United States District Court, W.D. Oklahoma
JAMES BLOCKER AND JAMI BLOCKER, husband and wife, et al., Plaintiffs,
CONOCOPHILLIPS COMPANY, Defendant.
OPINION AND ORDER
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs' Motion for
Partial Summary Judgment (Doc. No. 125) filed pursuant to
Rule 56 of the Federal Rules of Civil Procedure. In their
Motion, Plaintiffs seek summary adjudication of their claims
of negligence per se and public nuisance per
se, as well as certain affirmative defenses. The Motion
is fully briefed and ready for disposition. See
Def.'s Resp. (Doc. No. 159); Pls.' Reply (Doc. No.
judgment is a means of testing in advance of trial whether
the available evidence would permit a reasonable jury to find
in favor of the party asserting a claim. The Court must grant
summary judgment when “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). “An
issue is ‘genuine' if there is sufficient evidence
on each side so that a rational trier of fact could resolve
the issue either way.” Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An
issue of fact is ‘material' if under the
substantive law it is essential to the proper disposition of
the claim.” Id. The Tenth Circuit requires
that the moving party show “beyond a reasonable doubt
that it is entitled to summary judgment.” Pelt v.
Utah, 539 F.3d 1271, 1280 (10th Cir. 2008) (internal
quotation marks omitted).
that moves for summary judgment has the burden of showing
that the undisputed material facts require judgment as a
matter of law in its favor. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “When the
moving party does not have the ultimate burden of persuasion
at trial, it has both the initial burden of production on a
motion for summary judgment and the burden of establishing
that summary judgment is appropriate as a matter of
law.” Pelt, 539 F.3d at 1280. The movant can
satisfy its initial burden by producing “affirmative
evidence negating an essential element of the non-moving
party's claim, or by showing that the nonmoving party
does not have enough evidence to carry its burden of
persuasion at trial.” Id. (internal quotation
marks omitted). If the movant carries this initial burden,
the nonmovant must then “go beyond the pleadings and
designate specific facts” that would be admissible in
evidence in the event of trial “so as to make a showing
sufficient to establish the existence of an element essential
to that party's case in order to survive summary
judgment.” Self v. Crum, 439 F.3d 1227, 1230
(10th Cir. 2006); see Fed. R. Civ. P. 56(c)(1)(A).
The Court must then determine “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so onesided that one party must prevail
as a matter of law.” Anderson v. Liberty
Lobby, 477 U.S. 242, 251-52 (1986).
may establish the existence or nonexistence of a material
disputed fact by:
• citing to “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials” in the record; or
• demonstrating “that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.”
Civ. P. 56(c)(1)(A)-(B). While the Court views the evidence
and the inferences drawn from the record in the light most
favorable to the nonmoving party, see Pepsi-Cola Bottling
Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241,
1255 (10th Cir. 2005), “[t]he mere existence of a
scintilla of evidence in support of the [nonmovant's]
position will be insufficient; there must be evidence on
which the [trier of fact] could reasonably find for the
[nonmovant].” Liberty Lobby, 477 U.S. at 252.
the moving party has the burden of proof at trial, however,
“a more stringent summary judgment standard
applies.” Pelt, 539 F.3d at 1280. The moving
party cannot carry its burden by “pointing to parts of
the record that [the movant] believes illustrate the absence
of a genuine issue of material fact.” Id.
Rather, to obtain summary judgment on its own claim or
defense, a movant “must establish, as a matter of law,
all essential elements of the issue before the nonmovant can
be obligated to bring forward any specific facts alleged to
rebut the movant's case.” Id. Thus, if a
party who would bear the burden of persuasion at trial lacks
sufficient evidence on an essential element of a claim or
defense, all other factual issues concerning the claim or
defense become immaterial. See Celotex, 477 U.S. at
322; Adler, 144 F.3d at 670.
in 1935, Continental Oil Company
(“Continental”)-predecessor of Defendant-drilled
16 wells pursuant to an oil and gas lease (the “Young
Lease”) covering 160 acres of land in northwest
Oklahoma City. Pls.' Mot. ¶¶ 1-2;
Def.'s Resp. ¶¶ 1-2.Continental's production
of the wells occurred between 1935 and 1966. Pls.' Mot.
¶ 4; Def.'s Resp. ¶ 4. Eight of the wells were
drilled on the eastern half of the Young Lease, which is the
area that now constitutes the Clifford Farms subdivision.
Pls.' Mot. ¶ 3; Def.'s Resp. ¶ 3. Incident
to the oil production, the Young Lease wells generated
“produced water” that contained roughly 217, 000
parts per million (ppm) salt. Pls.' Mot. ¶¶
5-6; Def.'s Resp. ¶¶ 5-6. The parties agree
that, because of its high salinity, produced water can be
detrimental to groundwater systems. Pls.' Mot. ¶ 7;
Def.'s Resp. ¶ 7. The parties dispute, however, how
and where Continental stored the produced water, whether the
produced water leaked or otherwise escaped onto the surface
of the property, whether the surface soils and water beneath
Clifford Farms are now contaminated with elevated levels of
saline, chlorides, uranium, and other constituents, and, if
so, whether Continental's production and processing of
oil was the cause of the contamination. Pls.' Mot.
¶¶ 8-21; Def.'s Resp. ¶¶ 8-21.
2017, Clifford Farms residents submitted a Water Assessment
District Petition to the City of Oklahoma City, which passed
a Joint Resolution to create a Water Improvement District for
Clifford Farms. Pls.' Mot. ¶ 22; Def.'s Resp.
¶ 22. Plaintiffs who currently own properties within the
Clifford Farms subdivision were assessed the costs associated
with bringing municipal water into the neighborhood. These
Plaintiffs also incurred costs, fees, and other expenses to
connect their homes to municipal water. Pls.' Mot.
¶¶ 23-24; Def.'s Resp. ¶¶ 23-24.
seek summary judgment on their claims of negligence per se
and public nuisance per se, as well as certain affirmative
defenses. See Pls.' Mot. at 6.
Negligence Per Se
first contend that they are entitled to summary judgment on
their claim of negligence per se. Plaintiffs rely on a
statute that provides:
No inflammable product from any oil or gas well shall be
permitted to run into any tank, pool or stream used for
watering stock; and all waste of oil and refuse from tanks or
wells shall be drained into proper receptacles at a safe
distance from the tanks, wells or buildings, and be
immediately burned or transported from the premises, and in
no case shall it be permitted to flow over the land. Salt
water shall not be allowed to flow over the surface of the
Stat. tit. 52, § 296; see also Texas Co. v.
Mosshamer, 51 P.2d 757, 758 (Okla. 1935).
Oklahoma law, a plaintiff seeking to establish negligence per
se must demonstrate that “the claimed injury (a) was
caused by the law's violation, ” that the claimed
injury “(b) was of the type intended to be prevented by
the statute, ” and “(c) the injured party was a
member of the class meant to be protected by the
statute.” Lockhart v. Loosen, 943 P.2d 1074,
1078 (Okla. 1997); see Howard v. Zimmer, Inc., 299
P.3d 463, 467 (Okla. 2013); Hamilton v. Allen, 852
P.2d 697, 699 (Okla. 1993).
base their claim of negligence per se on the following facts,
which they primarily support by ...