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Murphy v. Excel Site Rentals LLC

United States District Court, M.D. Pennsylvania

July 26, 2019




         I. BACKGROUND

         Plaintiffs, spouses Kody and Kristan Murphy, are pursuing a negligence action[1] against Defendant Excel Site Rentals, LLC. In their amended complaint[2], Plaintiffs are seeking punitive damages based on the circumstances surrounding a November 10, 2017 work-site accident that injured Kody Murphy.

         Excel has moved for summary judgment.[3] It first asks the Court to dismiss the action in its entirety, asserting that the Commonwealth of Pennsylvania's hoary ‘assumption of the risk' doctrine bars this action. In the alternative, if the Court does not dismiss the action in its entirety, Excel has moved for partial summary judgment seeking to dismiss the demand for punitive damages.

         The motion has been fully briefed and is now ripe for disposition; for the reasons that follow, and on both bases for relief, it is denied.


         A. Standard of Review

         I begin my analysis with the standard of review which undergirds summary judgment. “One 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.”[4]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.”[5] “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.”[6] “A defendant meets this standard when there is an absence of evidence that rationally supports the plaintiff's case.”[7] “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 law.”[8]

         “The 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.”[9] Thus, “if 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.”[10]“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.”[11] “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.'”[12]The evidentiary record at trial, by rule, will typically never surpass that which was compiled during the course of discovery.

         “A 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.”[13] “Regardless 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.”[14]

         Where 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.”[15] 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.”[16]

         “When 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.'”[17] Moreover, “if 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.”[18] On a motion for summary judgment, “the court need consider only the cited materials, but it may consider other materials in the record.”[19]

         Finally, “at 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.”[20] “There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”[21] “If the evidence is merely colorable . . . or is not significantly probative, summary judgment may be granted.”[22]

         B. Undisputed Facts

         With that standard outlining the Court's framework for review, I now turn to the undisputed facts of this matter.

         Kody Murphy was employed by Consolidated Well Services in Texas. He volunteered to travel to Pennsylvania to work on the Chief Oil & Gas Company work-site identified as the ‘Yoder 2H pad' near Granville Summit, Bradford County, Pennsylvania. Excel Site Rentals, LLC, hereinafter “Excel, ” was also subcontracted by Chief Oil & Gas Company to perform work at the Yoder 2H pad. “Excel provided the completion rig, swivel unit, and other related equipment as well as personnel to operate and maintain its equipment on the Yoder 2H pad well site.”[23]

         Consolidated Well Services' role as a subcontractor to Chief Oil & Gas was “to provide snubbing as well as well pressure control services at the Yoder 2H pad.”[24] Murphy worked as a snubbing operator for Consolidated Well Services. He only worked at the Yoder 2H pad work site on two dates, the date of the injury, November 10, 2017, and the previous day. For the two days Murphy worked at the Yoder 2H pad, his Consolidated Well Services supervisor was Josh Pippen.

         1. Deposition Testimony of Kody Murphy

         On November 9, 2017, Murphy's first day on the job site at the Yoder 2H pad, he worked a 12-hour shift, from 7:00 a.m. to 7:00 p.m. Just prior to the night shift change, he noticed the swivel unit spin.[25] That was the first time that Mr. Murphy noticed that something was “amiss.”[26]

         When asked during his deposition ‘what he did with that knowledge,' he explained that he discussed “it” with another Consolidated Well Services employee, Erik Skinner, and also “passed on the knowledge to the guys coming on.”[27] Murphy also notified Patrick Carnahan, an Excel employee, who was also the “closest supervisor, ” as well as to Murphy's immediate supervisor, Josh Pippen.[28]

         Murphy continued: “Me and Skinner throughout that day had relayed, you know, information back and forth and kept telling Carnahan, told Pippen, and then from them, it's just kind of if it doesn't move from them, it's either possibly losing your work at that location or your job, period, or try to work as safety [sic] as possible. And having a family, I was trying to keep my job, as well as be safe.”[29]Murphy explained that Carnahan “didn't do anything about it, ” and Pippen: “said to see if it's still doing it in the morning, if night shift had any problems, which night shift didn't give us any hand-over notes about their operations. They just kind of came on and switched out, and then when we first saw it again, we brought it - me and Skinner both brought it up to Carnahan again.”[30]

         Murphy continued explaining: “At that point, you know, it could have been just from rigging it up. And we had come back the next day, and it had started spinning on us again while we were doing the drill outs, and it was inherently in neutral.”[31] When asked ‘why it would continue spinning,' he explained, “Failure of components. If it's - if it's in neutral, it's supposed to be dead neutral. You know, the only other answer is there's a failure in components either in the controls or in the spool itself.”[32] When asked: “Is that in and of itself a dangerous condition?” He replied, “Yes, sir.”[33]

         On November 10, 2017, Murphy was working the same twelve-hour shift as the prior day. Murphy spoke to the same Consolidated Well Services employee who had relieved him the previous evening and to whom Murphy expressed his concerns about the ‘spin out.' That employee did not have any problems with the equipment on the overnight shift.

         On the day of the incident, Murphy was alternating working in the snubbing basket with Erik Skinner. While in the snubbing basket, Patrick Carnahan was operating the swivel unit. Around 3:00 p.m. that afternoon, while wearing work gloves supplied by Consolidated Well Services, Murphy was “up” in the basket for what he remembers to likely have been the third time that day “making swivel connections”[34] when his left hand got stuck in the equipment. He was spun around in the air twice by the equipment before he fell to the floor of the basket. Murphy lost his fingertip and broke both of his arms.

         Once back on the ground, Josh Pippin was the first to reach Murphy and drove him to the nearest hospital. Murphy underwent several operations in Pennsylvania and continued to see an orthopedic specialist upon his return to Texas. At the time of his deposition, he would see his physician monthly, but no longer required the use of pain medications.

         Murphy testified that “anyone onsite, ” had the authority to stop the work because of a dangerous condition.[35] He continued: “It can literally be anyone coming into contact onto that site. The security guard from the booth could say, ‘Hey, I see something wrong,' and come up there and shut it down, but you have to go through your necessary supervisors to get that type--”[36]

         Murphy was also asked if he could ‘get in trouble for bringing that up.'[37] He responded that: “It's kind of a hit and miss thing. There's a rule - kind of an unspoken rule in the oil field to not stop operations, but that didn't stop me from bringing it up to Pat Carnahan several times.”[38] He testified that employees who complain about potential problems and waste operating time typically would either get fired or moved to a different rig.[39]

         Erik Skinner had also complained to Carnahan about the equipment. Murphy elaborated that Carnahan did not act on Skinner's complaints either, which created an unsafe work environment for both men. Murphy testified that Carnahan “brushed it off;”[40] and that “from what Erik Skinner said, he brushed him off pretty harshly that day, and that's what prompted us to go back to Pippin again, but I don't know if Pippin was going to going to act on it or not.”[41] Murphy continued, “the first day [Carnahan] said, ‘We always get crappy equipment.'”[42] “At that point in time, I really couldn't tell if it was a fluke or not, so I took Josh's advice and watched it again the next day. It started doing it again, and we started bringing it up again.”[43]

         Murphy further testified that he only witnessed problems with the equipment on November 9, 2017. He explained:

It wasn't until the very end of my shift, that first one, and I had went to go put my hand to push it over…and it had started rolling after I had put my hand on it. So I pulled away, and I waited until it stopped, watched Carnahan adjust levels. He had sped it up and then put it back into neutral. It stopped, so pushed it over. Nothing happened. Sat it in there, and that was the first time that day I had saw it.
The second time that it happened it was the next time I had went up right before I told Josh Pippen about it again, and I had - doing the same motion, pushing over it had rolled out of my hand and swung back, and I yelled at Carnahan that we needed to fix this, and he said, ‘Well, when I get my bag oil,' and then continued on. And about that time, as soon as I got it made up, Erik Skinner had come up, and I went down, and that's when I had the long conversation with Pippen about it.[44]

         When asked what he believed to have caused the accident, Murphy testified that it was “failure to shut down the job because if they would have listened to our pleas about the equipment, it would have never happened.”[45]

         2. Deposition Testimony of Patrick Carnahan

         At the time of Murphy's injury, Patrick Carnahan was working as a rig operator for Excel.[46] He never received any training from Excel to perform his job as a rig operator;[47] the only training he received from Excel was “first aid, CPR, forklift, manlift, and that was it.”[48]

         Carnahan testified that he was aware of the Employee Safety Handbook, but had never gone “through it thoroughly.”[49] However, he knew that according to the handbook, he was to ‘be looking for unsafe conditions at all times,' and all employees were responsible for reporting unsafe working conditions.[50] He was not the supervisor at the time of the injury; the supervisor was not on the job site at the time of the injury.[51] When asked who was in charge of the job site that day since the supervisor wasn't on site, Carnahan replied, as follows:

Q: Okay. Who was the lead man on the job at the time of the injury for your company?
A: It would be myself.
Q: All right. So were you the supervisor on the job at the time of the incident then?
A: I ain't taking that responsibility.[52]

         Carnahan had seven years' experience with the type of swivel unit that caused Murphy's injuries.[53] Excel never provided Carnahan with a user, operator, repair, maintenance, or troubleshooting manual about the swivel unit.[54] He testified that Excel had a “safety guy” who was responsible for ensuring the equipment is safe for use, explaining: “Our safety guy comes out, and he does his job. I don't know what he does, but that's his job to go over everything…It's not an everyday inspection. It's whenever he comes out, he does rig inspections and equipment inspection.”[55] However, on November 10, 2017, neither Carnahan, nor any other employee of Excel, checked the operational safety of the swivel unit.[56]Carnahan did not “recall” Erik Skinner and Murphy advising him that the swivel unit was turning when it should have remained stationary.[57] In fact, Carnahan attempted to minimize any evidence of malfunction by refusing to use the word ‘turning' and instead describing the unit as ‘creeping.'[58]

         3. Deposition Testimony of Erik Skinner

         Erik Skinner testified that he did indeed tell Patrick Carnahan that the swivel was malfunctioning, stating: “I said, We need to shut this down, get this fixed. His answer was, We need to get this done because we have another well we have to do.”[59] Skinner testified that not only did he ‘make it clear' to Carnahan that there was a potential equipment malfunction, but that Carnahan “could, obviously, see the same thing.”[60] “Basically, the answer was, You guys can either do it or we'll get somebody else that will.”[61] “I said something to him about it at least four or five times…He would either ask about the bag oil, or Don't worry about it, quit being a pussy…You know, Just get it done.”[62]

         Skinner left the basket “pretty pissed” because Carnahan knew the unit was malfunctioning before Murphy was injured, yet refused to shut down ...

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