Parkison v. Halliburton Energy Services Inc et al

Filing 90

ORDER granting 76 Motion for Partial Summary Judgment. Parkison's claim for punitive damages is dismissed with prejudice. Signed by Judge D. P. Marshall Jr. on 12/16/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CLINTON PARKISON
v.

PLAINTIFF
No. 4:11-cv-265-DPM

CHESAPEAKE ENERGY CORP.;
CHESAPEAKE OPERATING INC.:
CHESAPEAKE MIDSTREAM OPERATING
LLC; CHESAPEAKE MIDSTREAM GAS
SERVICES LLC; CHESAPEAKE EXPLORATION
LLC; CHESAPEAKE ENERGY MARKETING INC.;
GREAT PLAINS OILFIELD RENTAL LLC; and JOHN
DOE, 1-10
EAGLE PRECISION PRODUCTS, Employer and
ARGONAUT INSURANCE CO. Carrier

DEFENDANTS

INTERVENORS

ORDER
Parkison worked on large" gas buster" tanks that are owned, installed,
and maintained by the Defendants. The tanks are used at natural gas well
sites to store hydraulic fracturing fluids. While descending a tank's staircase,
Parkison leaned against a safety railing that he thought was secure, but which
was missing securing pins. The railing gave way; Parkison fell; and he was
severely injured. He sues alleging negligence. He also asks for punitive
damages, saying Defendants recklessly disregarded the dangers in allowing
loose railings with missing pins on the tanks.
summary judgment on the punitives.

Defendants seek partial

Parkison can recover punitive damages if he has offered clear and
convincing evidence that Defendants' failure to secure the railing was
malicious or so reckless in the face of danger that a reasonable juror could
infer malice. ARK. CODE ANN. §§ 16-55-206 & 16-55-207. This bar is high.
Negligence, no matter how gross, doesn't clear it. In re Aircraft Accident at
Little Rock, Arkansas on June 1, 1999, 351 F.3d 874, 877 (8th Cir. 2003). And the

Court must "view the evidence presented through the prism of the
substantive evidentiary burden." Anderson v . Liberty Lobby, Inc.,477 U.S. 242,
254 (1986). Parkison doesn't argue that Defendants intended his injury. So
the fighting issues are whether Defendants "knew or ought to have known ...
that [their] conduct would naturally or probably result in injury[,]" and they
acted (or failed to act) nonetheless. Bayer Cropscience LP v. Schafer, 2011 Ark.
518 at *21-22, 385 S.W.3d 822, 836 (2011). The issues come down to what
Defendants knew, or should have known, about the pins and the railings
before Parkison's accident. The Court takes the disputed facts in Parkison's
favor. In re Aircraft Accident, 351 F.3d at 876.
No evidence exists that Defendants knew that the railing Parkison
leaned against was not secured. Nothing had happened at the site, for

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example, to alert anyone that the pins were missing or that the railing was
wobbly. This is not a case like D'Arbonne, where the company sent the
logging truck out on the road after the driver had warned he was having
trouble holding the vehicle on the road and the truck needed repairs.
D'Arbonne Construction Co., Inc. v. Foster, 354 Ark. 304, 309, 123 S.W.3d 894,

898-99 (2003). Nor are the circumstances like Loudermill, where Dow had
known for decades that it was routinely and regularly exposing its employees
to hazardous waste. Loudermill v. Dow Chemical Co., 863 F.2d 566,571 (8th Cir.
1988). None of the Defendants knew that, as one witness put it, this gas
buster tank had" a fake rail"- a railing in place without securing pins. NQ 854 at 26.

Should they have known? Defendants acknowledge that all railings
should be secured and that this accident was preventable. NQ 85-1 at 52.
Everyone recognized that people could get hurt if a railing was not
functioning as a safe hedge. NQ 85-4 at 25-26. No similar accident, though,
had happened before at any of their job sites. NQ 77 at 3. Parkison emphasizes
the testimony from a Chesapeake foreman, Glen Wolford: at safety meetings
"there's always talk about handrails, there has been for years .... Handrails

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have been an issue forever, anywhere, and so it's always been a topic before
this and after this incident."

NQ 85-5 at 16.

It's unclear who had

responsibility, before the accident happened, to install and inspect the railing.
Express Energy Services delivered the tank to the well site; Great Plains
Oilfield Rental owned the tank; Cheseapeake Energy Corp. and its
subsidiaries managed and oversaw the well site; and various sub-contractors
worked on and serviced the tanks. Buz Holloway, a Chesapeake manager,
acknowledges that responsibility ultimately falls on Chesapeake as the site's
owner. NQ 85-4 at 68. Immediately after Parkison's accident, all the railings
on all the Great Plains tanks were checked. Out of a total of around fifty,
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twenty two tanks were identified as having the same pins missing." NQ 85-1

at 44, NQ 85-3 at 10, & NQ 85-4 at 31.
Taken as a whole, this record presents a strong case of negligence for the
jury to decide. A reasonable juror could easily conclude that each Defendant
should have been much more vigilant.
evidentiary foundation for punitives exists.

But no clear and convincing
II

[I]n order to superadd this

element of damages by way of punishment," Defendants must have acted or
failed to act with conscious indifference of probable injury, recklessly

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disregarding obvious risk. D'Arbonne Construction Co., Inc., 354 Ark. at 308,
123 S.W.3d at 898 (2003); In re Aircraft Accident, 351 F.3d at 878-79. "Because
punitive damages are not a favorite of the law in Arkansas, significant limits
are placed on their award." In re Aircraft Accident, 351 F.3d at 876 (citation and
quotation omitted). The facts, viewed in the light most favorable to Parkison,
show a widespread everybody/ somebody problem: every company thought
some other company was making sure the railings had pins. That's a homerun negligence case, not clear and convincing evidence that supports a
reasonable inference of malice from reckless disregard.

* * *
Defendants' motion for partial summary judgment, NQ 76, is granted.
Parkison's claim for punitive damages is dismissed with prejudice.
So Ordered.

D.P. Marshall Jr.
United States District Judge

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