United States District Court, M.D. Pennsylvania
MARIA GARLICK, as Administratrix of the Estate of GEORGE B. GARLICK, III, and in her own right, Plaintiff,
ANADARKO PETROLEUM CORPORATION, ANADARKO ENERGY SERVICES COMPANY, ANADARKO E & P COMPANY LP, and ANADARKO MARCELLUS MIDSTREAM, LLC, Defendants.
MATTHEW W. BRANN, UNITED STATES DISTRICT JUDGE
case is a tragedy in search of a cause of action.
Plaintiff's decedent, George “Bart” Garlick,
died in the dark of night when the water truck he was driving
missed a turn-off, travelled in the wrong direction for
nearly three miles, failed to navigate a curve, and tumbled
down a nearby embankment. As unfortunate as that is, however,
Plaintiff's retrospective efforts to wind the clock back
and discern the true cause of the driver's accident have
proven fruitless, even after five years of litigation.
Without question, I have come to realize that the facts of
this case are as steeped in misfortune as they are shrouded
Plaintiff's efforts seem to rival what futility Erwin
Schrödinger must have felt when he hypothesized long ago
about the paradoxical box that contained his now famously
inconclusive cat. That is to say, the causal thought
experiment that still permeates this case at its twilight,
among other shortcomings, is fatal to its continued vitality.
Because the Plaintiff has failed, as a matter of law, to
adduce sufficient evidence on a number of requisite elements,
I will grant summary judgment in Anadarko's favor.
Otherwise, a trial in this matter would amount to a guessing
game based on pure speculation and naked conjecture-a method
of assigning fault that our judicial system plainly does not
case's shadowy scene was perhaps best set by
Plaintiff's own counsel, David L. Kwass, Esquire, during
his oral argument before the United States Court of Appeals
for the Third Circuit. As Mr. Kwass described:
On May 16, 2012, at 2:20 in the morning, an inexperienced
truck driver driving in the wilderness, in the mountains in
rural Pennsylvania, crashed and died. . . . On this evening,
which was the very first time that Mr. Garlick had been
assigned to drive this particular route, having only three
weeks of experience driving these baby bottle trucks, Mr.
Garlick missed a turn at Beach Creek Mountain Road [and]
continued past the designated route.
decedent was employed as a truck driver by Trans Tech
Logistics, who leased its vehicles to QC Energy Resources.
Am. Compl., ECF No. 59, at ¶ 15; Garlick v. Trans
Tech Logistics, Inc., 636 F. App'x 108, 110 (3d Cir.
2015) (per curiam). QC Energy then contracted with Anadarko
to supply water to natural gas drilling sites. Pl.'s Br.
in Opp'n to Defs.'Mot. for Summ. J., ECF No. 128, at
2 (hereinafter “Pl.'s Br.”). The truck
involved in the accident was owned and maintained at all
times by QC Energy, not Anadarko. Am. Compl. ¶ 16. The
truck driver had no direct employment or contractual
relationship with Anadarko, who was merely a client of one of
his employer's clients.
the assistance of local and state government officials,
Anadarko provided QC Energy with a booklet containing
directions to each of its 48 well pads. Pl.'s Br. at 3.
QC Energy then distributed the booklets to all contracted
Trans Tech Logistic drivers. Id. The routes listed
on the directions led from water sources to the drilling
sites and vice versa. Id. at 2-3. The directions to
the drill site involved in the instant matter appear at
Figure 1 on the following page:
Figure 1. Directions to Drilling
FROM 180, TAKE SNOWSHOE EXIT 147 ONTO HWY 144 NORTH, GO 0.1
TURN LEFT ON HWY 144, GO 3.6 MILES.
TURN RIGHT ON HWY 144, GO 22.2 MILES.
TURN RIGHT ON BEECH CREEK ROAD, GO 5.3 MILES
TURN LEFT ON EAGLETON ROAD, GO 1.8 MILES
TURN LEFT ON DISHPAN HOLLOW ROAD, GO 0.3 MILES
TURN LEFT ON LEASE ROAD, GO 0.2 MILES TO LOCATION ON RIGHT
9-1-1 ADDRESS: 925 EAGLETON ROAD
Anadarko designee explained that in compiling the above
route, the company “would work with any local or
municipal stakeholders to determine the most efficient and
safest route into a facility.” Dep. of Jeffrey Lorson,
ECF No. 128-7, at 80:07-10. Anadarko made no further
promises, representations, or undertakings in relation to
third-party drivers who supplied its sites with water.
Moreover, there is no indication in the record that QC
Energy's contracted drivers were required to follow the
directions that Anadarko supplied; that the directions
constituted anything other than suggested routes compiled by
Anadarko's drilling team with the assistance of local
government authorities; or that the drivers or their
immediate employers were forbidden from supplementing the
directions with additional directional tools, such as maps or
GPS devices. See Id. at 81:10-24.
parties do not dispute that the directions set forth at
Figure 1 were wholly accurate and that the driver,
approximately 2.5 miles before he crashed, missed the
right-hand turn-off onto Beech Creek Road, which turn-off was
clearly listed on the directions sheet that Anadarko had
supplied. Neither is it contested that the road on which the
driver was travelling was a state route and the road that he
would have entered immediately upon making the turn-off was a
Pennsylvania Department of Conservation and Natural Resources
(DCNR) road, both of which were owned and maintained at all
times by the state government, never by Anadarko. Tr. of July
11, 2017 Oral Arg. at 59:01-06 (hereinafter “July 2017
night in question, the driver had only been working for QC
Energy for approximately three weeks. July 2017 Tr. at
21:02-09. In fact, he had no prior experience driving
so-called “baby bottle” trucks, and the record
even reflects that he may have been untruthful about his lack
of prior experience on hiring documents that he supplied to
QC Energy. See ECF No. 124 at 2.
driver began working a 12-hour shift at 6:00 p.m. on May 15,
2012, the night of the accident, in Renovo, Clinton County,
Pennsylvania. Defs.' Br. in Supp. of Summ. J., ECF No.
127, at 8 (hereinafter “Defs.' Br.”). As Mr.
Kwass represented at oral argument before the Third Circuit,
the night in question was the first night on which the driver
had travelled to this particular drilling site. Importantly,
however, the fatal trip was not his first trip to the
drilling site that night. To the contrary, it is undisputed
that at approximately 10:30 p.m. that evening, the driver
successfully traveled from a water source to the very same
drilling site and back to the water source immediately prior
to commencing his fatal trip. Defs.' Br. at 9. It is
believed that the driver did not miss the turn-off during his
first trip or otherwise report any directional difficulties
reaching the drill site at that time. Id. In fact,
at oral argument before this Court, his counsel, Thomas G.
Oakes, II, Esquire, admitted that the odometer readings
showed that no excess mileage was accumulated during the
driver's first trip. July 2017 Tr. at 45:20- 46:01.
approximately 2:20 a.m., on his second trip to the drill site
that night, the driver missed the turn-off onto Beech Creek
Road. Pl.'s Br. at 3. After he missed the turn-off, the
driver continued down State Route 144 in the wrong direction
for nearly three miles. Defs.' Br. at 8. Nothing in the
record suggests that the driver had realized his mistake and
had attempted to turn the truck around. Instead, it appears
that his truck crashed while still travelling in the wrong
direction when its speed and the weight of the water
prevented it from successfully navigating a curve in the
road. Pl.'s Br. at 1. At that time, it is believed that
the truck's brakes failed, the driver lost control of the
truck, and the truck collided with a nearby guardrail.
Id. Unfortunately, the guardrail did not stop the
truck, and the truck toppled down a nearby embankment, at
which point the driver sustained fatal injuries. Id.
that tragedy, the Plaintiff has adduced no evidence
establishing that Anadarko's actions or omissions in any
way caused the driver to miss the turn on his second trip or
to ultimately leave the roadway. As Anadarko has pointed out
in its briefing and at oral argument, on the present record,
its acts or omissions were no more likely to have caused the
driver to miss the turn and crash his truck than: the
driver's own fatigue; distraction by radio chatter; the
darkness or the weather; the driver's misreading or
miscalculating the directions; his own decision to stop
following the directions; top heaviness from sloshing water
within the bed of the truck; distraction by a cell phone or
food; his speeding; mechanical failure of the truck; or an
animal or vehicle passing by or intruding into the
driver's lane. In fact, because the driver was using the
same directions on both trips and because those directions
were accurate, it would appear more likely that some external
cause or chance event not attributable to Anadarko
precipitated the missed turn and eventually, the accident.
more, subsequent events that undoubtedly contributed to the
ultimate crash also complicate Plaintiff's attempt to
show causation. In fact, Plaintiff's own briefing admits
that after the driver departed from the prescribed route,
“the brakes on his QC Energy water tanker failed,
” and he became unable to navigate turns. Pl.'s Br.
at 1. The amended complaint, filed in November 2013 confirmed
that the driver “experienced brake failure and lost
directional control of the truck.” Am. Compl., ECF No.
59, at ¶ 17. Based on those purported facts, the amended
complaint alleged that the QC Defendants “were
negligent [in] failing to perform routine maintenance on the
subject truck”; in “failing to provide [the
driver] with a truck that was in ‘fit for service'
condition”; and in “failing to properly train
[the driver] to operate the subject truck safely in the
weather and road conditions which existed at the time of the
accident.” Id. ¶ 20.
November 25, 2014, I adopted a Report and Recommendation by
United States Magistrate Judge William I. Arbuckle, III,
which granted summary judgment in favor of QC Energy on the
ground that it was entitled to immunity under the
Pennsylvania Worker's Compensation Act as the
driver's statutory employer. 2014 WL 11395012 (adopting
2014 WL 11395241 (M.D. Pa. Sept. 29, 2014)). That Report and
Recommendation also granted summary judgment in favor of
Anadarko on the sole ground that Anadarko did not owe the
driver a duty under either § 323 (Negligent Performance
of an Undertaking to Render Services) or § 343(Dangerous
Conditions Known or Discoverable by Possessor) of the
Restatement (Second) of Torts. At that time, Anadarko had not
moved for summary judgment on the basis of causation, and the
§ 323 issue was itself admittedly a tertiary issue in
the parties' appellate briefing.
December 18, 2015, in a non-precedential per curiam opinion,
the Third Circuit affirmed my grant of summary judgment in
favor of QC Energy but reversed as to Anadarko, remanding the
case for further proceedings before this Court. Garlick
v. Trans Tech Logistics, Inc., 636 F. App'x 108 (3d
Cir. 2015). Anadarko has filed a motion for summary judgment
in which it argues that, as a matter of law, Plaintiff has
not shown that Anadarko breached a duty of reasonable care
that proximately caused the driver to depart from the
directions and crash his water truck. I received briefing and
conducted oral argument on the motion. Because the applicable
law, as it would appear in any jury charge, requires that
judgment be entered in favor of Anadarko, that motion is
granted consistent with the foregoing discussion.
of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or
defenses, and we think it should be interpreted in a way that
allows it to accomplish this purpose.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary
judgment is appropriate where “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Facts that could alter the outcome
are ‘material facts, ' and disputes are
‘genuine' if evidence exists from which a rational
person could conclude that the position of the person with
the burden of proof on the disputed issue is correct.”
Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir.
1993) (Hutchinson, J.) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) and Celotex, 477
U.S. at 322).
defendant meets this standard when there is an absence of
evidence that rationally supports the plaintiff's
case.” Clark, 9 F.3d at 326. “A
plaintiff, on the other hand, must point to admissible
evidence that would be sufficient to show all elements of a
prima facie case under applicable substantive
inquiry involved in a ruling on a motion for summary judgment
or for a directed verdict necessarily implicates the
substantive evidentiary standard of proof that would apply at
the trial on the merits.” Liberty Lobby, Inc.,
477 U.S. at 252. Thus, “[i]f the defendant in a
run-of-the-mill civil case moves for summary judgment or for
a directed verdict based on the lack of proof of a material
fact, the judge must ask himself not whether he thinks the
evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented.” Id.
“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.” Id. “The
judge's inquiry, therefore, unavoidably asks . . .
‘whether there is [evidence] upon which a jury can
properly proceed to find a verdict for the party producing
it, upon whom the onus of proof is imposed.'”
Id. (quoting Schuylkill & Dauphin Imp. Co.
v. Munson, 81 U.S. 442, 447 (1871)). Summary judgment
therefore is “where the rubber meets the road”
for a plaintiff, as the evidentiary record at trial, by rule,
will typically never surpass that which was compiled during
the course of discovery. “In this respect, summary
judgment is essentially ‘put up or shut up' time
for the non-moving party.” Berckeley Inv. Grp.,
Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)
party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323
(internal quotations omitted). “[R]egardless of whether
the moving party accompanies its summary judgment motion with
affidavits, the motion may, and should, be granted so long as
whatever is before the district court demonstrates that the
standard for the entry of summary judgment, as set forth in
Rule 56(c), is satisfied.” Id.
the movant properly supports his motion, the nonmoving party,
to avoid summary judgment, must answer by setting forth
“genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be
resolved in favor of either party.” Liberty
Lobby, 477 U.S. at 250. For movants and nonmovants
alike, the assertion “that a fact cannot be or is
genuinely disputed” must be supported by: (i)
“citing to particular parts of materials in the
record” that go beyond “mere allegations”;
(ii) “showing that the materials cited do not establish
the absence or presence of a genuine dispute”; or (iii)
“showing . . . that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts
of record which would contradict the facts identified by the
movant.'” Port Auth. of N.Y. and N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003)
(Weis, J.). Moreover, “[i]f a party fails to properly
support an assertion of fact or fails to properly address
another party's assertion of fact as required by Rule
56(c), the court may . . . consider the fact undisputed for
purposes of the motion.” Fed.R.Civ.P. 56(e)(2). On
motion for summary judgment, “[t]he court need consider
only the cited materials, but it may consider other materials
in the record.” Fed.R.Civ.P. 56(c)(3).
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Liberty Lobby, 477 U.S. at 249.
“[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.” Id.
“If the evidence is merely colorable . . . or is not
significantly probative, summary judgment may be
granted.” Id. at 249- 50 (internal citations
appeal and before this Court, the Plaintiff has attempted to
divorce § 323 from principles of ordinary
negligence-taking certain elements of each cause of action
when they most suit her, while willfully forgetting other
parts. In particular, § 323 requires both that the
defendant undertake to render a particular service to the
plaintiff and that the plaintiff's injuries be caused by
its reliance on the defendant's provision of that
only undertaking here-to the extent that it even can be
called that- was Anadarko's providing directions to QC
Energy. Anadarko undertook to provide no further assurances,
and the driver here could never have, as § 323 requires,
relied upon precautions that Anadarko never previously
undertook to supply him. Thus, to the extent that Plaintiff
argues that Anadarko should have provided more than accurate
directions alone, that contention falls well beyond §
§ 323, like ordinary negligence, imposes a duty of
reasonable care and nothing more. When asked at oral argument
how exactly Anadarko breached a duty of reasonable care if
its directions were accurate and were sufficient to guide the
driver to the site on one occasion, Mr. Oakes, following the
lead of Mr. Kwass's oral argument before the Third
Circuit, answered that Anadarko's duty required it to
install lighting and signage on a state-owned road and place
a flagman at the intersection in the dark of night. July 2017
Tr. at 16:05- 25. That answer not only conflicts with decades
of established Pennsylvania law that reserves to the state
the obligation of maintaining state-owned roads, but it also
would effectively impose a duty of absolute care on Anadarko.
to recognize those shortcomings, Plaintiff's counsel
raised a novel, unpled theory for the first time during oral
argument before the Third Circuit. There, Mr. Kwass argued
that § 323 required Anadarko not only to erect signs and
lights but to provide “the safest route
possible.” Plaintiff has never pled such a grandiose
theory-and for good reason. It would have been dismissed at
the earliest of stages. Neither ordinary negligence nor
§ 323 imposes strict liability when an injury occurs,
and that is precisely what this novel theory seeks. Further,
because discovery has never been conducted on such a theory,
it lacks any supporting evidence whatsoever to survive the
summary judgment stage.
all potential sources of negligence involved here require
that a defendant's acts or omissions be the proximate
cause of the plaintiff's injuries. As will be
demonstrated more fully below, Plaintiff's bare-bones
allegations at the summary judgment stage fall well short of
satisfying that element as a matter of law. Indeed, not only
is it unclear that Anadarko's alleged omissions in any
way contributed to the missed turn and the ultimate crash,
the record is littered with a number of intervening causes,
including driver error and brake failure, that destroy
whatever miniscule causal showing the Plaintiff has made.
such, I will grant Anadarko's motion for summary judgment
based on each of the independent grounds that follow.
Anadarko Is Entitled To Summary Judgment As A Matter Of Law
Because Even Assuming That § 323 Applies To This Case,
And Its Application Is Dubious, Plaintiff Has Not Adduced
Sufficient Facts Showing That Anadarko Breached A Duty Of
Reasonable Care Under That Provision Or Otherwise.
necessary elements to maintain an action in negligence are: a
duty or obligation recognized by the law, requiring the actor
to conform to a certain standard of conduct; a failure to
conform to the standard required; a causal connection between
the conduct and the resulting injury and actual loss or
damage resulting to the interests of another.”
Morena v. S. Hills Health Sys., 501 Pa. 634, 462
A.2d 680, 684 n.5 (1983).
question of whether a duty exists is purely a question of
law.” Brown v. Com. Dep't of Transp., 11
A.3d 1054, 1056 (Pa. Commw. Ct. 2011). Section 323 of the
Second Restatement is one potential source of a duty in tort
that Pennsylvania courts have adopted. Morena, 462
A.2d at 684. Because it requires the defendant to assume an
undertaking, § 323 was referred to in early decisions as
the “Good Samaritan” provision. Filter v.
McCabe, 733 A.2d 1274, 1277 (Pa. Super. Ct. 1999).
Although it may apply to private transactions for