Energy-Related Litigation: Personal Injury

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1 Energy-Related Litigation: Personal Injury FOLLOW STEPTOE & JOHNSON ON TWITTER: ALSO FIND US ON Steptoe & Johnson PLLC. All Rights Reserved.

2 Keynote Speakers W. Randolph Fife Charleston, WV Phillip T. Glyptis Wheeling, WV

3 Energy-Related Litigation: Personal Injury 2013 Steptoe & Johnson PLLC. All Rights Reserved.

4 Firm Study The expansion of oil and gas work AND The increasing number of legal disputes

5 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 and Defendants

6 Elements of Negligence Action To establish liability in a negligence action, Plaintiff must prove: (a) Duty (b) Breach (c) Proximate Cause (d) Damages Simply Put: Reasonable Person Standard!

7 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

8 Gross Negligence Reckless and Wanton conduct Could amount to additional damages

9 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 or procedures

10 Liability of Those On The Job Site Property Owners or Occupier of Land: Duty based on: (1) Relationship (2) Knowledge Or (3) Based on status of the claimant

11 Different Status of Claimant 3 general roles: Trespasser Licensee Invitee Legal status may change

12 OH/PA/WV - Trespasser No authority to enter or remain on land! Duty not to willfully or purposefully injure!

13 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 Failure to act reasonably to eliminate danger

14 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 Magnitude of Burden To Guard Against Injury

15 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

16 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

17 Ohio A construction site is inherently dangerous Primary responsibility on: Subcontractor NOT General Contractor or Owner

18 Independent Contractors Employee or independent contractor? Depends on Amount of Control! OH: Active participation required

19 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: No Recovery if negligence is 50%

20 Ohio Joint and Several Liability If 2 or more persons are liable: if 50% on 1 defendant then liable for all and other for % share if < 50% on 1 defendant where intentional tort than liable for all

21 Pennsylvania Joint and Several Liability If 2 or more persons are liable: 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

22 West Virginia Joint and Several Liability For defendants who liability is 30% or less, only liable for % of damages.

23 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

24 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

25 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 6) Encouraging good faith efforts at settlement

26 Ohio Statute of Limitations Type of Claim Period Authority Bodily injury 2 years R. C Injury to personal property 2 years R. C Wrongful death 2 years R. C Employer Intentional Tort 2 years R. C Contracts in writing 8 years R. C Contracts not in writing 6 years R. C Trespass or taking or detaining of property 4 years R. C

27 Pennsylvania Statute of Limitations Type of Claim Period Authority Bodily injury 2 years 13 Pa.C.S Injury to personal property 2 years 13 Pa.C.S Wrongful death or taking or detaining of personal property 2 years 13 Pa.C.S Trespass upon real property 4 years 13 Pa.C.S Contracts in writing 4 years 13 Pa.C.S Contracts not in writing 4 years 13 Pa.C.S. 5525

28 West Virginia Statute of Limitations Type of Claim Bodily injury Injury to personal property Wrongful death Employer Intentional Tort Contracts in writing Contracts not in writing Period 2 years 2 years 2 years 2 years 10 years 5 years

29 Cross-Claims Express Indemnity: Based on written agreement Implied: Arising out of relationship of parties

30 Anti-Indemnity Provisions OH: Can t make someone else assume your own negligence! (R. C ) See also Ohio Rev. Code Ann (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.

31 Nuisance Claims Interferes with the use or enjoyment of land. 1) Private nuisance - unreasonable interference 2) Public nuisance - broader harm to the public Hydraulic Fracturing?

32 Ohio Nuisance Claims Cease and desist Standard is Reasonableness Factors include: Location and Character of the property

33 Pennsylvania Nuisance Claims Unreasonable, Unwarrantable, or Unlawful Use To the right of another, or the public Producing annoyance, inconvenience, or discomfort Law will presume a damage

34 West Virginia Nuisance Claims Noxious odors Poor air quality Water pollution Flash flooding Noise Blasting

35 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 trespass thereto

36 Damages for Trespass Depends on whether: Physical subsurface trespass Temporary and Permanent damages Taking of minerals Good or Bad faith

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

38 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 Serious Injury or Death

39 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 Section 301(c)(1), 77 P.S. 411

40 Ultra-Hazardous Activities Strict liability for blasting, oil drilling and other dangerous but beneficial enterprises.

41 Ultra-Hazardous Activities Based on abnormal danger of the activity 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

42 Ultra-Hazardous Activities OH: Not determined PA: Fact-Intensive WV: Not determined

43 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 jurisdictions in which you operate

44 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 sure you have covered all risks

45 Thank You! Randy Fife Charleston, WV Phillip Glyptis Wheeling, WV

46 Material Disclaimer These materials are public information and have been prepared solely for educational purposes to contribute to the understanding of energy and oil and gas law. These materials reflect only the personal views of the authors and are not individualized legal advice. It is understood that each case is factspecific, and that the appropriate solution in any case will vary. Therefore, these materials may or may not be relevant to any particular situation. Thus, the authors and Steptoe & Johnson PLLC cannot be bound either philosophically or as representatives of their various present and future clients to the comments expressed in these materials. The presentation of these materials does not establish any form of attorney-client relationship with the authors or Steptoe & Johnson PLLC. While every attempt was made to insure that these materials are accurate, errors or omissions may be contained therein, for which any liability is disclaimed.

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