Petri v. Kestrel Oil & Gas Properties, L.P. (878 F. Supp. 2d 744, 2012)

OPINION AND ORDERS OF SUMMARY JUDGMENT

MELINDA HARMON, District Judge.

Pending before the Court in the above referenced wrongful death and survivor action brought by Debbie Ann Petri as Administrator Paul Torres’ estate and as Guardian and Next Friend of his minor heir, Patrick Damian Torres, removed from state court on federal jurisdiction under the Outer Continental Shelf Lands Act, are the following motions: (1) Defendant Peregrine Oil & Gas II, L.L.C’s motion for summary judgment (# 125); (2) Defendants Malcolm Good and Rotorcraft Leasing Company’s motion for summary judgment (# 134) and motion to consider their unopposed motion for summary judgment (#292); (3) Defendants Shell Offshore Inc. and Shell Oil Company’s motion for summary judgment (# 145) and motion to consider their unopposed motion for summary judgment (# 296); (4) Defendant Wood Group Production Services, Inc.’s motion for partial summary judgment (# 146), motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(e) (# 156), and motion to bifurcate trial of separate issues (# 208); (5) Peregrine Oil & Gas II, L.L.C.’s motion in limine (#218); and (6) Wood Group Production Services, Inc.’s motion in limine (#220).

The governing pleading is Plaintiffs’ Second Amended Original Complaint (# 130). It alleges that Plaintiff Decedent Paul Torres (“Torres”) was working in the course and scope of his employment for Wood Group Production Services, Inc. on an unseaworthy oil rig owned and/or operated by Defendant Peregrine Oil and Gas II, LLC when he was swept off the rig by heavy seas and killed. The complaint asserts gross negligence and/or malice against Defendant Wood Group Production Services, Inc., negligence against Shell Oil Company and Shell Offshore, Inc., and negligence and gross negligence against the other Defendants, acting in concert and individually, jointly and severally. The Court will address the specific claims against each as it reviews the relevant motions.

Standard of Review

Summary judgment is proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The movant has the burden to demonstrate that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The substantive law governing the claims identifies the essential elements and thus indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where the non-movant bears the burden of proof at trial, the movant need only point to the absence of evidence to support an essential element of the non-movant’s case; the movant does not have to support its motion with evidence negating the nonmovant’s case. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994).

If the movant succeeds, the non-movant must come forward with “evidence such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. The non-movant “must come forward with ‘specific facts showing there is a genuine issue for trial.’ ” Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A factual dispute is deemed ‘genuine’ if a reasonable juror could return a verdict for the nonmovant, and a fact is considered ‘material’ if it might affect the outcome of the litigation under the governing substantive law.” Cross v. Cummins Engine Co., 993 F.2d 112, 114 (5th Cir. 1993). Summary judgment is proper if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party’s case.” Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006). Although the court draws all reasonable inferences in favor of the non-movant, the non-movant “cannot defeat summary judgment with conclusory, unsubstantiated assertions, or ‘only a scintilla of evidence.’ ” Turner v. Baylor Richardson Med. Center, 476 F.3d 337, 343 (5th Cir.2007). Conjecture, conclusory allegations, unsubstantiated assertions and speculation are not adequate to satisfy the nonmovant’s burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir.1994); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). Pleadings are not competent summary judgment evidence. Little, 37 F.3d at 1075; Wallace v. Texas Tech. U., 80 F.3d 1042, 1045 (5th Cir.1996).

A district court may not make credibility determinations or weigh evidence when deciding a summary judgment motion. EEOC v. Chevron Phillips, 570 F.3d 606, 612 n. 3 (5th Cir.2009), citing EEOC v. R.J. Gallagher Co., 181 F.3d 645, 652 (5th Cir.1999). Nor does the court have to sift through the record in search of evidence to support opposition to summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998).

A motion for summary judgment cannot be granted merely because no opposition has been filed, even though a failure to respond violates a local rule. Hibernia National Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985), citing John v. State of La. (Bd. of Trustees for State Colleges & Universities), 757 F.2d 698, 709 (5th Cir.1985). “The movant has the burden of establishing the absence of a genuine issue of material fact and, unless he has done so, the court may not grant the motion regardless of whether any response was filed.” Id., citing id. at 708. A decision to grant summary judgment based only on default is reversible error. Id. Even if a plaintiff fails to file a response to a dispositive motion despite a local rule’s mandate that a failure to respond is a representation of nonopposition, the Fifth Circuit has rejected the automatic granting of dispositive motions without responses without the court’s considering the substance of the motion. Watson v. United States, 285 Fed.Appx. 140, 143 (5th Cir.2008), citing Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir.2006), and John v. Louisiana, 757 F.2d 698, 708-09 (5th Cir.1985). “The mere failure to respond to a motion is not sufficient to justify a dismissal with prejudice.” Id.

Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” When a district court reviews a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.... ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). “Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) [“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’], and instead required that a complaint allege enough facts to state a claim that is plausible on its face.” St. Germain v. Howard, 556 F.3d 261, 263 n. 2 (5th Cir.2009), citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ”), citing Twombly, 127 S.Ct. at 1974. See also Alpert v. Riley, No. H-04-CV-3774, 2008 WL 304742, *14 (S.D.Tex. Jan. 31, 2008). “ ‘A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Montoya v. FedEx Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.2010), quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). Dismissal is appropriate when the plaintiff fails to allege “‘enough facts to state a claim to relief that is plausible on its face’ ” and therefore fails to “ ‘raise a right to relief above the speculative level.’ ” Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at 555, 570, 127 S.Ct. 1955.

Dismissal under Federal Rule of Civil Procedure 12(b)(6) is “appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom. Cloud v. United States, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002), cited for that proposition in Baisden v. I’m Ready Productions, No. Civ. A. H-08-0451, 2008 WL 2118170, *2 (S.D.Tex. May 16, 2008). See also ASARCO LLC v. Americas Min. Corp., 382 B.R. 49, 57 (S.D.Tex.2007) (“Dismissal “ ‘can be based either on a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.’ ” [citation omitted] ”), reconsidered in other part, 396 B.R. 278 (S.D.Tex.2008).

Pending Motions

1. Shell Oil Company and Shell Offshore, Inc.’s (collectively, “Shell’s”) unopposed Motion for Summary Judgment (# 145) and Motion to Consider # 145 (# 206)

In a single, bare-bones paragraph, Plaintiffs allege that Shell negligently designed, engineered and implemented Platform 969, the platform in dispute, by locating the emergency shutoff device (“ESD”) too near the water and failed to raise it. Shell notified Defendant Peregrine of the location and propensity to washout in high seas, and former Wood Group Production Services’ (“WGPS’ ”) employee Terryl Gipson testified that he repaired this particular ESD while Shell owned the platform, but neither Shell nor Peregrine Oil & Gas II, LLC (“Peregrine”) raised the ESD until after Torres’ death. Torres was swept out to sea by a large wave while working on the ESD at issue and drowned.

Shell’s motion argues that Shell owed no duty to Torres. With documentary support, it states that it did not own, manage, possess, operate, control, lease, invest or have any other form of interest in the platform on North Padres Island Block 969, a drilling platform in the Gulf of Mexico. Exhibit 1, U.S. Dept. of Interior, Minerals Management Service OCS Report, “Investigation of Fatal Accident North Padre Island Block 969, Platform JA OCS-G 5939, 19 January 2008.” It asserts that it was not involved with the Platform or the Decedent in any way other than the fact that it owned and operated the platform for a period of time up to six months prior to Torres’ death. Affidavit, Ex. 4. It further explains that Peregrine purchased the underlying lease and platform from Shell, effective July 1, 2007, as well as all appertaining assets, liabilities, responsibilities, and obligations for its operation. Ex. 8, Oct. 12, 2007 letter to the Department of the Interior from Peregrine. See also #299, Unsworn Declaration of Christopher D. Smith, Operations Manager for Shell. Thus Peregrine became the owner and operator of the lease and the platform before the accident and death. Moreover Peregrine had entered into an independent contractual relationship with the decedent’s employer, Wood Group Production Services, Inc. (collectively known as “WGPS”), to perform work on the platform. Ex. 1; see also # 299, Smith Decl. at 2 (“Because Shell had no business relationship with Mr. Torres or Wood Group with respect to the Platform on or about January 19, 2008, Shell had no ability to control the manner in which Mr. Torres performed his work on that day.”). As the previous lessor of the platform, as a matter of law Shell owed no duty to Torres.

Shell argues, and the Court agrees, that the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. §§ 1331-1356, rather than admiralty law, applies here because the accident occurred on a drilling platform located on the Outer Continental Shelf, and Texas negligence law, where not inconsistent with federal law, supplements the federal law here. Alleman v. Omni Energy Services Corp., 580 F.3d 280, 283 (5th Cir.2009) (OCSLA applies to accidents occurring on oil platforms on the Outer Continental Shelf and applies adjacent state law as surrogate federal law on those platforms to the extent they are not inconsistent with federal law); Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 217, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986), citing Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 366, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969); Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238, 241-45 (5th Cir.2005) (applying Texas negligence law to OCSLA action where accident occurred on offshore drilling platform adjacent to Texas). OCSLA applies even though Torres’ actual death was in the sea because the accident originated on a drilling platform off the coast of Texas, and OCSLA situs, federal maritime law does not apply of its own force because Torres was not a maritime employee and his profession had not significant relation to a traditional maritime activity, and, as will be discussed, the applicable Texas law is not inconsistent with federal law. Smith v. Pan Air Corp., 684 F.2d 1102, 1110 (5th Cir.1982) (“[W]e have applied OCSLA and, consequently, state law, to incidents in which platform works who were the victims of torts originating on these artificial islands were not actually injured or killed until they fell, jumped or were pushed into the surrounding seas.”); Oliver v. Aminoil USA Inc., 662 F.2d 349, 350-51 (5th Cir.1981) (per curiam) (OCSLA applies where worker slipped from drilling platform and fell into the sea), cert. denied, 456 U.S. 916, 102 S.Ct. 1770, 72 L.Ed.2d 175 (1982); Bible v. Chevron Oil Co., 460 F.2d 1218, 1219 (5th Cir.1972) (“Since the substance and consummation of the occurrence giving rise to the injuries sustained took place on the drilling platform, the fact that [decedent] ultimately wound up in the [sea] does not transform this ‘land based’ injury into a maritime injury.”), cert. denied, 409 U.S. 9844, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972); Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 425-26, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985) (holding offshore platform worker not engaged in maritime employment); Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 352 (5th Cir.1999) (work modifying offshore platform bears no significant relation to traditional maritime activity); In re Dearborn Marine Serv., Inc., 499 F.2d 263, 272-76 (5th Cir.1974) (holding that platform worker’s death caused by an explosion on a platform bore no significant relation to maritime law even though the death occurred while the worker was located on a vessel in navigable waters).

Shell cannot be liable for the condition or operation of the platform unless it owned, occupied, possessed or controlled the platform at the time of Torres’ death. County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002). Prior owners who no longer occupy, manage or possess the property owe no duty to third-parties who are injured on their formerly owned premises. See, e.g., Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex.1997); Durham v. Zarcades, 270 S.W.3d 708, 712 (Tex.App.Fort Worth 2008, no pet.).

Shell did not owe a duty to Torres because Shell had no ability to control his activities. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985); 95 Tex. Civ. Prac. & Rem.Code § 95.003. “Under Texas law, in the absence of a relationship between the parties giving rise to the right of control, one person is under no legal duty to control the conduct of another, even if there exists a practical ability to do so.” Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993). Furthermore, generally owners of a property do “not have a duty to see that an independent contractor performs the work in a safe manner.” Redinger, 689 S.W.2d at 418. Instead, a duty of care for employees of independent contractors only arises when the ability to control that employee’s actions exists. Id.; 95 Tex. Civ. Prac. & Rem.Code § 95.003. Torres was an independent contractor on the platform over whom Shell had no ability to exert control.

After reviewing the record, the Court agrees with Shell’s summation of the law and concludes that Plaintiff has failed to meet its burden of producing any evidence to raise a material factual issue regarding Shell’s liability and that Shell has shown that it is entitled to summary judgment as a matter of law. Thus the Court grants Shell’s motion for summary judgment. Therefore Shell’s motion for the Court to consider the motion for summary judgment is now MOOT.

2. Rotorcraft Leasing Company, LLC and Malcolm Good’s unopposed Motion for Summary Judgment (# 134) and Motion to Consider # 134 (# 292)

Again Plaintiffs allege a bare-bones claim, this time against Rotorcraft Leasing Company (“Rotorcraft”) and Malcolm Good (“Good”). Plaintiffs assert that the weather conditions were so bad that Good, piloting Rotorcraft’s helicopter at the time of the incident, had to abandon Torres in unsafe conditions on the platform because Good could not shut down the helicopter because of bad weather. Good allegedly acted either with a specific intent to cause Torres substantial injury, or, although subjectively aware of the risk involved, proceeded with conscious indifference to the rights, safety or welfare of others, including Torres.

Rotorcraft and Good contend that they owed no duty to Torres as a matter of law once he had exited the helicopter and that any duty they originally owed him was met when they delivered Torres to Platform 969 to perform work for his employer, WGPS. Plaintiffs have not even identified the particular duty that they claim Rotor-craft and Good breached. As an experienced offshore worker, Torres was responsible for judging the safety of his work and for determining what, if any, safety procedures should be followed. They insist that Torres’ failure to follow established safety procedures was the cause of Plaintiffs’ damages.

Rotorcraft and Good represent that Rotorcraft provides helicopter services to the oil and gas industry throughout the Gulf of Mexico. On April 2, 2007, Rotorcraft and WGPS entered into a Master Fight Services Agreement (Ex. 2), for helicopter services to transport personnel and equipment for WGPS. Rotorcraft’s obligation was to have helicopters available during the time period specified by WGPS.

Rotorcraft and Good state that on January 19, 2008, Torres was on duty on Platform JA, PN Block 975 (“NPI-975”), a platform leased by Peregrine, with fellow WGPS employee and Lead Operator Earl Hodges. Ex. 1-B, Dep. of James Fancher at p. 25, 11. 16-25, APPX 026; Ex. 3, U.S. Dept, of Interior, Minerals Management Service OCS Report (“Report”), APPX 049-APPX 050; Ex. 1-B, Deposition of Clyde Self, at p. 65, 11. 7-10, APPX 020. That same day Good transported WGPS employee Cal Rogers to NPI-975 from Polacios, Texas. Ex. 2, Affidavit of Rotor-craft, APPX 037. On arrival, Rogers helped unload groceries from the aircraft, and then Rogers and. Torres boarded the helicopter to go to Platform 969. Ex. 1-A, Dep. of Cal Rogers at p. 45, 11. 12-23, APPX 005; Ex. 2, Affidavit of Rotorcraft, APPX 037. Rogers’ job on the Platform 969 was to perform fire, gas, and nav-aid inspections, while Torres was directed to fix a tripped ESD on the platform. Ex. 1-A, Dep. of Rogers, at p. 36, 11. 15-21, and at 62, 1. 23-p. 63, 1. 7, APPX 004 and 008; Ex. 3, Report, APPX 053. The helicopter arrived at approximately 8:50 a.m., Rogers and Torres safely deplaned, and Good returned to NPI-975 to await Torres and Rogers’ completion of their jobs. On that day the weather at Platform 969 was reported as 35-knot winds, 8-foot seas, and overcast clouds at 1,200 feet. Ex. 3, Report at APPX 052. Rogers testified that he and Torres thought it was safe to perform work on the platform and that they did not tell Good that they did not want to go to the platform as planned. Ex. 1-A at 237, 11. 4-13 and 11. 24-p. 238, 1. 12, APPX 016. Torres was the senior employee and only operator present on the platform and therefore was the person in charge with the. responsibility to perform a job safety analysis (“JSA”). Ex. 1-A, Rogers Dep. at p. 237, 11. 18-20, APPX Ó16; at 277, 11. 2-10, APPX 018; at 277, 1. 20-p. 278, 1. 2, APPX 018; Ex. 1-B, Dep. of Self, p. 219,1. 25-p. 220,1. 4, APPX 022, and p. 226,11. 4-8, APPX. 024. See also Ex. 1-B, p. 218,1. 21-p. 219,1. 8, APPX 022 (explaining that a JSA should be completed at the particular work site because the purpose of a JSA is to identify and eliminate hazards), and at p. 225,11. 15-20 (Torres was the person in charge because he was the only operator present on the 969 platform). Nevertheless, a JSA was not performed that day. Ex. 1-A. Rogers Dep., at p. 277, 11. 2-10, and at p. 277, 1. 20-p. 278,1. 2, APPX 018; Ex. 1-B, Dep. of Self, p. 219,1. 25-p. 220,1. 4, APPX 022, at p. 226, 11. 4-8, APPX 024, and at p. 218,1. 21-p. 219,1. 8, APPX 022. Furthermore, neither Torres nor Rogers exercised their stop work authority at any point on that day. Ex. 1-A, Rogers Dep., p. 277, 11. 12-19, and p. 278, 1. 14-p. 279, 1. 2, APPX 018; Ex/ 3, Report APPX 055; Ex. 1-B, Self Dep. at p. 214,11.14-24, APPX 021, and at p. 221,1. 24-p. 222,1. 21, APPX 023 (stating that even if Hodges had told Torres how to perform his job, if Torres felt it was not safe because of weather conditions, Torres should have exercised his stop work authority). Defendants contend that “[a]s the person most aware of the risks associated with his work and the weather on the Platform in the date in question, Mr. Torres had the ultimate authority and responsibility to determine if at any point his assigned task could not be completed safely.” # 134 at 9, citing Ex. 1-A, Rogers Dep., p. 278, 11. 4-10, APPX 018, and p. 239, 11. 3-23, APPX 016.

Rogers also testified that he saw Torres working on the stairway between the main deck and the boat landing without a flotation device. Ex. 1-A, Rogers Dep., p. 76, 11. 10-25, APPX 009. Torres was required to wear a flotation device because of the location' of the platform. Ex. 1-A, Rogers Dep., p. 240, 1. 17-p. 242, 1. 1, APPX 016-017, p, 241, 1. 17-p. 244, 1. 24, APPX 017; Ex. 1-E, Dep. Ex. No. 14, APPX 032; Ex. 1-F Dep. Ex. No. 16, APPX 030; Ex. 1-B, Self Dep. at p. 216, 11. 8-17, APPX 022. Rogers and Torres worked for approximately twenty to thirty minutes before a large wave hit the platform. Rogers heard Torres yelling and saw that Torres had been swept overboard. Ex. 1-A, Dep. of Rogers, at p. 218, 11. 1-5, APPX 012, at p. 221,11. 5-20, APPX 013, at p. 222,11. 14-21, APPX 013; Ex. 3, Report, APPX 054. Rogers threw a buoy to Torres and gave notice of man overboard to NPI-975, and then threw a personal floatation device to Torres, but Torres was unable to reach either the buoy or the flotation device. Ex. 1-A, Rogers Dep., p. 221, 11. 5-20, APPX 013, at p. 231, 11. 13-19, APPX 014, at p. 233, 11. 8-13, APPX 015; Ex. 3, Report, APPX 054. Rogers testified that after about two minutes, Torres was floating face down. Ex. 1-A, Rogers Dep., p. 221,11. 5-20, APPX 013, at p. 231,11. 13-19, APPX 014, at p. 233, 11. 8-13, APPX 015; Ex. 3, Report, APPX 054. When Good received the notice of man overboard, he flew Hodges, who was on NPI-975 three miles from Platform 969, to Platform 969, where they hovered over Torres’ body until the helicopter required refueling. Ex. 1-A, Rogers Dep., p. 194, 1. 8-p. 195, 1. 7, APPX 010; Affidavit of Rotorcraft, APPX 037. Good picked Rogers up from the platform and took him back to NPI-975. Ex. 1-A, Rogers Dep., p. 194,1. 8-p. 195,1. 7, APPX 010; Ex. 2, Affidavit of Rotor-craft, APPX 037. Good returned to the 969 platform and waited there until the Coast Guard arrived. Id. Torres was pronounced dead at Spohn Memorial Hospital in Corpus Christi, Texas. Ex. 3, Report, APPX 048.

Aso asserting that OCSLA and Texas law, as surrogate federal law under OCS-LA, apply here, Good and Rotorcraft maintain that they did not breach any duty owed to Torres. They safely delivered Torres to the platform, discharging any duty they might have to him, contractual or otherwise. Ater that they did not owe any duty to him because they had no control over any aspect of Torres’ work or the platform, as evidenced by Good’s flying the helicopter back to NPI-975 to await Torres’ completion of his work.

The Texas Transportation Code requires that aircraft be operated safely. Tex. Transp. Code Ann. § 21.006(a). The state law measure of care required in the operation of an aircraft is ordinary care under the circumstances, i.e.', “the care which an ordinary prudent or reasonably careful pilot or operator would use under the same or similar circumstances.” 8A Tex. Jur.3d Aviation § 48. Good and Rotorcraft maintain that they met that standard of care in safely transporting Torres to the 969 platform.

Even if they were held to a higher standard, i.e., that imposed on commercial carriers, they did not breach that duty. A common carrier owes its passengers the degree of care that a “very cautious, prudent and competent person would use under the same or similar circumstances.” Slentz v. American Airlines, Inc., 817 S.W.2d 366, 369 (Tex.App.-Austin 1991, pet. denied). The Texas Transportation Code requires only that aircraft be operated safely. Tex. Transp, Code Ann. § 21.006(a). The carrier’s duty extends through the boarding and unloading process. Id. Here Rotorcraft and Good flew the helicopter safely to the platform and Torres exited the helicopter safely; thus Rotorcraft and Good satisfied the' duty owed by common carriers.

Not only did Rotorcraft and Good not owe a duty to Torres while he was working on the platform for WGPS, but they had no ability to control the tasks assigned to Torres or any WGPS employee, as evidenced by Good’s return to NPI-975 while Torres did his work on platform 969, and they also did not have superior knowledge of any risks associated with the platform or Torres’ work on it on the day of the incident. Indeed, if anyone had superior knowledge of the risk, it was Torres, an experienced employee, the person in charge that day, with stop work authority that he chose not to use, and the exclusive responsibility to determine whether his job was safe to perform that day. Ex. 1-A, Dep. of Cal Rogers, o. 278, 11. 4-10, APPX 018, p. 237,11. 18-20, p. 239,11. 3-23 APPX 016. See Rocha v. Faltys, 69 S.W.3d 315, 321-22 (Tex.App.-Austin 2002, no pet.) (In determining if a duty should be imposed, the court “must weigh the risk, foreseeability, and likelihood of injury against social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant” and “whether one party had superior knowledge of the risk or a right to control the actor who caused the harm.”). Nor did Rotorcraft or Good operate or control the platform on which Torres was working. See generally Exhibits 1-D, Dep. of Thomas O. Motschman, p. 237, 11. 14-17, APPX 031; 1-C, Dep. of James Fancher, p. 24,11. 8-25, p. 25,11. 16-25, APPX 027; Ex. 1-A, Dep. of Cal Rogers, p. 237,11.18-20, APPX 016, p. 277,11. 2-10, APPX 018, and p. 277, 1. 20-p. 278,1. 2, APPX 018; Ex. 1-B, Dep. of Clyde Self, p. 225, 11. 15-20, APPX 024(explaining Torres was the person in charge of the 969 platform because he was the only operator on it at that time).

Nor is it possible for a transportation company like Rotorcraft to reasonably foresee the different ways an offshore employee may be injured while performing his job, no less that Torres would ignore risks that his experience should have made him cognizant of or that Torres would fail to follow established safety regulations. “Texas common law is fundamentally premised on individuals’ responsibility for their own actions.” Carter v. Abbyad, 299 S.W.3d 892, 901 (Tex.App.-Austin 2009, no pet.).

Rotorcraft and Good did not have a duty to rescue Torres after he was swept into the water. Texas law provides that “an individual is under no legal duty to come to the aid of another in distress ....” Pinkerton’s v. Manriquez, 964 S.W.2d 39, 46 (Tex.App.-Houston 1998, pet. denied). Even if they had been on the platform when Torres was swept away, they would be categorized as mere bystanders with no duty to rescue Torres. “[A] mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others.” Texas Dept. of Trans. v. Fontenot, 151 S.W.3d 753, 760 (Tex.App.-Beaumont, 2004, pet. denied). “[S]imply taking ... an adult man to the location where [he] could choose to engage in an allegedly dangerous activity does not constitute negligent creation of a dangerous situation.” Rocha v. Faltys, 69 S.W.3d 315, 321 (Tex.App.-Austin 2002, no pet.).

The Court concludes that Good and Rotorcraft have met their burden here and established as a matter of law that they owed no duty to Torres and therefore no legal liability can arise based on negligence. Plaintiffs have failed to respond and to satisfy their burden to raise a genuine issue of material fact to avoid summary judgment. Therefore the Court concludes that Good and Rotorcraft are entitled to summary judgment. Their motion for the Court to consider their motion for summary judgment is now moot.

3. WGPS’s Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(6) and 12(e) (# 156)

WGPS complains that Plaintiffs have not fully complied with the Court’s June 2, 2011 Opinion and Order (# 124), granting dismissal of all claims against Prosafe, LP and Wood Group Management Services; it also dismissed the negligence claim against WGPS on the grounds it is barred by the exclusive-remedy provision of the Texas Workers’ Compensation Act (“the Act”), Texas Labor Code § 408.001(a), for ordinary negligence claims for injury or death occurring during the course and scope of the employee’s work responsibilities since WGPS, as Torres’ employer, subscribes to workers’ compensation insurance, and the conspiracy claim against Prosafe, LP and WGPS. In addition it granted WGPS’ motion for more definite statement and ordered Plaintiffs to provide more facts distinguishing the remaining plausible claims against each Defendant and identifying the purported wrongful death beneficiaries or to show good cause why they could not do so. WGPS objects that the Second Amended Complaint still refers to negligence, strict liability against WGPS, “negligence and as applicable, gross negligence of the Defendants,” joint and several liability, and strict liability for inherently hazardous and/or dangerous activity. It insists that the Act bars suit against WGPS except for exemplary damages. Thus “out of an abundance of caution,” it seeks express dismissal of all Plaintiffs’ claims and causes of action against WGPS for or premised upon negligence, strict liability, and/or joint and several liability.

Plaintiffs’ Response (#193)'

Plaintiffs insist that they did not intend to assert, nor does the Second Amended Complaint assert, claims of negligence against WGPS. They do plead gross negligence and exemplary damages against WGPS pursuant to the Texas Constitution. WGPS’ Reply (# US)

WGPS repeats that the complaint refers to negligence and strict liability claims against WGPS and that it simply seeks clarification and an express dismissal against it of what appears to be asserted against “Defendants” generally. Only a claim for gross damages and any associated exemplary damages can be asserted against WGPS.

WGPS also objects to Plaintiffs’ continuing to plead claims for' “phantom” heirs when they admit, “Plaintiff[] specifically pled that she knows of no other heir” and that “Plaintiff decedent (Paul Torres)’s only child, P.D.T., [is] the sole heir of Decedent’s estate.”

Court’s Decision

The Court finds that WGPS’s legal arguments are correct. See, e.g., Port Elevator-Brownsville, LLC v. Casados, 358 S.W.3d 238, 240-41 (Tex.2012); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) (The Texas Workers’ Compensation Act is the exclusive remedy for employees against subscriber employers for work-related injuries with the exception of intentional injury.). An intentional injury occurs when “the actor desires to cause the consequences of his act” or “believes that the consequences are substantially certain to result from it.” Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex.1989), quoting Restatement (Second) of Torts § 8A (1965).

Section 408.001(a) of the Texas Labor Code states, “Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” Section 408.001(b) provides, “This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.” To expressly clarify the matter, the Court .will grant the motion to dismiss and explicitly order that all Plaintiffs’ claims and causes of action against WGPS based on negligence, strict liability and/or joint and several liability, or inherently hazardous or dangerous activity are dismissed. As for identifying the beneficiary, the Court finds that Plaintiff has identified P.D.T. as the sole heir of Torres’ estate and is bound by that identification. If Plaintiff seeks to amend to add any other alleged heirs in the future, she will have to show good cause and obtain the Court’s approval.

4. WGPS’s Motion for Partial Summaiy Judgment (# 146)

As indicated, Plaintiffs’ claims against WGPS, Torres’ employer which subscribed to Worker’s Compensation, are limited to gross negligence and exemplary damages. WGPS notes that the Worker’s Compensation Act defines “gross negligence” in § 41.001(11), Texas Civil Practice and Remedies Code, as an act or omission

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Section 41.003(a) further requires that the “claimant prove[ ] by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from: (a) fraud; (2) malice; or (3) gross negligence.”

WGPS argues that because WGPS was not grossly negligent and did not engage in malice in regard to Torres’ death, and because there is no competent, legally sufficient evidence to support the objective or subjective elements of those claims, WGPS is entitled to summary judgment as a matter of law. WGPS further insists that documents attached to WGPS’ motion demonstrate that it was not grossly negligent, nor did it act with malice. Thus Plaintiffs’ claims and causes of action against WGPS should be dismissed in their entirety.

WGPS observes that to establish gross negligence, “the act or omission complained of must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex.2008). Evidence of simple negligence is insufficient to prove either the objective or subjective elements of gross negligence. Mobil Oil v. Ellender, 968 S.W.2d 917, 921 (Tex.1998); Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex.1995); see also Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 22-23 (Tex.1994).

The objective first prong of § 41.001(11) requires that the extreme risk not be merely a remote possibility of injury or even a high probability of minor harm, but instead the likelihood of serious injury to the plaintiff. Ellender, 968 S.W.2d at 921; Ung, 904 S.W.2d at 641; Moriel, 879 S.W.2d at 22. The risk must be viewed prospectively from the perspective of the actor, not in hindsight. Ellender, 968 S.W.2d at 921; Ung, 904 S.W.2d at 641; Moriel, 879 S.W.2d at 22-23. “Actual awareness” means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care. Ellender, 968 S.W.2d at 921.

Furthermore Section 41.001(7) of the Texas Civil Practice and Remedies Code defines “malice” as “a specific intent by the defendant to cause substantial injury or harm to the claimant.” WGPS insists there is no competent, legally sufficient evidence here that WGPS had “a specific intent ... to cause substantial injury or harm” to Torres. The Court agrees. Nor is there evidence of fraud. Thus only gross negligence remains a possible issue for recovery of exemplary damages.

Plaintiffs must prove’ gross negligence (and/or malice) by clear and convincing evidence (§ 41.003(a) and (b)), which is defined as “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Civ. Prac. & Rem.Code § 41.001(2). That burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence or bad faith. Id., § 41.003(b)

In sum, argues WGPS, not only is there no adequate evidence to raise a genuine issue of fact to support Plaintiffs’ claims that WGPS was grossly negligent or engaged in malice, but the evidence establishes the contrary: (1) that WGPS did not engage in any act or omission which, objectively from WGPS’ standpoint at the time of the incident, involved an extreme degree of risk in view of the probability and magnitude of the potential harm to others; (2) WGPS denies having actual, subjective awareness of the risk involved but nevertheless proceeding with conscious indifference to the rights, safety or welfare of others; and (3) WGPS did not have a specific (malicious) intent to cause substantial injury or harm to Torres. Torres, himself, decided to do the work, chose where to do it (boat landing level area) despite the actual wave conditions on the platform at that time and that his pants were getting wet from the ocean spray, without performing a JSA, without exercising “Stop Work Authority,” without wearing the required life preserver, and in violation of common sense and WGPS safety policies. WGPS points out that there is no evidence that any other WGPS employee has drowned or sustained serious injury under any circumstances, no less in circumstances similar to those at the time of Torres’ drowning. Thus Plaintiffs have not and cannot meet their summary judgment burden to raise a genuine issue of material fact based on clear and convincing evidence that WGPS engaged in malice or was grossly negligent. Thus these claims fail as a matter of law.

Plaintiffs’ [Corrected] Response (#198)

Agreeing that the only causes of action Plaintiffs may assert against Torres’ employer, WGPS, are gross negligence and exemplary damages, Plaintiffs insist that there is no evidence that WGPS exercised any care at all on the date of Torres’ death or WGPS would have provided that evidence. Nor does WGPS say how Plaintiffs’ gross negligence or malice claims are defeated other than to assert that Torres made the decision to do the work and where to do it, without first performing a JSA, without exercising stop work authority, and without wearing a life preserver, in violation of common sense and WGPS’ policies.

It is well established that a plaintiffs contributory negligence does not bar his recovery of exemplary damages. Pedernales Electric Co-op., Inc. v. Schulz, 583 S.W.2d 882 (Tex.App.-Waco 1979, writ refd n.r.e.). Furthermore, for purposes of liability, plaintiffs conduct is irrelevant to determining if punitive damages should be awarded because “[i]n Texas the overriding policy consideration in the award of exemplary damages is as punishment for gross negligence as distinguished from compensation.” Id. at 884-85. See Service Corp. Intern. v. Guerra, 348 S.W.3d 221, 238 (Tex.2011) (purpose of punitive damages “to deter and punish culpable conduct”).

Plaintiffs contend that Torres’ supervisor, Earl Hodges, not Torres, was the person in charge (“PIC”), that Hodges decided what Torres should do and where to do it, and that Hodges “did exactly what his supervisor told him to do.” WGPS’s Incident Sheet (# 198, Ex. 2) lists Torres’ supervisor, Earl Hodges, as the PIC of this work. Defendant WGPS, however, points out that the two references in that document also specify the location, “Person In Charge-NPI-975,” not on the 969 platform. See also Dep. of Jack Barnidge, # 249, Ex. 1 at p. 28, 11. 7-11; at p. 31, 11. 15-25; at p. 37, 1, 16-p. 38, 1. 1 (Hodges was PIC on 975 platform). When Hodges was asked in his interview with J. Connor Consulting after the incident, “Please state your position and responsibilities on the day of the incident,” Hodges responded, “PIC (person in charge).” Above that question and answer is written, “Earl Hodges-PN 975 Lead Operator-(Not on Scene).” Hodges was on NPI-975 when the accident occurred on the 969 platform, three miles away from the 975 platform. Evidence supports the fact that Hodges remained on NPI-975 until after the accident (Exhibit 4(1), Report, Ex. 1 at 6).

Nevertheless Plaintiffs argue that there is no evidence that anyone other than Hodges was in charge of the work being done that day; Hodges chose to do the repair work that day, after the 969 platform had been shut down for several days because of the high seas and strong winds, as well as where the ESD should be placed. Exhibits 4, 6, 9. In his investigation statements, Hodges stated that he had given specific work instructions to Torres “to put the ESD station nine feet off the water.” Ex. 4. Cheryl Sue also testified that Hodges stated that he gave special instructions to Torres on that day “to put in EDS station nine feet off the water.” Exhibit 12.

Regarding the JSA safety analysis that was never done, Plaintiffs point out that during the interview Hodges was asked, “did you conduct a JSA discussion with Mr. Rogers and Mr. Torres prior [to] them departing for 969 PF?” Hodges responded, “No.” Ex. 4 at 2. As the person in charge, they argue, Hodges, not Torres, had the responsibility to perform the JSA on the 969 platform. They also emphasize that neither Hodges, nor Rogers, nor Torres exercised the stop work authority that each had.

Furthermore despite WGPS’s charges, Plaintiffs argue that it would not have made a difference if Torres had worn a life preserver because Plaintiffs’ medical expert, Michael Baden testified that Torres died of cold water shock after being in the water. Ex. 6, Madeley Aff. at 3-4; Ex. 7, Dep. of Michael Baden, M.D. at 47-48 (first opinion that Torres died from cold water shock and even if he had been wearing a life vest he would have died). Thus what was needed was some equipment to keep him from falling into the water, such as a harness, a means of tying off with fall protection, or a railing, but there was none.

Plaintiffs contend that Hodges was grossly negligent because he admitted that he had actual knowledge from a weather report that the winds were gusting “30-40” and the seas were eight to ten feet high, yet he ordered Torres to put in the EDS at nine feet, where ten foot waves could kill him. Plaintiffs point out that according to notes taken by Cheryl Sue during an investigatory interview of Hodges about the incident for Peregrine, a distressed Hodges stated that “it should have been him [Hodges]. He should have gone there.” Cheryl Sue Dep., Ex. 12 at 97, 11. 5-6. Plaintiffs represent without supporting evidence that Hodges committed suicide shortly after the investigation. The point out that Hodges also admitted there was pressure from his supervisors to get the work accomplished quickly because Peregrine and WGPS had stopped work on the 969 platform the previous days because of bad weather conditions and the damaged EDS. Ex. 4 at 1; Affid. of Madeley, Ex. 6 at 5. Plaintiffs argue that Hodges’ decision, with actual knowledge that the seas were eight to ten feet high at Platform 969, to perform the work, and his specific order where it was to be done in rough sea conditions, involved an extreme degree of risk, satisfying the first prong of gross negligence. Ex. 6, affidavit of Jack Medley; Barnidge Dep., Ex. 8 at 186,11.1-1. The Court observes that Plaintiffs ignore Sue’s notes stating that in response to the question, “In view of the weather conditions did you think it was safe for the crew to be working on the 969 PF on the morning of the incident?,” Hodges responded, ‘Tes had planned to go himself.” Ex. 4 at 3.

Plaintiffs argue that they satisfy the other prong of § 95.003 in Hodges’ instruction to Torres on January 19, 2008 to “move up the ladder and put in the ESD station nine feet off the water” when Hodges knew there were ten-foot waves. Barnidge Dep., Ex. 9, p. 253, 11. 7-15.; Affid. of Plaintiffs safety engineering expert Jack Madeley, Ex. 6. Ex. 3 at 3. Plaintiffs argue that at nine feet off the water, an eight-foot wave would not hit Torres, but a ten foot-wave would.

Plaintiffs assert that WGPS’s failure to provide Torres with a lifeline or safety harness to prevent him from falling into the water under the conditions described supports their claim of gross negligence. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778 (Tex.2001) (evidence supported finding that when objectively viewed from the general contractor’s standpoint, the general contractor’s knowledge of the extreme risk of fatal falls for subcontractor employees installing windows on a high rise building when they were using only safety belts and lanyards without independent lifelines, but conscious choice to do nothing to require proper safety equipment for fall protection, constituted gross negligence). Plaintiffs assert that there was no equipment available on the platform that would have completely prevented Torres from falling into the water. Affid. Madeley, Ex. 6 at 5.

Plaintiffs further argue that a combination of factors here constituted gross negligence. See Burk Royalty v. Walls, 616 S.W.2d 911, 922 (Tex.1981) (“[T]he existence of gross negligence need not rest upon a single act or omission, but may result from a combination of negligent acts or omissions, and many circumstances and elements may be considered in determining whether an act constitutes gross negligence. A mental state may be inferred from the actions.”); Granite Construction Co. v. Mendoza, 816 S.W.2d 756, 764 (Tex. App.-Dallas 1991). They point to (1) the absence of fall protection, (2) no requirement to wear fall protection under the circumstances, (3) no safety analysis (JSA) performed, (4) no plan to safely perform the work, (5) “it was the worst day to work,” and (6) Hodges and Torres failed to exercise their stop work authority. Plaintiffs claim they have provided evidence that nothing was done correctly on the day of Torres’ death and that WGPS had actual knowledge of the risks, but did not care. Plaintiffs insist they have raised sufficient fact issues about gross negligence to preclude summary judgment.

WGPS’s Reply (# 248 and 249)

After reiterating much of its motion for summary judgment, WGPS insists Plaintiffs have failed to submit competent evidence to show anything more than ordinary negligence and to raise a genuine issue of fact regarding gross negligence. Plaintiffs have failed to show that WGPS was actually, subjectively aware at the time of the following: (a) that the actual reason, rather than a possible or suspected reason, that the 969 platform was shut down before the day of Torres’ death was due to an ESD located on a stairwell above the platform boat landing; (b) that Torres would decide a repair of that particular EDS was feasible; (c) that Torres would leave the main deck of platform 969 and go to the boat landing level area to work, given the actual wave conditions at platform _ 969, which were clearly obvious to Torres, the only operator on the 969 platform, but which were unknown to WGPS; (d) that Torres would not choose other available and known means to bring the 969 platform online, e.g., installing a temporary plug at or near the main deck level; (e) that Torres would choose to work where his pants were getting wet from ocean spray; (f) that Torres would not exercise Stop Work Authority in the event he was faced with a potentially unsafe condition or job; (g) that Torres would ignore WGPS’s company policy and the posted instructions on the platform (“PDF’S REQUIRED BEYOND THIS POINT”) by not wearing a life preserver/PDF (# 146, Exs. 1, 2, 3, 9 (at p.- 156A. 18-p. 159/1. 18, p. 240A. 17-p. 244/1. 4, p. 240/1. 17-p. 247/1. 4), and 10 (at p. 392/11. 8-15, p. 393/11.15-19)); (h) that after working for about twenty-five minutes without injury, Torres would place himself in a position where he was likely (rather than potentially likely) to be swept off the 969 platform by a large wave and that he would not be wearing a life preserver/PDF; and/or when viewed objectively from the standpoint of WGPS at the time, that WGPS engaged in any act or omission that involved an extreme degree of risk of drowning, of which WGPS was actually, subjectively aware, but that WGPS’ actions demonstrated that WGPS did not care about the consequences to Torres of a known, extreme risk of drowning. There is no evidence that any other WGPS employee has drowned or sustained serious injury under any circumstances, much less in any circumstances similar to those at the time of Torres’ accident.

WGPS also challenges Plaintiffs’ assertion the WGPS did not provide any evidence of care even though it is not required to do so. As movant for summary judgment, WGPS only has to show the absence of any genuine material fact issue; it does not have to negate the elements of Plaintiffs’ claims where Plaintiffs bear the burden of proof at trial. Nevertheless, WGPS has provided evidence of steps it took in the exercise of ordinary care, e.g., safety policies and training, Stop Work Authority, availability of PFDs, and warning sign requiring the wearing of PDFS when walking down the stairwell from the main deck of the 969 platform.

On the other hand, argues WGPS, the summary judgment evidence in the record establishes that (a) WGPS did not engage in any act or omission which, when viewed objectively from WGPS’s perspective at the time of the accident, involved an extreme degree of risk in view of the probability and magnitude of the potential harm to others; (b) WGPS did not have actual, subjective awareness of the risk involved nor proceed with conscious indifference to the rights, safety or welfare of others; and (c) WGPS did not have a specific, malicious intent to cause substantial injury or harm to Torres. Even though Plaintiffs argue that Hodges knew or even could have known the actual conditions on Platform 969, Hodges was three miles away from the 969 platform, raising questions how he could have known the actual conditions on that platform, much less later when Torres got there and decided to work on it. Dep. of Jack Barnidge, # 249, Ex. 1 at p. 42, 11. 6-11 (wind speeds and sea conditions can “vary all kind of way” within two miles in the sea); Ex. 11, Dep. of Thomas O. Motschman, Jr., at p. 50, 11. 1-23 (while generally wave heights and winds in the Gulf of Mexico are the same within a mile and a half, it can pour down rain on one platform and be bright and “sunshiny” at another a mile and a half away); Dep. of Rogers, Ex. 9 at 237-40 (neither Torres nor Rogers thought the weather conditions made it unsafe to work on the 969 platform on the day of the incident).

More to the point, Plaintiffs cannot show with clear and convincing evidence that WGPS/Hodges was consciously indifferent since Torres was swept out to sea by a large rogue wave, from a position that Torres chose to work at, when Torres was not wearing an available life jacket required by both company safety policy and posted signage warning of the requirement, and because Torres failed to exercise the stop work authority that he had been given by WGPS. Clearly there is no evidence that WGPS “did nothing to protect [Torres from any risk of drowning.]” Diamond Shamrock Refining Co., LP v. Hall, 168 S.W.3d 164 (Tex.2005) (“Viewing the record in the light most favorable to the plaintiff, there is no clear and convincing evidence that Diamond Shamrock knew of the risk of the compressor explosion that resulted in Hall’s death and yet did not care.”). WGPS insists that the exhibits relied upon by Plaintiffs do not constitute clear and convincing evidence of gross negligence or malice entitling Plaintiffs to recover anything from WGPS. Not only is there no evidence of malice that meets the statutory definition, Tex. Civ. Prac. & Rem.Code § 41.001(7), i.e., that WGPS had a “specific intent ... to cause substantial injury or harm” to Torres, but the facts show the opposite: Torres was well-liked, he was promoted through the ranks to operator, and WGPS had policies and equipment in place to avoid this accident if Torres had followed the policies or used an available life preserver.

Court’s Decision

Review of a motion for summary judgment is different from review of a jury’s verdict at trial. As noted, to avoid summary judgment, a nonmovant need only show that a genuine issue of material fact on the essential elements of his cause of action on which he bears the burden of proof at trial, such that a reasonable jury might return a verdict in his favor, i.e., “there are ... 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.” Anderson, 477 U.S. at 249, 250, 106 S.Ct. 2505. On a summary judgment review, all evidence and reasonable inferences must be viewed in a light most favorable to the nonmovant. Unlike a jury hearing evidence at trial, the court on summary judgment may not make credibility determinations or weigh competing evidence to determine the truth of the matter, but may only determine whether there is a genuine issue of material fact for trial. Anderson, 477 U.S. at 249, 255, 106 S.Ct. 2505. See also International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir.1991) (“In resolving the motion, the court may not undertake to evaluate the credibility of the witnesses, weigh the evidence or resolve factual disputes; so long as the evidence in the record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive at a verdict in that party’s favor, the court must deny the motion.” (citing Anderson, 477 U.S. at 253-54, 106 S.Ct. 2505).) Rule 56 authorizes summary judgment “ ‘only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is ... (and where) no genuine issue remains for trial ... (for) the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.’ ” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944). If the evidence on key, material facts is reasonably disputed, the claim is not amenable to summary judgment and the defendant’s motion must be denied. Of course conclusory statements unsupported by evidence or the mere existence of a scintilla of evidence in support of the nonmovant’s position is not sufficient; there must be probative evidence on which a jury could reasonably find for the nonmovant. Anderson, 477 U.S. at 248, 252, 106 S.Ct. 2505.

As noted, with a cause of action for gross negligence, Plaintiffs bear the burden of proving their claim under the heightened standard of clear and convincing evidence, rather than the usual preponderance of the evidence. The clear and convincing evidentiary standard, on the surface, might appear contrary to the boilerplate general summary judgment standard that evidence need only raise an genuine issue of material fact for .trial. The Supreme Court, however, addressed the effect of such a heightened standard in a criminal trial (beyond a reasonable doubt) and on summary judgment in the context of the First Amendment in a civil libel case (actual malice) in Anderson, 477 U.S. at 252-57, 106 S.Ct. 2505, and determined that the higher evidentiary standard must be taken into account. “[T]he determination of whether a given factual dispute requires submission to a jury must be guided by the evidentiary standards that apply to the case.” Id. at 255, 106 S.Ct. 2505. It opined,

[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.... The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant. It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.

Id. “Thus, where the factual dispute concerns actual malice, ... the appropriate summary judgment evidence question will be whether the evidence in the record could support a reasonable jury finding whether the plaintiff has shown actual malice by clear and convincing evidence or the plaintiff has not.” Id. at 255-56, 106 S.Ct. 2505. While a defendant moving for summary judgment may initially show there is no genuine issue of material fact, the plaintiff may not rest on mere allegations or denials, but must offer significant probative evidence to support his contentions and defeat a properly supported motion for summary judgment by showing that a jury might return a verdict in his favor. Id. at 256-57, 106 S.Ct. 2505. The judge must then be guided by the “clear and convincing” evidentiary stand in deciding whether the evidence presented is such that a reasonable jury might find knowledge of the danger and conscious indifference with convincing clarity. Id. at 257, 106 S.Ct. 2505. See also Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 275 (5th Cir.1987), cert. denied, 812 F.2d 265 (1987).

On summary judgment the judge should “bear in mind the actual quantum and quality of proof necessary to support liability,” here clear and convincing evidence