?

• Elements of statutory test:

– Unsafe working condition – Actual Knowledge.

– Violation of a written rule or standard – Intentional Exposure

Pennsylvania Immunity Exception

• Employer’s fraudulent representations that aggravated

work related injury

• Employer’s failure to maintain the mandatory Workers'

Compensation insurance

• Intentional acts, which are not related to work

• Sexual Harassment, Discrimination, Defamation or

Wrongful discharge cases

• Argument by employer that the accident did not occur in

course and scope of employment

• Conduct of third parties to injure

Ultra-Hazardous Activities

Strict liability for blasting, oil drilling and

Ultra-Hazardous Activities

• General Factors:

1) Existence of a high degree of risk of harm to the person, land, or chattels of others

2) Likelihood that the harm that results from the activity will be great

3) Inability to eliminate the risk by the exercise of reasonable care

4) Extent to which the activity is not a matter of common usage 5) Inappropriateness of the activity to the place where it is

carried on

6) Extent to which its value to the community is outweighed by its dangerous attributes

Ultra-Hazardous Activities

• OH: Not determined • PA: Fact-Intensive

Points to Take Away

• Energy related personal injury litigation is

increasing in the Marcellus and Utica Shale areas

• Protect yourself by knowing the laws of the

jurisdictions in which you operate

• Carefully draft and/or update all

indemnification agreements to ensure that they comply with the laws of the

Points to Take Away

• Understand the relationship of all

individuals and companies to you on the jobsite

• Take reasonable measures to protect

everyone on the jobsite

• Review your insurance policies to make

Thank You!

Randy Fife

Charleston, WV

randy.fife@steptoe-johnson.com 304.353.8115

Phillip Glyptis

Wheeling, WV

phillip.glyptis@steptoe-johnson.com 304.230.2332

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