Opinion
Civil Action No. 99-430 Section "N".
September 13, 2000.
ORDER AND REASONS
Before the Court are Defendant Kerr-McGee's (1) Motion for Summary Judgment and Alternative Motion for Partial Summary Judgment and (2) Motion in Limine to Strike Expert Testimony. For the following reasons, defendant's Motion for Summary Judgment is GRANTED and its Motion is Limirie is DENIED AS MOOT.
BACKGROUND
In April 1998, Oryx Energy Company ("Oryx") hired Cardinal Services, Inc. ("Cardinal") to plug and abandon its wells on a platform off the Louisiana coast. Cardinal, an independent contractor, would control, direct and maintain responsibility for the project. Oryx only reserved the right to observe and inspect Cardinal's work to ensure its satisfactory completion. Plaintiff Rusty Roberts, a Cardinal employee, served as the pump operator for this job.
On May 21, 1998, while Cardinal employees were perforating a well on Oryx's platform, the perforation gun discharged while Roberts was standing next to it. Roberts has sued Cardinal and Kerr-McGee Corporation ("Kerr-McGee"), Oryx's successor in interest, for damages sustained in this explosion. Kerr-McGee now moves the Court to dismiss all the claims Roberts filed against it. In addition, Kerr-McGee moves the Court to exclude the expert testimony of several of Roberts' treating physicians.
I. MOTION FOR SUMMARY JUDGMENT A. STANDARD OF REVIEW
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324. Factual controversies are to be resolved in favor of the nonmoving party. See Little v. Liqiuid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
B. LAW AND ANALYSIS
Roberts seeks damages under theories of premises liability pursuant to Louisiana Civil Code articles 2317.1 and 2322, negligence pursuant to article 2315, and strict liability pursuant to article 667. Kerr-McGee moves for summary judgment on all these claims.
1. Premises Liability
Kerr-McGee first moves to dismiss Roberts' premises liability claims brought under Louisiana Civil Code arlicles 2317.1 and 2322. Roberts does not oppose defendant's motion for summary judgment on these issues. See Mem. Opp. at I. Accordingly, Kerr-McGee's motion for summary judgment on Roberts' premises liability claims is GRANTED.
2. Negligence
Roberts also asserts that Kerr-McGee is liable in negligence for his injuries under Louisiana Civil Code article 2315. However, a principal such as Oryx cannot be held liable for injuries resulting from the allegedly negligent acts of an independent contractor such as Cardinal, "unless (1) the liability arises from ultrahazardous activities performed by the contractor on behalf of the principal or (2) the principal retains operational control over the contractor's acts or expressly or impliedly authorizes those acts." Coulter v. Texaco. Inc., 117 F.3d 909, 911-12 (5th Cir. 1997). Roberts admits that Oryx did not maintain operational control over Cardinal's crew. Therefore, Kerr-McGee is only liable if perforation is an ultrahazardous activity. Whether an activity qualifies as ultrahazardous in Louisiana is a question of law. See Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 550 (5th Cir. 1987),
A wireline perforating gun uses explosive charges to blast holes in the sides of an oil well. The wireline crew attaches the gun to the end of a long cable, the wireline, and lowers the gun into the well. When the gun reaches the desired depth, a blasting cap detonates charges which perforate the well. Roberts was injured when the blasting cap accidentally detonated on the platform.
The Fifth Circuit holds that an activity is ultrahazardous if (1) the activity relates to an immovable, (2) the activity itself causes the injury and the defendant is directly engaged in the activity, and (3) the activity does not require the substandard conduct of a third party to cause injury. See Perkins v. F.I.E. Corp., 762 F.2d 1250, 1267-68 (5th Cir. 1985).
The first two prongs of the this test are satisfied in the case at bar. First, Kerr-McGee admits that wireline perforation relates to an immovable. Secondly, Roberts was directly injured by the accidental firing of a perforation gun. Furthermore, since perforation is an indispensable element of Kerr-McGee's well-drilling business, the Court finds that Kerr-McGee is directly engaged in the activity that allegedly caused Roberts' injury. See Bergeron v. Blake Drilling and Workover Co., Inc., 599 So.2d 827, 833 (La.App. I Cir. 3/31/1992) (stating that a "well cannot produce oil or gas unless it is perforated" and "perforation is an internal and indispensable element of every well"); Anderson-Pritchard Oil Corp. v. Parker, 245 F.2d 831, 835 (10th Cir. 1957) (stating that perforation of the casing is a "common practice during the drilling of an oil and gas well . . .").
The determination of whether wireline perforation is an ultrahazardous activity depends on the third factor of the test: whether it requires "the substandard conduct of a third party to cause injury." Perkins, 762 F.2d at 1268. In other words, wireline perforation is ultrahazardous if it "can cause injury to others, even when conducted with the greatest prudence and care."Perkins, 762 F.2d at 1268, (quoting Kent v. Gulf States Utilities Co., 418 So.2d 493, 498 (La. 1982)). See also O'Neal v. Int'l Paper Co., 715 F.2d 199, 202 (5th Cir. 1983) (holding that ultrahazardous activities present "a risk of harm that cannot be eliminated through the exercise of due care").
Roberts cites Bergeron v. Blake Drilling and Workover Co., Inc., 599 So.2d 827, 839 (La.App. 1 Cir. 3/31/1992) for the proposition that wireline perforation is an ultrahazardous activity because "there is a period of time during perforating when safety procedures are of no moment." The court ruled that the "uncertainty of the safety procedures combined with the fact that the intended use of the charges of the perforating gun is to explode, leads us to no other conclusion but that perforating is an intrinsically and inherently dangerous work." Id.
However, the Bergeron court did not explicitly find that wireline perforation is ultrahazardous. The Bergeron court ultimately held that "even if one found that perforating was not ultrahazardous, a finding that perforating is an inherently and intrinsically dangerous work is unavoidable." Id. at 839. By holding Kerr-McGee liable under article 2315 for "inherently dangerous" activity, this Court would be expanding the Louisiana Supreme Court's policy behind ultrahazardous activity as announced in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La. 1982). In Kent, the Louisiana Supreme Court held that the ultrahazardous activity classification "was created for the rare instances in which the activity can cause injury to others, even when conducted with the greatest prudence and care." Id. at 498. This Court does not find that an "inherently dangerous" activity fits within the "special category" of ultrahazardous liability.Id.
Furthermore, holding that perforation is ultrahazardous conflicts with the Fifth Circuit's determination that drilling operations are not ultrahazardous. See Ainsworth, 829 F.2d at 550. see also Crosby v. Texaco Inc., 1994 WL 495786,*1(E.D.La.) (citing Ainsworth for the proposition that drilling operations are not ultrahazardous). Since perforation has long been an "internal and indispensable element" of drilling for oil, Bergeron, 599 So.2d at 840, the Court finds that perforation is encompassed within the Fifth Circuit's definition of "drilling operations" for the purpose of determining an ultrahazardous activity.
Finally, an ultrahazardous activity is one that "by its definition cannot be conducted safely." Touchstone v. G.B.O. Corp., 596 F. Supp. 805, 814 (E.D.La. 1984)(Sear, J.). As an essential component of the drilling process, wireline perforation is a "common activity in the oil field industry, occurring more than 100 times a day on a worldwide basis. Given the number of perforating operations, accidents are rare." Bergeron, 599 So.2d at 833. In light of this information. this Court cannot accept the Bergeron court's conclusion that "perforation is an ultrahazardous activity and/or an intrinsically dangerous activity" that cannot be performed safely. Id. Considering the frequency of the activity, the scarcity of accidents, and Roberts' own allegation that Cardinal's negligence caused his injury, the Court finds that wireline perforation can indeed be done safely.
Since the Fifth Circuit has held that drilling operations are not ultrahazardous, since Louisiana courts have found that perforation is a routine part of the drilling process, and since this Court has determined that perforation can be performed safely, the Court finds that perforation is not an ultrahazardous activity. Accordingly, Kerr-McGee's Motion for Summary Judgment on Roberts' La. Civ. Code art. 2315 claim is GRANTED.
3. Strict Liability
Finally, Roberts alleges that Kerr-McGee is strictly liable under Article 667 of the Louisiana Civil Code, which provides that a "proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity." LA. Civ. CODE ANN. art. 667 (West 1980). As explained above, the Court finds that wireline perforation is not an ultrahazardous activity. The Fifth Circuit in Perkins held that the "Louisiana doctrine of ultrahazardous activities has its roots in arts. 667-669 of the Civil Code" and that ultrahazardous liability under art. 2315 is analogous to that under art. 667. Perkins, 762 F.2d at 1266. In light of this holding, the Court finds that wireline perforation is not ultrahazardous within the meaning of art. 667. Accordingly, Kerr-McGee's motion for summary judgment on Roberts' claim under La. Civ. Code art. 667 is GRANTED.
II. MOTION IN LIMINE
Kerr-McGee also moves to strike the testimony of Roberts' treating physicians, whom Roberts has listed as expert witnesses. Since the Court has dismissed all of Roberts' claims against Kerr-McGee. Kerr-McGee's Motion in Limine is DENIED AS MOOT.
CONCLUSION
IT IS ORDERED that
(1) defendant Kerr-McGee's Motion for Summary Judgment on all of plaintiff Rusty Roberts' claims is GRANTED; and
(2) defendant Kerr-McGee's Motion in Limine to Strike Expert Testimony is DENIED AS MOOT.
New Orleans, Louisiana, this 13 day of September, 2000.