Date: 09-16-2012

Case Style: Brian Gobble v. The Manitowoc Cranes, Inc.

Case Number: CJ-2011-6836

Judge: Lisa T. Davis

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Richard M. Fogg and Renee Eberhardt

Defendant's Attorney: Cary E. Hiltgen and Anh Kim Tran for Grove Worldwide, LLC

Daniel E. Bryan, III and Thomas Ishmael for Chesapeake Energy Corporation

Gerald P. Green and John C. Lennon for Scott-Macon Equipment Oklahoma, Inc.

Description: Brian Gobble, individually , and Dean Parsons, individually and as special administrator of the Estate of Michael Parsons, deceased, sued The Manitowoc Cranes, Inc.; Grove Worldwide, LLC; Scott-Macon Equipment of Oklahoma, Inc., Silverscliffe Construction Company; Chesapeake Energy Corporation, et al. on personal tort theories claiming:

1. Plaintiff Brian Gobble (hereinafter “Gobble”) is a resident individual of Canadian County, Oklahoma.

2. Defendant, The Manitowoc Cranes, Inc. (hereinafter “Manitowoc”) is a corporation organized under the laws of the State of Wisconsin which places its products within the stream of commerce in Oklahoma County, Oklahoma.

3. Defendant, Grove WorldWide, LLC, (hereinafter “Grove”) is a Delaware corporation with its principal place of business at 1565 Buchanan Trial East, Shady Grove, PA 17256.

4. Defendant Scott-Macon Equipment Oklahoma, Inc. (hereinafter “Scott- Macon”) is a corporation organized under the laws of the state of Oklahoma which places its products within the stream of commerce in Oklahoma and whose principal place of business is located in Tulsa, Oklahoma.

FACTS

5. On August 31, 2010, Gobble was severely injured because a jib extension (sometimes referred to as a “jib” or “boom extension”) fell from the boom of a crane which was defectively designed and manufactured by Defendant Manitowoc and/or Grove Worldwide, LLC. The subject crane was manufactured under the trade name “Grove”. The incident occurred in Oklahoma County, Oklahoma.

6. The jib extension fell from the boom of the crane while Gobble was attempting to stow (or fold in) the jib. “Stowage” of the jib, which involves the removal and placement of several pins, is the process of folding and securing the jib when it is no longer needed or when the crane has to be moved.

The Grove RT913OE Crane’s Jib Design and Manitowoc’s Conduct

7. The subject crane was designed with a jib stowage/extension mechanism which merely uses a single pin to hold the jib extension in place during stowage and extension. The jib extensions on the Defendant’s cranes which are usually a lattice style or a solid box design, are made of steel, typically weigh thousands of pounds, and are suspended along side of the crane boom overhead of those working with the crane.

8. The Defendants’ use of a single pin to hold the jib in place during stowage and extension violates basic engineering principles and is otherwise unreasonably dangerous because the design lacks redundant measures to keep the jib from falling.

9. Defendant Manitowoc and its predecessors have known (or should have known) about the defective nature of its jib stowage/extension mechanism since 1989 and before. Manitowoc and Grove have failed and/or refused to design and manufacture the jib stowage/extension mechanism in a reasonably safe manner and with reckless disregard for the rights and safety of others.

10. Scott-Macon delivered the subject crane without properly inspecting and/or testing the jib and jib stowage.

11. Scoff-Macon had a duty to inspect, test and/or provide the subject crane in safe working order under Oklahoma law. Rent-a-Crane nor Gobble realized or could reasonably appreciate the defective condition of the subject crane before the incident occurred.

COUNT ONE

Strict Products Liability

Defendant Manitowoc and Defendant Grove

12. Plaintiff adopts and incorporates by reference all allegations in the previous paragraphs as if fully set forth herein.

13. Plaintiff brings this action under strict products liability pursuant to the laws of the State of Oklahoma.

14. At all times material hereto, Defendants Manitowoc and Grove were in the business of manufacturing, designing, selling, marketing, building, maintaining,
instructing, training, leasing or otherwise puffing in the stream of commerce the equipment of the type made the basis of this suit.

15. Plaintiff avers that the crane and its component parts were, at the time of Plaintiff Gobble’s injuries, in substantially the same defective condition as when the equipment and its component parts left the custody and control of Defendant Manitowoc.

16. Plaintiff asserts that the crane in question and its component parts was manufactured, designed, sold, marketed, built, maintained, leased or otherwise put in the stream of commerce in a negligent, defective and unreasonably dangerous condition.

17. The crane made the basis of this suit when designed, manufactured, marketed and leased as was done here by the Defendants Manitowoc and Grove is unreasonably dangerous to a person who uses, consumes, or might be reasonably expected to be affected by the crane.

18. Plaintiff was a person who used, consumed, or could have reasonably been affected by the defective crane.

19. The Defendants Manitowoc and Grove so negligently designed, manufactured, constructed, assembled sold, distributed, marketed the crane that it was dangerous and unsafe for its intended use.

20. By way of example, the crane was defective and unreasonably dangerous because the crane:

a. was not properly designed so as to prevent injuries to Plaintiff Gobble;

b. was improperly designed thereby providing an inadequate and defective product which increased the harm to Plaintiff
Gobble;

c. was designed so that the jib and/or boom could fall from the crane;

d. had inaccurate and/or inadequate instructions and warnings;

e. had inadequate and/or defective safety devices; and

f. was otherwise manufactured, designed, sold, marketed, built, maintained, leased or otherwise put into the stream of commerce without warning of the crane’s defective condition.

21. The Defendants Manitowoc and Grove knew or should have known of the dangerous and defective conditions of the crane in question. Plaintiff contends that Defendants Manitowoc and Grove have known of the defective nature of its design for decades through knowledge of other similar incidents and other information available to Defendant. Plaintiffs ifirther contend that Defendants Manitowoc and Grove have acted with a conscious, reckless, wanton and willftul disregard for the rights and safety of others.

22. The aforementioned dangerous and defective conditions as well as the breach of duties owed proximately caused Gobble’s injuries. The injuries caused by the actions and omissions of Defendants were foreseeable.

WHEREFORE, Plaintiffs demand judgment against Defendant Manitowoc and Grove for compensatory and punitive damages in an amount to be determined by a jury together with interest and costs.

COUNT FOUR

Strict Products Liability

Defendant Scoff-Macon

23. Plaintiff adopts and incorporates by reference all allegations in the previous paragraphs as if filly set forth herein.

24. Plaintiff brings this action under strict products liability pursuant to the laws of the State of Oklahoma.

25. At all times material hereto, Defendant Scoff-Macon had been in the business of selling, marketing, maintaining, instructing, training, leasing or otherwise puffing in the stream of commerce the equipment of the type made the basis of this suit.

26. Plaintiff avers that the crane and its component parts were, at the time of Plaintiff Gobble’s injuries, in substantially the same defective condition as when the equipment and its component parts left the custody and control of Defendant Scott- Macon.

27. Plaintiff assert that the crane in question and its component parts was sold, marketed, maintained, repaired, leased or otherwise put in the stream of commerce in a negligent, defective and unreasonably dangerous condition.

28. The crane made the basis of this suit when sold, marketed, maintained, repaired and leased as was done here by the Defendant Scoff-Macon was unreasonably dangerous to a person who uses, consumes, or might be reasonably expected to be affected by the crane.

29. Plaintiff Gobble was a person who used, consumed, or could have reasonably been affected by the defective crane.

30, Defendant Scoff-Macon so negligently sold, distributed, marketed, maintained, repaired and leased the crane that it was dangerous and unsafe for its intended use.

31. By way of example, the crane was defective and unreasonably dangerous because the crane:

a. was not properly designed, distributed, supplied, marketed, maintained, repaired andJor leased so as to prevent injuries to Plaintiff Gobble;

b. was improperly designed, distributed, supplied, marketed, maintained, repaired and/or leased thereby providing an inadequate and defective product which increased the harm to Plaintiff Gobble;

c. was designed, distributed, supplied, marketed, maintained, repaired and/or leased in such a condition that the jib and/or boom could fall from the crane and/or the jib could not be safely stowed in a reasonable manner;
ci, had inaccurate and inadequate instructions and warnings;

e. had inadequate and/or defective safety devices; and

f. was otherwise sold, marketed, distributed, supplied, maintained, repaired, and/or leased or otherwise put into the stream of commerce without warning of the crane’s defective condition.

32. The Defendant Scott-Macon knew or should have known of the dangerous and defective conditions of the crane in question.

33. The aforementioned dangerous and defective conditions as well as the breach of duties owed proximately caused the injuries referenced herein. The injuries caused by the actions and omissions of Defendant Scott-Macon were foreseeable.

WHEREFORE, Plaintiff demands judgment against Defendant Scott-Macon for compensatory and punitive damages in an amount to be determined by a jury together with interest and costs.

COUNT SIX

Negligence/Wantonness and Willful Conduct

Defendant Scott-Macon

34. Plaintiff adopts and incorporates by reference all allegations in the previous paragraphs as if fUlly set forth herein.

35. Plaintiff brings this action under the theory of negligence, wantonness and willfUl conduct.

36. Plaintiff asserts that the crane in question and its component parts was sold, marketed, maintained, repaired, leased or otherwise put in the stream of commerce in a negligent, defective and unreasonably dangerous condition.

37. Defendant Scott-Macon had a duty to provide a suitable crane in proper working order and in a reasonably safe condition. Defendant Scott-Macon was also required to do the following: to properly repair and/or maintain the subject crane; to train crane personnel, including Gobble, concerning any specific operational and/or safety related issues involved with the subject crane; and/or to fUlfill all duties, whether express
or implied, as set forth in the agreement(s) between Rent-a-Crane and Defendant Scott- Macon.

38. Despite the duties set forth above, Defendant Scoff-Macon negligently, wantonly, fraudulently, maliciously, oppressively and willfUlly failed to sell, lease, market, maintain, repair, instruct, train or otherwise put the crane and its component parts into the stream of commerce in a safe or reasonable condition.

39. The crane reached its ultimate users without substantial change in the condition in which it was sold.

40. Defendant Scoff-Macon acted in negligent reckless and conscious disregard for the rights and safety of those within the foreseeable zone of danger including Plaintiff Gobble.

41. The aforementioned dangerous and defective conditions as well as the breach of duties owed proximately caused the injuries referenced herein. The injuries caused by the actions and omissions of Defendant Scoff-Macon were foreseeable.

WHEREFORE, Plaintiffs demand judgment against Defendant Scoff-Macon for compensatory and punitive damages in an amount to be determined by a jury together with interest and costs.

DAMAGES AND REMEDIES

42. Plaintiff adopts and incorporates by reference all allegations in the previous paragraphs as if fully set forth herein.

A. Plaintiff Brian Gobble’s Injuries and Damages

43. As a direct result of the Defendants’ combined conduct, Plaintiff Brian Gobble has suffered severe physical injuries, emotional distress, mental anguish, loss of income, expenses and other economic injury. Plaintiff Gobble’s injuries are permanent in nature. Plaintiff Gobble seeks recovery of compensatory, punitive and other damages allowable under Oklahoma law from the Defendants, jointly and severally.

PRAYER

WHEREFORE, Plaintiffs demand judgment against all Defendants, jointly and severally, representing all actual, compensatory, special and general damages under Oklahoma law as the evidence shows they are justly entitled to recover, as well as for punitive or exemplary damages in an amount sufficient to keep such wrongful conduct from being repeated, together with all interests, costs and all other amounts as allowed by law, such amount to be determined by the enlightened conscience of a fair and impartial jury.


Chesapeake answered as follows:

1. CEC denies, generally and specifically, each and every material allegation set forth in the Petition except as may be hereafter specifically admitted.

2. In response to the allegations contained in Paragraphs 1 and 8, it is admitted that CEC is an Oklahoma Corporation. Further, CEC lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

3. In response to the allegations contained in Paragraphs 2-7 and sufficient knowledge and information to admit or deny those allegations, denied and strict proof thereof is demanded.

4. CEC lacks thus all are 4. In response tothe allegations contained in Paragraphs 10-20, none of which are directed at CEC, at this time CEC lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

5. In response to the allegations contained in Paragraph 21, it is admitted that Silvercliffe Construction Company was the general contractor on the project, however CEC lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus, all are denied and strict proof thereof is demanded.

6. In response to the allegations contained in Paragraphs 22-24, none of which are directed at CEC, at this time CEC lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

7. The allegations contained in Paragraphs 25-29, insofar as they relate to CEC are hereby DENIED. Further, CEC lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

8. In response to Paragraph 30, CEC adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

9. In response to the allegations contained in Paragraphs 31-89, none of which are directed at CEC, at this time CEC lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

10. In response to Paragraph 90, CEC adopts and incorporates by reference all
responses set forth in the foregoing paragraphs as though fully set forth herein.

11. The allegations contained in Paragraphs 91-94, insofar as they relate to CEC are hereby DENIED. Further, CEC lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

12. In response to Paragraph 95, CEC adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

13. In response to Paragraphs 96 and 97, although it is admitted that Silveroliffe entered into a contract and was hired as the general contractor, all remaining allegations contained therein are denied and strict proof thereof is demanded.

14. Paragraphs 98 - 101 are denied insofar as they relate to CEC.

15. In response to Paragraph 102, CEC adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

16. Although Paragraph 103 contains no specific allegation against any party, it is denied.

17. The allegations contained in Paragraphs 104-107, insofar as they relate to CEC are hereby DENIED. Further, CEC lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

18. In response to Paragraph 108, CEC adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

19. In response to the allegations contained in Paragraphs 109-115, none of which are directed at CEC, at this time CEC lacks sufficient knowledge and information to
admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

20. In response to Paragraph 116, CEC adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

21. In response to Paragraph 117, CEC lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

22. The allegations contained in Paragraphs 118, insofar as they relate to CEC are hereby DENIED. Further, CEC lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

23. In response to Paragraph 119, CEC adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

24. In response to Paragraph 120 and 121, CEC lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

25. The allegations contained in Paragraphs 122 and 123, insofar as they relate to CEC are hereby DENIED. Further, CEC lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

26. CEC denies that Plaintiffs are entitled to the relief sought and requests the Court deny Plaintiffs’ prayer as stated in the final paragraphs of Count(s) Eight, Nine, Ten, Eleven, Twelve and the final paragraph of the Amended Petition.

27. Any allegation or averment not specifically admitted is denied.

AFFIRMATIVE DEFENSES

28. CEC was not negligent.

29. CEC owed no duty to Plaintiffs.

29. CEC breached no duty to Plaintiffs.

30. CEC did not cause the alleged incident as claimed by Plaintiffs or any resulting damages.

31. CEC is not liable under any cognizable legal theory or claim to Plaintiffs.

32. All actions of CEC were reasonable and proper.

33. CEC is not a proper party to this lawsuit and should be dismissed as no one acting on its behalf or under its
direction and control was involved in causing the incident as claimed by Plaintiffs.

34. Failure to state a claim upon which relief can be granted.

35. Failure to join necessary and indispensable parties.

36. Jurisdiction is improper.

37. The damages, injuries and losses, if any, claimed by each Plaintiffs resulted from the negligent conduct of Plaintiff Gobble and Decedent Parsons and therefore Plaintiffs are not entitled to recover from CEC.

38. The damages, injuries and losses, if any, claimed by each Plaintiffs were caused by third parties over whom CEC exercised no ownership or control.

39. Plaintiff Gobble and Decedent Parsons assumed the risk of any harm or injury from the activities which they negligently and knowingly engaged.

40. Failure to mitigate damages.

41. At the very least, the individual negligence of each Plaintiff Gobble and Decedent, Parsons is to such a degree as to bar any recovery, or in the alternative, each Plaintiff can only recover for that percentage of negligence that may be attributable to CEC by a jury.

42. No valid enforceable contract exists between CEC and Plaintiff Gobble and Decedent, Parsons.

43. Plaintiff Gobble and Decedent, Parsons were not parties to any contract between CEC and Silvercliffe.

44. Plaintiff Gobble and Decedent, Parsons were not third party beneficiaries of any contract between CEC and Silvercliffe.

45. CEC did not breach any contractual obligation, warranties and/or duties owed to Plaintiff Gobble and Decedent, Parsons pursuant to any contract entered by CEC.

46. Plaintiffs are not entitled to attorney’s fees for breach of contract.

47. Plaintiffs are not entitled to exemplary or punitive damages which are unconstitutional and a violation of due
process, equal protection, and all other such laws of the United States and Oklahoma.

48. In the event it is determined that a jury determines that CEC was negligent or legally liable, this defendant is entitled to contribution and/or indemnity from all joint tortfeasors.

49. CEC reserves the right to amend this answer and/or to include cross-claims, counter claims or third party claims upon discovery of additional information and knowledge pursuant to the Oklahoma pleading code.

WHEREFORE, Defendant, Chesapeake Energy Company, hereby requests
Plaintiffs’ Amended Petition be dismissed and that Chesapeake Energy Corporation be dismissed from this action, for an award of costs and a reasonable attorney fee, and for such other relief as this court may deem just and proper.

Grove Worldwide answered as follows:

1-4. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 1-4 of Plaintiffs’ Amended Petition, and therefore denies the same and demands strict proof thereof.

5. With regard to paragraph 5 of Plaintiffs’ Amended Petition, this Defendant admits that Grove is organized under the laws of Delaware and that its products have been placed in the stream of commerce in Oklahoma. Further answering, this Defendant states that the proper name of “The Manitowoc Cranes, Inc.” is actually “Manitowoc Cranes, LLC” and that Manitowoc Cranes, LLC is a Wisconsin corporation.

6-9. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 6-9 of Plaintiffs’ Amended Petition, and therefore denies the same and demands strict proof thereof.

ALLEGED FACTS

10. With regard to paragraph 10 of Plaintiffs’ Amended Petition, this Defendant denies that Manitowoc designed, manufactured or sold the crane which has been made the subject of this litigation. The subject crane as originally manufactured was designed, manufactured and sold by Grove. Further answering, this Defendant denies that the crane was defectively designed or defectively manufactured and demands strict proof thereof. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore denies the same and demands strict proof thereof.

11. With regard to paragraph 11 of Plaintiffs’ Amended Petition, this Defendant admits that the jib on the subject crane can be erected and stowed when no longer needed and that stowing the jib is a task that qualified crane personnel routinely perform. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 11 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

12-14. This Defendant denies the allegations in paragraphs 12-14 of Plaintiffs’ Amended Petition and demands strict proof thereof.

15. With regard to the allegations in paragraph 15 of Plaintiffs’ Amended Petition, this Defendant admits that the instructions for stowing the jib are contained in manuals, general instructions, warnings, and decals. Defendant denies the remaining
allegations in paragraph 15 of Plaintiffs’ Amended Petition and demands strict proof thereof.

16-19.This Defendant denies the allegations in paragraphs 16-19 of Plaintiffs’ Amended Petition and demands strict proof thereof.

20-22. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 20-22 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

23-24. With regard to the allegations in paragraphs 23-24 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 23-24 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

25-29. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 25-29 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT ONE

30-31.With regard to the allegations in paragraphs 30-31 of Plaintiffs’ Amended Petition, This Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-29 of Plaintiffs’ Amended Petition.

32-40. This Defendant denies the allegations in paragraphs 32-40 of Plaintiffs’ Amended Petition and demands strict proof thereof.

COUNT TWO

41. With regard to the allegations in paragraph 41 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-40.
42-48.This Defendant denies the allegations in paragraph 42-48 of Plaintiffs’ Amended Petition and demands strict proof thereof.

COUNT THREE

49-50. With regard to the allegations in paragraphs 49-50 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-48 of Plaintiffs’ Amended Petition.

51-52. This Defendant denies the allegations in paragraph 51-52 of Plaintiffs’ Amended Petition and demands strict proof thereof.

53. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 53 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

54-55. This Defendant denies the allegations in paragraphs 54-55 of Plaintiffs’ Amended Petition and demands strict proof thereof.

COUNT FOUR

56-57. With regard to the allegations in paragraphs 56-57 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-55 of Plaintiffs’ Amended Petition.

58-66. With regard to the allegations in paragraphs 58-66 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this
litigation or any of its components were defective andlor unreasonably dangerous. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 58-66 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT FIVE

67. With regard to the allegations in paragraph 67 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-66 of Plaintiffs’ Amended Petition.

68-74. With regard to the allegations in paragraphs 68-74 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 68-74 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT SIX

75-76. With regard to the allegations in paragraphs 75-76 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-74 of Plaintiffs’ Amended Petition.

77-82. With regard to the allegations in paragraphs 77-82 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous. Defendant is without knowledge or information sufficient to form a belief as to the truth
of the remaining allegations in paragraphs 77-82 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT SEVEN

83. With regard to the allegations in paragraph 83 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-82 of Plaintiffs’ Amended Petition.

84-89. With regard to the allegations in paragraphs 84-89 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous. Further answering, this Defendant denies as against Manitowoc the allegations contained in paragraphs 84-89 of Plaintiffs’ Amended Petition. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 84-89 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT EIGHT

90. With regard to the allegations in paragraph 90 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-89 of Plaintiffs’ Amended Petition.

91-94. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 91-94 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT NINE

95. With regard to the allegations in paragraph 95 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-94 of Plaintiffs’ Amended Petition.

96-101. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 96-101 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT TEN

102-103. With regard to the allegations in paragraphs 102-103 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-101 of Plaintiffs’ Amended Petition.

104-1 07. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 104-107 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT ELEVEN

108. With regard to the allegations in paragraph 108 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-107 of Plaintiffs’ Amended Petition.

109-115. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 109-115 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereot

COUNT TWELVE

116. With regard to the allegations in paragraph 116 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-115 of Plaintiffs’ Amended Petition.

117. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 117 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

118. This Defendant denies the allegations in paragraph 118 of Plaintiffs’ Amended Petition and demands strict proof thereof.

CLAIMED DAMAGES AND REMEDIES

119-120. With regard to the allegations in paragraph 119-120 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-118 of Plaintiffs’ Amended Petition.

121. With regard to the allegations in paragraph 121, this Defendant admits only that any claims of decedent Michael Parsons that may survive are set forth in the statutory and common law of the State of Oklahoma. Defendant denies the remaining allegations in paragraph 121 of Plaintiffs’ Amended Petition and demands strict proof thereof.

122. This Defendant denies the allegations in paragraph 122 of Plaintiffs’ Amended Petition and demands strict proof thereof.

123. This Defendant denies the allegations in paragraph 123 of Plaintiffs’ Amended Petition and demands strict proof thereof.

AFFIRMATIVE DEFENSES

1. Plaintiffs’ Amended Petition fails to state a claim upon which relief may be granted as to this Defendant.

2. Plaintiffs’ Amended Petition fails to state a claim upon which relief may be granted under the Uniform Commercial Code for breach of implied warranties.

3. The incident and/or injuries were caused by the negligence of Brian Gobble, decedent Michael Parsons, and/or third parties over whom this Defendant had no control.

4. This Defendant asserts that the incident was caused by a superseding or intervening cause.

5. This Defendant denies that the product was in any way defective or hazardous and avers that said product was in all respects properly designed, manufactured, distributed, supplied, tested, inspected andlor sold. This product departed the manufacturer’s control equipped with all elements necessary to make it safe and contained no elements making it unsafe and properly equipped with all necessary warnings and instructions for correct and safe use, operation, maintenance, repair and servicing.

6. This Defendant alleges that any defect, if any, was caused solely and wholly by the misuse, abuse, alteration, modification, damage or improper assembly, maintenance, repair, handling, servicing and/or installation of the product and/or fault of others yet unknown.

7. This Defendant provided appropriate product information and warnings to sophisticated purchaserslusers, and this Defendant owed no special duty to provide warnings directly to the Brian Gobble and/or decedent Michael Parsons.

8. The design of the subject product was consistent with the “state of the art” at the time of its design.

9. The benefits of design of the subject product outweighed the inherent risks, if any.

10. The product complied with applicable codes, standards or regulations adopted or promulgated by the United States or any agency of the United States or a state or state agency at the time of its sale.

11. The recovery of punitive damages is contrary to the Constitutions of the United States and the State of Oklahoma.

12. The recovery of punitive damages is limited and governed by 23 O.S.
§9.1.

13. Plaintiffs’ causes of action are barred by the doctrines of waiver, estoppel and laches.

14. The recovery for personal injuries under theories of implied warranty has been merged into the theory and doctrine of manufacturer’s products liability, and except for Uniform Commercial Code application, is no longer viable.

15. This Defendant reserves the right to amend this Answer in accordance with the Oklahoma Pleading Code and the further Order of this Court.

WHEREFORE, PREMISES CONSIDERED, this Defendant prays that Plaintiffs take nothing by way of their Amended Petition and that this Defendant have and recover herein its costs, attorney fees and any further relief which the Court deems just and equitable.

Manitowoc Cranes, LLC Answred as follows to Plaintiffs' Amended Petition:

1-4. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 1-4 of Plaintiffs’ Amended Petition, and therefore denies the same and demands strict proof thereof.

5. This Defendant admits that The Manitowoc Company, Inc. is a Wisconsin corporation and denies the remaining allegations in paragraph 5 of the Amended Petition.

6-9. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 6-9 of Plaintiffs’ Amended Petition, and therefore denies the same and demands strict proof thereof.

ALLEGED FACTS

10. With regard to paragraph 10 of Plaintiffs’ Amended Petition, deny that the subject crane was manufactured under the trade name “Grove”; and affirmatively alleges that the subject crane was designed, manufactured and sold by Grove U.S. LLC. This Defendant denies that The Manitowoc Company, Inc. designed, manufactured or sold the crane which has been made the subject of this litigation. Further answering, this Defendant denies that the crane was defectively designed or defectively manufactured and demands strict proof thereof. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore denies the same and demands strict proof thereof.

11. With regard to paragraph 11 of Plaintiffs’ Amended Petition, this Defendant admits that the jib on the subject crane can be erected and stowed when no longer needed and that stowing the jib is a task that qualified crane personnel routinely perform. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 11 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

12-14.This Defendant denies the allegations in paragraphs 12-14 of Plaintiffs’ Amended Petition and demands strict proof thereof.

15. With regard to the allegations in paragraph 15 of Plaintiffs’ Amended Petition, this Defendant admits that the instructions for stowing the jib are contained in
manuals, general instructions, warnings, and decals. Defendant denies the remaining allegations in paragraph 15 of Plaintiffs’ Amended Petition and demands strict proof thereof.

16-19.This Defendant denies the allegations in paragraphs 16-19 of Plaintiffs’ Amended Petition and demands strict proof thereof.

20-22. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 20-22 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

23-24. With regard to the allegations in paragraphs 23-24 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 23-24 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

25-29. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 25-29 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT ONE

30-31.With regard to the allegations in paragraphs 30-31 of Plaintiffs’ Amended Petition, This Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-29 of Plaintiffs’ Amended Petition.

32-40. This Defendant denies the allegations in paragraphs 32-40 of Plaintiffs’ Amended Petition and demands strict proof thereof.


COUNT TWO

41. With regard to the allegations in paragraph 41 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-40.

42-48. This Defendant denies the allegations in paragraph 42-48 of Plaintiffs’ Amended Petition and demands strict proof thereof.

COUNT THREE

49-50. With regard to the allegations in paragraphs 49-50 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-48 of Plaintiffs’ Amended Petition.

51-52.This Defendant denies the allegations in paragraph 51-52 of Plaintiffs’ Amended Petition and demands strict proof thereof.

53. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 53 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

54-55. This Defendant denies the allegations in paragraphs 54-55 of Plaintiffs’ Amended Petition and demands strict proof thereof.


COUNT FOUR

56-57. With regard to the allegations in paragraphs 56-57 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-55 of Plaintiffs’ Amended Petition.

58-66. With regard to the allegations in paragraphs 58-66 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 58-66 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT FIVE

67. With regard to the allegations in paragraph 67 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-66 of Plaintiffs’ Amended Petition.

68-74. With regard to the allegations in paragraphs 68-74 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 68-74 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT SIX

75-76. With regard to the allegations in paragraphs 75-76 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-74 of Plaintiffs’ Amended Petition.

77-82. With regard to the allegations in paragraphs 77-82 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 77-82 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT SEVEN

83. With regard to the allegations in paragraph 83 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-82 of Plaintiffs’ Amended Petition.

84-89. With regard to the allegations in paragraphs 84-89 of Plaintiffs’ Amended Petition, this Defendant denies that the crane which has been made the subject of this litigation or any of its components were defective and/or unreasonably dangerous. Further answering, this Defendant denies as against Manitowoc the allegations contained in paragraphs 84-89 of Plaintiffs’ Amended Petition. Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 84-89 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT EIGHT

90. With regard to the allegations in paragraph 90 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-89 of Plaintiffs’ Amended Petition.

91-94. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 91-94 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT NINE

95. With regard to the allegations in paragraph 95 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-94 of Plaintiffs’ Amended Petition.

96-101. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 96-101 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT TEN

102-103. With regard to the allegations in paragraphs 102-103 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-101 of Plaintiffs’ Amended Petition.
104-107. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 104-107 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT ELEVEN

108. With regard to the allegations in paragraph 108 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-107 of Plaintiffs’ Amended Petition.

109-115. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraphs 109-115 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

COUNT TWELVE

116. With regard to the allegations in paragraph 116 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-115 of Plaintiffs’ Amended Petition.

117. This Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 117 of Plaintiffs’ Amended Petition and therefore denies the same and demands strict proof thereof.

118. This Defendant denies the allegations in paragraph 118 of Plaintiffs’ Amended Petition and demands strict proof thereof.

CLAIMED DAMAGES AND REMEDIES

119-120. With regard to the allegations in paragraph 119-120 of Plaintiffs’ Amended Petition, this Defendant adopts and incorporates herein, as if fully restated, its responses to paragraphs 1-118 of Plaintiffs’ Amended Petition.

121. With regard to the allegations in paragraph 121, this Defendant admits only that any claims of decedent Michael Parsons that may survive are set forth in the statutory and common law of the State of Oklahoma. Defendant denies the remaining allegations in paragraph 121 of Plaintiffs’ Amended Petition and demands strict proof thereof.

122. This Defendant denies the allegations in paragraph 122 of Plaintiffs’ Amended Petition and demands strict proof thereof.

123. This Defendant denies the allegations in paragraph 123 of Plaintiffs’ Amended Petition and demands strict proof thereof.

AFFIRMATIVE DEFENSES

1. Plaintiffs’ Amended Petition fails to state a claim upon which relief may be granted as to this Defendant.

2. This Defendant asserts that it did not design, manufacture, or sell the product that is the subject of this action.

3. Plaintiffs’ Amended Petition fails to state a claim upon which relief may be granted under the Uniform Commercial Code for breach of implied warranties.

4. The incident and/or injuries were caused by the negligence of Brian Gobble, decedent Michael Parsons, and/or third parties over whom this Defendant had no control.

5. This Defendant asserts that the incident was caused by a superseding or intervening cause.

6. This Defendant denies that the product was in any way defective or hazardous and avers that said product was in all respects properly designed, manufactured, distributed, supplied, tested, inspected and/or sold. This product departed the manufacturer’s control equipped with all elements necessary to make it safe and contained no elements making it unsafe and properly equipped with all necessary warnings and instructions for correct and safe use, operation, maintenance, repair and servicing.

7. This Defendant alleges that any defect, if any, was caused solely and wholly by the misuse, abuse, alteration, modification, damage or improper assembly,
maintenance, repair, handling, servicing and/or installation of the product and/or fault of others yet unknown.

8. This Defendant owed no special duty to provide warnings directly to the Brian Gobble and/or decedent Michael Parsons.

9. The design of the subject product was consistent with the “state of the art” at the time of its design.

10. The benefits of design of the subject product outweighed the inherent risks, if any.

11. The product complied with applicable codes, standards or regulations adopted or promulgated by the United States or any agency of the United States or a state or state agency at the time of its sale.

12. The recovery of punitive damages is contrary to the Constitutions of the United States and the State of Oklahoma.

13. The recovery of punitive damages is limited and governed by 23 O.S.
§9.1.

14. Plaintiffs’ causes of action are barred by the doctrines of waiver, estoppel and laches.

15. The recovery for personal injuries under theories of implied warranty has been merged into the theory and doctrine of manufacturer’s products liability, and except for Uniform Commercial Code application, is no longer viable.

16. This Defendant reserves the right to amend this Answer in accordance with the Oklahoma Pleading Code and the further Order of this Court.

WHEREFORE, PREMISES CONSIDERED, this Defendant prays that Plaintiffs take nothing by way of their Amended Petition and that this Defendant have and recover herein its costs, attorney fees and any further relief which the Court deems just and equitable.


Silvercliffe Construction Company answered as follows:

1. Silvercliffe denies, generally and specifically, each and every material allegation set forth in the Petition except as may be hereafter specifically admitted.

2. In response to the allegations contained in Paragraphs 1 and 7, it is admitted that Silvercliffe is an Oklahoma Corporation. Further, Silvereliffe lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

3. In response to the allegations contained in Paragraphs 2-6, 8 and 9, Silvercliffe lacks sufficient knowledge and
information to admit or deny those allegations, thus all are denied and strict proof thereof is demanded.

4. In response to the allegations contained in Paragraphs 10-20, none of which are directed at Silvercliffe, at this time Silvercliffe lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

5. In response to the allegations contained in Paragraphs 21 and 22, it is admitted that Silvercliffe was the general contractor on the project which hired Rent-A- Crane to provide operated and maintained equipment and qualified crane operators for the project. However, at this time, Silvercliffe lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus, all are denied and strict proof thereof is demanded.

6. In response to the allegations contained in Paragraphs 23 and 24, none of which are directed at Silvercliffe, at this time Silvercliffe lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

7. The allegations contained in Paragraphs 25, 26, 28 and 29, insofar as they relate to Silvercliffe are hereby DENIED. Further, Silvercliffe lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

8. In response to the allegations contained in Paragraph 27, although it is admitted that Silvercliffe as the general contractor did provide a reasonably safe work environment for construction personnel as well as others on Chesapeake’s campus, all remaining allegations are hereby denied and strict proof thereof is demanded.

9. In response to Paragraph 30, Silvercliffe adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

10. In response to the allegations contained in Paragraphs 31-89, none of which are directed at Silvercliffe, at this time Silvercliffe lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

11. In response to Paragraph 90, Silvercliffe adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

12. In response to the allegations contained in Paragraphs 91-94, none of which are directed at Silvercliffe, at this time Silvercliffe lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

13. In respoAse to Paragraph 95, Silvercliffe adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

14. In response to Paragraphs 96 and 97, it is admitted that Silvercliffe entered into a contract and was hired as the general contractor, however, all remaining allegations contained therein are denied and strict proof thereof is demanded.

15. Paragraphs 98 - 101 are denied insofar as they relate to Silvercliffe.

16. In response to Paragraph 102, Silvercliffe adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

17. Although Paragraph 103 contains no spedific allegation against any party, it is denied.

18. In response to the allegations contained in Paragraph 104, although it is admitted that Silvercliffe as the general contractor did provide a reasonably safe work environment for construction personnel, all remaining allegations are hereby denied and strict proof thereof is demanded.

19. The allegations contained in Paragraphs 105-107 are DENIED.

20. In response to Paragraph 108, CEC adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

21. In response to the allegations contained in Paragraphs 109-115, none of which are directed at Silvercliffe, at this time Silvercliffe lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

22. In response to Paragraph 116, Silvercliffe adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

23. In response to Paragraph 117, Silvercliffe lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

24. The allegations contained in Paragraphs 118, insofar as they relate to Silvercliffe are hereby DENIED. Further, Silvercliffe lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus, all are denied and strict proof thereof is demanded.

25. In response to Paragraph 119, Silvercliffe adopts and incorporates by reference all responses set forth in the foregoing paragraphs as though fully set forth herein.

26. In response to Paragraph 120 and 121, Silvercliffe lacks sufficient knowledge and information to admit or deny the allegations contained therein, thus, all are denied and strict proof thereof is demanded.

27. The allegations contained in Paragraphs 122 and 123, insofar as they relate to Silvercliffe are hereby DENIED. Further, Silvercliffe lacks sufficient knowledge and information to admit or deny the remaining allegations contained therein, thus all are denied and strict proof thereof is demanded.

28. Silvercliffe denies that Plaintiffs are entitled to the relief sought and requests the Court deny Plaintiffs’ prayer as stated in the final paragraphs of Count(s) Eight, Nine, Ten, Eleven, Twelve and the final paragraph of the
Amended Petition.

29. Any allegation or averment not specifically admitted is denied.

AFFIRMATIVE DEFENSES

30. Silvercliffe was not negligent.

31. Silvercliffe owed no duty to Plaintiffs.

32. Silvercliffe breached no duty to Plaintiffs.

33. Silvercliffe did not cause the alleged incident as claimed by Plaintiffs or any resulting damages.

34. Silvercliffe is not liable under any cognizable legal theory or claim to Plaintiffs.

35. All actions of Silvercliffe were reasonable and proper.

36. Silvercliffe is not a proper party to this lawsuit and should be dismissed as no one acting on its behalf or under its direction and control was involved in causing the incident as claimed by Plaintiffs.

37. Failure to state a claim upon which relief can be granted.

38. Failure to join necessary and indispensable parties.

39. Jurisdiction is improper.

40. The damages, injuries and losses, if any, claimed by each Plaintiffs resulted from the negligent conduct of Plaintiff Gobble and Decedent Parsons and therefore Plaintiffs are not entitled to recover from Silvercliffe.

41. The damages, injuries and losses, if any, claimed by each Plaintiffs were caused by third parties over whom Silvercliffe exercised no ownership or control.

42. Plaintiff Gobble and Decedent Parsons assumed the risk of any harm or injury from the activities which they negligently and knowingly engaged.

43. Failure to mitigate damages.

44. At the very least, the individual negligence of each Plaintiff Gobble and
Decedent, Parsons is to such a degree as to bar any recovery, or in the alternative, each
Plaintiff can only recover for that percentage of negligence that may be attributable to
Silvercliffe by a jury.

45. No valid,enforceable contract exists between Silvercliffe and Plaintiff Gobble and Decedent, Parsons.

46. Plaintiff Gobble and Decedent, Parsons were not parties to any contract entered into by Silvercliffe.

47. Plaintiff Gobble and Decedent, Parsons were not third party beneficiaries of any contract entered into by Silvercliffe.

48. Silvercliffe did not breach any contractual obligation, warranties and/or duties owed to Plaintiff Gobble and Decedent, Parsons pursuant to any contract entered into by Silvercliffe.

49. Plaintiffs are not entitled to attorney’s fees for breach of contract.

50. Plaintiffs are not entitled to exemplary or punitive damages which are
unconstitutional and a violation of due process, equal protection, and all other such laws of the United States and Oklahoma.

51. In the event it is determined that a jury determines that Silvercliffe was negligent or legally liable, this defendant is entitled to contribution and/or indemnity from all joint tortfeasors.

52. Silvercliffe reserves the right to amend this answer and/or to include cross- claims, counter claims or third party claims upon discovery of additional information and knowledge pursuant to the Oklahoma pleading code.
WHEREFORE, Defendant, Silvercliffe Construction Company, hereby requests Plaintiffs’ Amended Petition be dismissed and that Silvercliffe Construction Company be dismissed from this action, for an award of costs and a reasonable attorney fee, and for such other relief as this court may deem just and proper.


Scott-Macon Equipment of Oklahoma, Inc. answered as follows:

In accordance with 12 O.S.2001, § 2008(B), Scott-Macon denies all allegations in the Amended Petition that are not specifically admitted below (the headings and paragraph numbers referenced below corresponding to those set forth in the Amended Petition). As to each denied allegation, Scott-Macon demands strict proof thereof in accordance with applicable law.

“Jurisdiction and Venue”

1. Scott-Macon admits that the accident that is the basis for the Plaintiffs’ Amended Petition occurred in Oklahoma County and that Scott-Macon has its principal place of business in Tulsa, Oklahoma. Otherwise, Scott-Macon is without knowledge or information sufficient to admit or deny the remaining allegations in paragraph 1.
“Parties”

2-5. Scott-Macon is without knowledge or information sufficient to admit or deny the allegations in paragraphs 2-5, which concern other parties.

6. Scott-Macon denies that it is organized under the laws of the State of Oklahoma; it is organized under the laws of the State of Delaware. Otherwise, Scott-Macon admits the allegations in paragraph 6.

7-8. Scott-Macon is without knowledge or information sufficient to admit or deny the allegations in paragraphs 7 and 8, which concern other Defendants.

9. The allegations in paragraph 9 concerning “John Doe Defendants” are so vague and lacking in specificity that Scott-Macon cannot form a belief as to the truth of the allegations.
“Facts”

10. Scott-Macon admits that Parsons was killed, and that Plaintiffs allege Gobble was injured, in an accident that occurred on or about August 31, 2010, and that the Swing-Away fell from the crane. Scott-Macon admits that it did not manufacture the crane and that Co-Defendant Grove U.S. LLC has identified itself as the manufacturer of the crane. Scott-Macon denies the remaining allegations in paragraph 10.

11. With respect to the first sentence of paragraph 11, Scott-Macon admits that a Swing-Away fell from the boom of the crane. At this time Scott-Macon is without knowledge or
information sufficient to admit or deny the remaining allegations in the first sentence of paragraph 11 and, therefore, denies them. Scott-Macon admits the second and third sentences of paragraph 11.
“The Grove RT913OE Crane’s Jib Design and Manitowoc’s Conduct”

12. The allegations in paragraph 12 regarding design and manufacture of the crane concern other parties, and Scott-Macon is without sufficient knowledge or information to admit or deny same; therefore these allegations are denied. The remaining allegations in paragraph 12 are too vague and argumentative to be admitted; therefore they are denied.

13-14. Scott-Macon denies that the crane was defective or unreasonably dangerous and further denies the remaining allegations in paragraphs 13 and 14.
“The Inadequacy of the Jib Stowage Instructions Contributed”

15. Scott-Macon admits that there is a handbook containing instructions for stowing the Swing-Away that was provided to Rent-A-Crane of Oklahoma, Inc. (“Rent-A-Crane”) and that the crane had decals and warnings. Scott-Macon is without knowledge or information sufficient to admit or deny whether Mr. Parsons read the instructions and warnings. Scott- Macon denies all remaining allegations in paragraph 15.

16. Scott-Macon denies the allegations in paragraph 16.

17-19. Scott-Macon denies the allegations in paragraphs 17-19.
“The Day of the Incident and General Background”

20. Scott-Macon admits the crane was being used in connection with a construction project on Defendant Chesapeake Energy Corporation’s campus. At this time Scott-Macon is without knowledge or information sufficient to admit or deny the remaining allegations in paragraph 20 and, therefore, denies those allegations.

21. Scott-Macon is without knowledge or information sufficient to admit or deny the allegations in paragraph 21 and, therefore, denies those allegations.

22. Scott-Macon admits that it leased the subject crane to Rent-A-Crane. Otherwise, Scott-Macon is without knowledge or information sufficient to admit or deny the remaining allegations in paragraph 22 and, therefore, denies those allegations.

23. Scott-Macon admits that it leased the crane at issue to Rent-A-Crane. Scott- Macon denies all remaining allegations in paragraph 23.

24. Scott-Macon denies the subject crane was in a defective or dangerous condition and denies all remaining allegations in paragraph 24.

“The Role of Chesapeake Energy and Silvercliffe”

25-29. At this time Scott-Macon is without knowledge or information sufficient to admit or deny the allegations in paragraphs 25-29, which concern other parties, and therefore denies those allegations.

“Count One
Strict Products Liability
Defendant Manitowoc”

30. In response to paragraph 30, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

31. Scott-Macon admits that Plaintiffs are attempting to assert a strict products liability claim against Manitowoc. Otherwise, paragraph 31 is denied.

32. Scott-Macon is without knowledge or information sufficient to admit or deny the allegations in paragraph 32, which relate to other parties, and therefore denies those allegations.
33-40. In response to paragraphs 33-40, Scott-Macon denies that the crane was defective Or unreasonably dangerous and further denies the remaining allegations in paragraphs 33-40. Scott-Macon denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.

“Count Two
Failure to Warn
Defendant Manitowoc”

41. In response to paragraph 41, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

42-48. In response to paragraphs 42-48, Scott-Macon denies that the crane was defective or unreasonably dangerous and further denies the remaining allegations in paragraphs 42-48. Scott-Macon denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.

“Count Three
Negligence/Wantonness and Willful Conduct
Defendant Manitowoc”

49. In response to paragraph 49, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

50. Scott-Macon admits that Plaintiffs are attempting to assert a claim against Manitowoc for “negligence, wantonness and willful conduct”; otherwise, paragraph 50 is denied.

51-55. In response to paragraphs 5 1-55, Scott-Macon denies that the crane was defective or unreasonably dangerous and further denies the remaining allegations in paragraphs 51-55. Scott-Macon denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.

“Count Four
Strict Products Liability
Defendant Scott-Macon”

56. In response to paragraph 56, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

57. Scott-Macon admits that Plaintiffs are attempting to assert a claim for strict products liability against
Scott-Macon but denies that such claim has any merit.

58. Scott-Macon admits that as part of its business it has sold, marketed, maintained, and leased certain types of cranes. Scott-Macon denies the remaining allegations in paragraph

58.

59. Scott-Macon denies that the crane in question left the custody and control of Scott-Macon in dangerous or defective condition and further denies all remaining allegations in paragraph 59.

60-64. Scott-Macon denies the allegations in paragraphs 60-64.

65-66. Scott-Macon denies that the crane in question left the custody and control of Scott-Macon in dangerous or defective condition and further denies all remaining allegations in paragraphs 65 and 66. Scott-Macon denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.

“Count Five
Failure to Warn
Defendant Scott-Macon”

67. In response to paragraph 67, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

68. Scott-Macon admits that as part of its business it has sold, marketed, maintained, repaired, and leased certain types of cranes. Otherwise, Scott-Macon denies the remaining allegations in paragraph 68.

69-74. Scott-Macon denies that the crane in question left the custody and control of Scott-Macon in dangerous or defective condition and further denies all remaining allegations in
paragraphs 69-74. Scott-Macon denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.

“Count Six
Negligence/Wantonness and Wififul Conduct
Defendant Scoff-Macon”

75. In response to paragraph 75, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

76. Scott-Macon admits that Plaintiffs are attempting to assert a claim for “negligence, wantonness and willful conduct” against Scott-Macon but denies such claim has any merit.

77. Scott-Macon denies the allegations in paragraph 77.

78. In response to paragraph 78, Scott-Macon admits that Rent-A-Crane and Scott-
Macon’s obligations with respect to the crane are set forth in a Master Crane Rental Agreement.
The Master Crane Rental Agreement is a written document that speaks for itself, and Scott-
Macon denies all allegations in paragraph 78 that are inconsistent with or contrary to that
document. Scott-Macon denies any remaining allegations in paragraph 78.

79. Scott-Macon denies the allegations in paragraph 79.

80. Scott-Macon denies that it sold the crane. The remaining allegations in paragraph
80 are too vague and ambiguous to admit or deny; accordingly, those allegations are denied.

81-82. Scott-Macon denies that the crane in question left the custody and control of Scott-Macon in dangerous or defective condition and further denies all remaining allegations in paragraphs 81 and 82. Scott-Macon denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.

“Count Seven
Breach of Express and Implied Warranties
Defendants Manitowoc and Scott-Macon”

83. In response to paragraph 83, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

84-89. Scott-Macon denies the allegations in paragraphs 84-89 and denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.

“Count Eight
Negligence/Wantonness and
Willful Conduct (Premise Liability)
Defendant Chesapeake Energy Corporation”

90. In response to paragraph 90, Scott-Macon incorporates its corresponding responses to the previous paragraphs.
91-94. The allegations in paragraphs 91-94 concern parties other than Scott-Macon. At this time Scott-Macon is without knowledge or information sufficient to admit or deny those allegations and, therefore, denies them.

“Count Nine
Breach of Contract (Third Party Beneficiary)
Defendants Chesapeake and Silvercliffe”

95. In response to paragraph 95, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

96-101. The allegations in paragraphs 96-101 concern parties other than Scott-Macon. At this time Scott-Macon is without knowledge or information sufficient to admit or deny those allegations and, therefore, denies them.

“Count Ten

Negligence, Wantonness and Willful Conduct
Defendants Chesapeake and Silverciffe”

102. Tn response to paragraph 102, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

103. Scott-Macon admits that Plaintiffs are attempting to assert a claim for “negligence, wantonness and willful conduct”; otherwise, paragraph 103 is denied.

104-107. The allegations in paragraphs 104-107 concern parties other than Scott-Macon. At this time Scott-Macon is without knowledge or information sufficient to admit or deny those allegations and, therefore, denies them.

“Count Eleven
Breach of Contract (Third Party Beneficiary)
Defendant Scott-Macon”

108. In response to paragraph 108, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

109. Scott-Macon admits that it entered into a Master Crane Rental Agreement to provide a crane to Rent-A-Crane in serviceable condition for its use on the Chesapeake project. The Master Crane Rental Agreement is a written document that speaks for itself; Scott-Macon denies all allegations in paragraph 109 that are inconsistent with or contrary to that document. Scott-Macon denies any remaining allegations in paragraph 109.

110. Scott-Macon admits that, under the Master Crane Service Agreement, it was to provide a crane to Rent-A-Crane in serviceable condition. The Master Crane Rental Agreement is a written document that speaks for itself Scott-Macon denies all allegations in paragraph 110 that are inconsistent with or contrary to that document. Scott-Macon denies any remaining allegations in paragraph 110.

111. Scott-Macon incorporates its responses with respect to paragraphs 108-110 above. Scott-Macon admits that it entered into the Master Crane Rental Agreement and agreed to the terms in that agreement. To the extent that the allegations in paragraph Ill are inconsistent with or contrary to that document, Scott-Macon denies those allegations. Any remaining allegations in paragraph 111 are denied.

112. Scott-Macon denies the allegations in paragraph 112.

113. Scott-Macon admits that, under the Master Crane Service Agreement, it was to provide a crane to Rent-A-Crane in serviceable condition. The Master Crane Rental Agreement is a written document that speaks for itself; Scott-Macon denies all allegations in paragraph 113 that are inconsistent with or contrary to that document. Scott-Macon denies any remaining allegations in paragraph 113.

114-115. Scott-Macon denies the allegations in paragraphs 114 and 115 and denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.

“Count Twelve
Loss of Consortium”

116. In response to paragraph 116, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

117. Scott-Macon denies that it has any liability to Plaintiff Dena Parsons for loss of consortium. Otherwise, at this time Scott-Macon is without knowledge or information sufficient to admit or deny the allegations in paragraph 117 and, therefore, denies those allegations.

118. Scott-Macon denies the allegations in paragraph 118 and denies that Plaintiffs are entitled to any of the relief sought in the prayer thereafter.
“Damages and Remedies”

119. In response to paragraph 119, Scott-Macon incorporates its corresponding responses to the previous paragraphs.

“A. Wrongful Death of Michael Parsons and Survivorship Claims”
120. Scott-Macon admits that Plaintiff Dena Parsons is attempting to assert a claim under the Oklahoma WrongfUl Death Act but denies that Scott-Macon has any liability for such claim.

121. Scott-Macon admits that Plaintiff Dena Parsons is attempting to assert a claim under the Oklahoma survival statute but denies that Scott-Macon has any liability for such claims.

122. Scott-Macon denies the allegations in paragraph 122.
“B. Brian Gobble’s Injuries and Damages”

123. Scott-Macon denies the allegations in paragraph 123 insofar as they relate to Scott-Macon. Scott-Macon is without sufficient knowledge or information to admit or deny the allegations in paragraph 123 as to other parties.
“Prayer”
Scott-Macon denies that Plaintiffs are entitled to any of the relief sought in the Prayer on page 31 of the Amended Petition.

B. Scott-Macon’s Defenses

Without assuming any greater burden of proof other than that imposed by applicable law, Scott-Macon pleads the following affirmative defenses, defenses, and/or avoidances:

1. The incident and injuries in question were caused by the acts of Plaintiff Gobble, Decedent Parsons, and/or third parties over whom Scott-Macon had no control.

2. Plaintiffs have failed to join necessary and indispensable parties.

3. Plaintiffs’ recovery is barred and/or reduced by the negligence of Plaintiff Gobble and/or Decedent Parsons.

4. Plaintiffs’ claims are barred by the doctrine of comparative fault.

5. Plaintiffs’ claims are barred by the doctrine of voluntary assumption of a known risk.

6. The incident and injuries in question were the result of a superseding and/or intervening cause or causes.

7. Scott-Macon denies that it (including its agents, servants, and employees) committed any act of negligence that caused or contributed to the Plaintiffs’ alleged injuries.

8. The alleged acts and omissions of Scott-Macon were not the producing and/or proximate cause of the alleged damages.

9. In the event that it is determined that Scott-Macon committed any act or omission in connection with the accident in question, then those acts and/or omissions established a “mere condition” and were not the “direct cause” of any accident that caused injury to Plaintiffs.

10. Any products provided by Scott-Macon were fit for the purposes intended, were not defective, and were not unreasonably dangerous.

11. Plaintiffs’ claims against Scott-Macon are barred by the doctrine of misuse of product by parties over whom Scott-Macon had no control.

12. Scott-Macon’s lease of the crane at issue was a “bare rental” that did not entail any obligation to train, supervise, warn, and/or provide any operator of the crane.

13. Plaintiff Gobble and Decedent Parsons were neither parties to nor third-party beneficiaries of any contract with Scott-Macon.

14. Plaintiffs’ claims are barred in whole or in part by failure to mitigate damages.

15. Plaintiffs’ claims are barred in whole or in part by the terms of the Master Crane Rental Agreement between Scott-Macon and Rent-A-Crane, including that Agreement’s disclaimer of warranties and limitation of remedies, including the exclusion of liability for indirect, incidental, consequential, or special damages.

16. Imposing joint and several liability on Scott-Macon in this case is unconstitutional and violates the provisions of the United States Constitution and the Oklahoma Constitution, including but not limited to Scott-Macon’s right to due process and equal protection under the law.

17. The Petition fails to state a claim against Scott-Macon on which relief may be granted.

18. Scott-Macon pleads the statutory limits on punitive damages under 23 O.S. § 9.1.

19. An award of punitive or exemplary damages in this action would violate Scott- Macon’s rights to both procedural and substantive due process under the Fifth and Fourteenth Amendments to the United States Constitution and the Constitution of the State of Oklahoma in that:

A. The standards under which such claims are submitted are so vague as to be effectively meaningless and threaten the deprivation of property for the benefit of society without the protection of fundamentally fair procedures;

B. The highly penal nature of punitive damages threatens the possibility of excessive punishment and almost limitless liability without the benefit of fundamentally fair procedures and limitations;

C. The introduction of evidence of financial worth is so prejudicial as to impose liability and punishment in a maimer bearing no relation to the extent of injury;

D. Oklahoma law does not place a reasonable constrain on the jury’s discretion when considering punitive damages;

E. Oklahoma law does not provide sufficient post-trial procedures and standards, at the district court level, for scrutinizing a punitive damage award; and

F. Oklahoma law is not sufficiently established for adequate appellate review of punitive damage awards.

20. An award of punitive or exemplary damages in this action would violate Scott- Macon’s right to protection from “excessive fines” as provided in the Eighth Amendment of the United States Constitution and the Constitution of the State of Oklahoma.

21. Scott-Macon reserves the right to amend or modify this Answer in accordance with the Oklahoma Pleading Code and any scheduling order entered by the Court.

WHEREFORE, PREMISES CONSIDERED, Scott-Macon respectfully prays that this Honorable Court enter judgment that Plaintiffs take nothing; dismiss Plaintiffs’ suit on the merits with prejudice; grant Scott-Macon its costs; and grant Scott-Macon such other and further relief, legal or equitable, special or general, to which it may show itself entitled.

II. SCOTT-MACON’S CROSS-CLAIM

1. The caption of the Petition refers to both “The Manitowoc Cranes, Inc.” and “Grove Worldwide, L.L.C.” as Defendants. However, the text of the Petition does not identify Grove Worldwide, L.L.C. as a Defendant. On November 28, 2011, an Answer was filed by “Grove U.S. LLC” stating that it was “misdesignated” as “Grove Worldwide, LLC” and
improperly sued as “Manitowoc Cranes, Inc.” Grove U.S. LLC states in its Answer that it designed, manufactured, and sold the crane at issue.

2. Reserving the right to amend after farther discovery, Scott-Macon asserts this Cross-Claim against Grove U.S. LLC, which has identified itself as the manufacturer of the subject crane.

3. Scott-Macon merely leased the subject crane to Rent-A-Crane, but Scott-Macon did not design or manufacture the crane. While Scott-Macon denies the crane was defective in any way, it seeks indemnification from the manufacturer of the crane in question to the full extent authorized by applicable law, including Title 12 O.S. § 832.1. This includes, without limitation, any damages for which Scott-Macon may be adjudged liable to Plaintiffs, court costs and other reasonable expenses, reasonable attorney fees, and any reasonable damages incurred by Scott-Macon to enforce its right to indemnification.

4. Scott-Macon reserves the right to amend this Cross Claim and/or to file a Third- Party Petition based on additional
facts learned in discovery in accordance with the Oklahoma Pleading Code and any scheduling order entered by the Court.

WHEREFORE, Defendant and Cross-Claimant Scott-Macon demands judgment against the Grove Companies for indemnification for all sums Scott-Macon may be required to pay as a result of Plaintiffs’ claims, as stated above, and for such further relief against the Grove Companies, at law or in equity, general or special, to which it may be justly entitled.


Grove U.S., LLC Answered to Defendant Scott-Macon Equipment Oklahoma, Inc.'s Cross Claim as follows:

1. Paragraph 1 makes no allegations against Grove and therefore requires no answer.

2. Paragraph 2 makes no allegations against Grove and therefore requires no answer.

3. With regard to paragraph 3 of Scoff-Macon’s Cross-Claim, inasmuch as Scott-Macon expressly acknowledges that the crane was not defective in any way, there
is no basis for indemnification. Grove is without knowledge or information sufficient to
form a belief as to the truth of the remaining allegations in paragraph 3 of Scoff-Macon’s Cross-Claim, and therefore, denies the same and demands strict proof thereof.

4. Paragraph 4 makes no allegations against Grove and therefore requires no answer.

AFFIRMATIVE DEFENSES

1. Grove hereby incorporates by reference the affirmative defenses included in its answer to Plaintiffs’ Amended Petition.

2. Grove denies that a breach of any duty, if any, owed to any party named in Plaintiffs’ Amended Petition, caused or contributed to any damages to the Plaintiff.

3. Scoff-Macon fails to state a claim for which relief can be granted.

4. Plaintiffs’ alleged injuries are the result of causes independent of, and unrelated to Grove, including, but not limited to, any alterations or modifications made to the subject crane by Scoff-Macon which was done without Grove’s knowledge or authorization.

5. Grove denies that there is any basis for implied or contractual indemnity in this case.

6. Grove expressly reserves the right to amend its Answer to Scoff-Macon’s Cross Claim to allege additional defenses as discovery progresses.

WHEREFORE, PREMISES CONSIDERED, Grove prays that Defendant ScottMacon take nothing by way of its Cross-Claim and that Grove have and recover herein its costs, attorney fees and any further relief which the Court deems just and equitable.

Chesapeake Moved for Summary Judgment in its favor asserting the following:

Pursuant to Title 12 OS. § 2056 and Rule 13 of the Rules for the District Courts,
Defendant, Chesapeake Energy Corporation (“Chesapeake”) moves for judgment as a
matter of law on all claims of Plaintiffs, Brian Gobble (“Gobble”) and Dena Parsons,
Individually and as Special Administrator of the Estate of Michael Parsons, Deceased
(“Administratrix”) (collectively “Plaintiffs”). Even taken in a light most favorable to the
Plaintiffs, the facts establish Chesapeake is entitled to judgment as a matter of law.

INTRODUCTION

This lawsuit flows from a crane accident that occurred on Chesapeake’s Oklahoma City corporate campus on August31, 2010. Following hail storms in May 2010, Chesapeake retained Silvercliffe Construction Company (“Silvercliffe”) to perform roof repairs at Chesapeake’s Oklahoma City corporate campus. Silvercliffe hired Rent-A-Crane (“RAC”) as a sub-contractor to install and operate cranes necessary for the work to be performed. Gobble and Administratrix’s decedent, Michael Parsons (“Parsons”) were experienced crane operators employed by RAC. Gobble was injured and Parsons was killed when a piece of the crane, the jib extension (sometimes called a jib” or ‘boom extension”), fell upon them.

The relevant persons and entities to this matter include:

• Brian Gobble — Crane operator employed by Rent-A-Crane and injured in the subject accident. Mr. Gobble is a Plaintiff to these proceedings.

• Michael Parsons — Crane Operator employed by Rent-A-Crane who died from injuries incurred in the subject accident. Mr. Parson’s estate is a Plaintiff to these proceedings.

• Chesapeake - The owner of the property where the accident occurred.

• Silvercliffe - The independent contractor hired by Chesapeake to complete the roof repairs.

• Rent-A-Crane - The sub-contractor retained by Silvercliffe to provide cranes and crane operators necessary for the roof repairs.

• Scott-Macon Equipment Oklahoma, Inc. - The company who provided the crane to Rent-A-Crane.

• Grovel Manitowoc Cranes, Inc. - The manufacturer of the subject crane provided by Scott Macon to Rent-A-Crane.

SUMMARY JUDGMENT STANDARDS

Chesapeake seeks summary judgment on all of Plaintiffs’ claims. The purpose of summary judgment is to relieve the courts of the burden of trying cases where issues cannot be supported factually, and to avoid the unnecessary expense of time and money by the parties and the Court. A defendant moving for summary judgment is entitled to prevail upon a showing that there is no substantial controversy as to any material fact necessary to the plaintiff’s cause of action. Stephen v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42, 627 P.2d 439, 441. A material fact tends to prove or disprove an element of the case. Smith v. Farmers Co-op Ass of Butler, 19920K 11, ¶ 8, 825 P.2d 1323. Once a defendant has shown there is no substantial controversy as to any material fact, the plaintiff has the burden of providing evidence to justify trial of the issue. Stephen at 441. If the plaintiff cannot meet this burden, the defendant is entitled to judgment as a matter of law and the court must render summary judgment in favor of the moving party. Hutchins v. Silicone Specialties, Inc., 1983 OK 70, 881 P.2d 64, 66.

Mere contentions are insufficient to create a substantial controversy when the party moving for summary judgment has introduced evidence showing the existence of facts which would preclude recovery by the party against whom the motion is made. Mengel v. Rosen, 1987 OK 23, ¶ 9, 735 P.2d 560. Where the summary judgment record demonstrates want of a material element of a plaintiffs claim, summary judgment is properly rendered for the defendant. Shephard v. Compsource Oklahoma, 209 P.3d 288 (OkIa. 2009).

STATEMENT OF UNDISPUTED MATERIAL FACTS

1. Following hail storms in May 2010, Chesapeake retained Silvercliffe to perform roof repairs at Chesapeake’s Oklahoma City corporate campus. See Amended Petition.

2. A June 7, 2010 Master Service Agreement (“MSA”) memorializes the relationship between Chesapeake and Silvercliffe. See Ex. 1, MSA.

3. Chesapeake and Silvercliffe are the only named parties to the MSA. See Ex. 1, p.1,
25.

4. Silvercliffe served as an independent contractor for Chesapeake. See Ex. 1, p. 9,
4.0.

5. Silvercliffe had sole authority to direct the details of the work to be performed at the Chesapeake campus. Id.

6 . By the MSA, Chesapeake specifically waived the right to supervise or instruct Silvercliffe or its subcontractors in the performance of the work. Id.

7 . By the MSA, Silvercliffe had direct control of the project. Id.

8 . By the MSA, Silvercliffe had sole authority to retain sub-contractors to perform work. SeeEx.1, ¶11.0.

9 By the MSA, Silvercliffe was solely responsible for the safety of its employees, subcontractors, consultants and agents, as well as its subcontractor’s’ employees and agents and their respective invitees. See Ex. 1, ¶1 12.0.

io. on July 8, 2010 RAC provided a bid to Silvercliffe to render services as a as Silvercliffe’s sub-contractor providing cranes and crane operators necessary for the repairs at Chesapeake’s campus. See Ex. 2, RAG 7/8/2010 Bid.

11. As Silvercliffe’s sub-contractor, RAC installed and operated cranes on Chesapeake’s campus as part of the roof repair. Id.; see also Amended Petition, p.
8, ¶2O-22.

12. Gobble and Parsons were RAG employees working as crane operators. See Ex. 3, Form 3’s.

13. On August31, 2010, Gobble and Parsons were in the course and scope of Rent-A- Crane’s employment. Id.

14. On August31, 2010, Parsons was killed and GobbEe was injured when the jib they were attempting to store on their crane fell upon them. See Ex. 4, Amended Petition, p. 3, 1110.

ARGUMENT & AUTHORITY

Plaintiffs claims against Chesapeake sound in tort and contract. They are doomed ab initlo. Plaintiffs’ untenable legal theories against Chesapeake are fit for summary judgment. Specifically, Plaintiffs claims for: (1) breach of a contract to which they are not a party; (2) inappropriately pled negligence; and (3) premises liability, must be disposed of as a matter of law.

I. THE “INDEPENDENT CONTRACTOR DOCTRINE” BARS PLAINTIFFS’ CLAIMS

Plaintiffs’ theories are precluded by the Independent Contractor Doctrine. First, the
enforceable MSA governs the work being performed and specifically identifies Silvercliffe as an Independent Contractor. Second, Oklahoma case law establishes that no duty exists between Chesapeake and Plaintiffs. Third, no evidence supports a credible argumentthat Chesapeake attempted to direct the roof repairs. Plaintiffs have no colorable claims against Chesapeake.

An independent contractor is one who agrees to perform a certain service without the control, supervision, or direction of his employer in all matters connected with the performance of the service except the result of the product of the work. World Publishing Co. v. Smith, 195 OK 691, 161 P.2d 861, 862 (1945). The common law rule precludes employer liability for the negligent acts or omissions of an independent contractor which occur during the performance of the service. Hudgens v. Cook indus., Inc., 1973 OK 145, 521 P.2d 813.

In 1973 the Oklahoma Supreme Court unanimously adopted the following rule:

One who engages an independent contractor to do work for him, and who does not himself undertake to interfere with or direct that work, is not obligated to protect the employees of the contractor from hazards which are incidental to or part of the very work which the independent contractor has been hired to perform.

See Hatley v. Mobil, 1973 OK 42, 512 P.2d 182 (citations omitted), attached as Ex. 5.
Hatley and long standing Oklahoma law preclude Plaintiffs’ claims against Chesapeake.

A. The MSA Defines and Controls the Relationships Between its Parties The parties to the MSA explicitly agreed that Silvercliffe undertook the roof repairs
as an independent contractor. Chesapeake cannot be held liable for the acts or omissions of its independent contractor or its sub-contractors which may have given rise to this accident. The MSA clearly establishes that Chesapeake hired Silvercliffe as an independent contractor:

4.0 INDEPENDENT CONTRACTOR RELATIONSHIP

In the performance of any work by Contractor for Company, Contractor shall be deemed to be an independent Contractor, with the authority and right to direct and control all of the details of the work, Company being interested only in the results obtained. However, all work contractor related shall meet the approval of Company and shall be subjected to the general right of inspection. Company shall have no right or authority to supervise or give instructions to the employees, agents, or representative of Contractor, and such employees, agents or representatives at all times shall be under the direct and sole supervision and control of Contractor. Any suggestions, advice or directions given by Company or its employees to Contractor or its employees shall in no way establish or be evidence of an intent to create a master and servant or principal and agent relationship between Company and Contractor. It is the understanding and intention of the parties hereto that no relationship of master and servant or principal and agent shall exist between Company and the employees, agents or representatives of Contractor, and that all work or services covered hereby shall be performed at the sole risk of the Contractor.

See Ex. 1, p. 9, ¶ 4.0 (emphasis added). The plain text of the MSA shows Silvercliffe worked as Chesapeake’s independent contractor. As contracted for, Silvercliffe was solely responsible for the safety of the project:

12.0 CONTRACTOR’S SAFETY RESPONSIBILITIES

12.1 [Silvercliffe] agrees to and shall be solely responsible for the safety of its employees, subcontractors, consultants and agents, as well as its subcontractor’s employees and agents and their respective invitees and
to insure safe operations and safe operation of any machinery or equipment provided by contractor or its subcontractors.
See Ex. 1, p. 21, ¶ 12.0. Under the MSA, Chesapeake had no duty relating to the safety of RAC’s “operation of machinery or equipment.” Id. These sophisticated business entities reduced the nature of their relationship into a contract with the intent that the MSA “shall control and govern any and all performance of services ... by {Silvercliffe].” See Ex. 1, p. 4,

111.1. Chesapeake respectfully requests that the Court honor the contract, and grant summary judgment in its favor.
The Hatley v. Mobil decision is instructive. In that case, Oklahoma’s highest court held that an employer was not liable for injury to its independent contractor’s employee because the injury was sustained in the course of the contractor’s performance of the very duties it had contracted to perform. There, Mobil sold Pan Crane a telephone system consisting of poles, wires and other property located on an easement owned by Mobil. Hatley at 183. As part of the sale, Pan Crane was to remove the telephone system. As in our case, Mobil and Pan Crane negotiated a hold harmless agreement before work was initiated in which Pan Crane assumed responsibility for the methods chosen to and the risks and hazards inherent in removing the system. Id. at 184. Hatley was a Pan Crane employee who fell to the ground from a telephone pole while removing part of the system. Id. Like our Plaintiffs, Hatley sued his employer (Pan Crane) in workers’ compensation, and thereafter sued the owner of the property on which he was injured in district court. Id. at 185.

Hatley found that no duty existed between Hatley and Mobil, and upheld the trial
court’s judgment for Defendants. The Hatley court pointed to two main factors in finding for Mobil: (1) it owed no duty to protect its contractor from risks connected to the very defects the contractor has undertaken to repair; (2) Mobil did not attempt to direct those repairs. Here, RAG contracted to maintain and operate the crane and the accident happened during those activities and Chesapeake did not director interfere — or having anything at all to do with — the crane maintenance. Summary judgment is appropriate.

B. No Duty to Prevent an Accident Incidental to RAC’s Work

Because stowing the crane jib is inherent to Plaintiffs’ employment as crane operators, Plaintiffs cannot reasonably argue that the hrard which caused their harm was not incidental to their work. Chesapeake is in the oil and gas exploration company, not the roofing business. So, they hired Silvercliffe to perform the repairs. See Ex. 1. The companies negotiated a contract memorializing their relationship on June 7, 2010. See Ex.

1. Silvercliffe is in the roofing business, but not the crane business. For that reason, Silvercliffe sought a bid from RAC to “provide operated and maintained equipment at Chesapeake Energy Corporation to lift material and personnel baskets for roofing and siding work.” See Ex. 2. The crane operation and any dangers therefrom were an integral part of the specific task RAC was hired to perform. Plaintiffs’ claims fall short.

C. The “Interference” Exception Doctrine is Inapplicable

In an attempt to salvage a claim, Plaintiffs are forced to argue Chesapeake somehow interfered with the crane operation. Unfortunately for Plaintiffs, the record lacks any evidence supporting that notion.
As our Plaintiffs are forced to do, the Hatley plaintiff argued that Mobil attempted to
‘interfere with or direct” the work being performed in an effort to circumvent the “Independent Contractor Doctrine.” Id. at 186. In Hatley, the property owner’s employee was actively participating in the work at the time of the accident. And, some testimony alleged the property owners employee gave instructions about the time constraints on the work to be performed. Id. at 187-88. The Hatley court considered even that level of participation insufficient to establish an attempt to interfere or direct the plaintiffs work. This Court should follow suit, and direct summary judgment for Chesapeake.

Nothing in the record indicates Chesapeake’s employees participated in the roof repairs or the crane’s maintenance and operation. In Hatley, even the fact that a Mobil employee was actively participating in the physical work at the time of the accident could not establish “interference” with the independent contractor. Not only did Chesapeake not participate in or interfere with the work, in the MSA it specifically disavowed any control over Silvercliffe’s employees and sub-contractors. See Ex. 1, ¶4.0,1112.0. Nothing but Plaintiffs’ bald assertions will support their claims that Chesapeake “interfered” with their independent contractor’s roof repair project. As stated above, mere assertions do not create a disputed material fact sufficient to defeat summary judgment.
Because they must, Plaintiffs’ counsel will argue that Chesapeake retained control over the repairs as justification as to why the long standing “Independent Contractor Doctrine” should be ignored. The MSA contemplates such a scenario, and safeguards against any allegations that a future plaintiff might make as it relates to Chesapeake’s “control” over the repairs. It notes, “Any suggestions, advise or directions given by [Chesapeake] or its employees to [Silvercliffe] or its employees shall in no way establish or
be evidence of an intent to create a master and servant or principle and agent relationship between Chesapeake and Silvercliffei’ See Ex. 1, ¶ 4.0.

Plaintiffs’ claims of “interference” are both unsubstantiated and unimportant. Chesapeake denies any control over the details of the work being performed. But, even assuming arguendo Chesapeake gave suggestions on lighting or operating times, the parties to the MSA recognized it was not evidence of any control over the project generally. See Ex. 1, ¶ 4.0. The Independent Contractor Doctrine disposes of this lawsuit.

II. ADDRESSING PLAINTIFFS’ SPECIFIC LEGAL THEORIES

Even if the “Independent Contractor Doctrine” did not serve to dispose of Plaintiffs’ claims against Chesapeake, their claims still fail for want of essential elements.

A. Plaintiffs’ Third-Party Beneficiary Contract Claim Must Fail

Plaintiffs plead a breach of contract claim against Chesapeake. Plaintiffs’ theory that Chesapeake breached the MSA and this somehow harmed Plaintiffs is untenable. To prevail on their breach of contract claims, Plaintiffs must prove: (1) formation of a contract between Chesapeake and Plaintiffs; (2) Chesapeake somehow breached that contract; and (3) the Plaintiffs suffered damages as a direct result of the breach. OUJI 23.1. Because Plaintiffs will be unable to prove any of these necessary elements, the breach of contract claims are fit for summary judgment.

Plaintiffs, RAC employees, struggle to make out a contract claim by asserting they are third party beneficiaries of the MSA between Chesapeake and Silvercliffe. No evidence supports Plaintiffs’ claim that Parsons and Gobble were third party beneficiaries to the MSA. And, even if Parsons and Gobble were third party beneficiaries to the MSA, it
is irrelevant and unimportant. No evidence exists that Chesapeake breached the contract. Further, no evidence will link any theoretical breach of contract to the harm that befell Plaintiffs.

i. Canons of Construction

The MSA was the “entire agreement” between Chesapeake and Silvercliffe for the roof repairs, and is a valid Oklahoma contract. See Ex. 1, ¶ 17. Methods for interpreting Oklahoma contracts are memorialized in law. “All contracts, whether public or private, are to be interpreted by the same rules, except as otherwise provided by law.” 15 OS. § 151 see also Frensley v. White, 208 OkIa. 209, 254 P.2d 982, 985 (1953). “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” 15 0.5. § 154. “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible ....“ 15 0.5. § 155. The interpretation of a contract should not be presented to the jury unless the court determines that the contractual language is ambiguous. See Corbett v. Combined Comm. Corp. Of Okla., Inc., 654 P.2d 616, 617 (OkIa. 1982) (“If the language of a contract is clear and without ambiguity, the Court is to interpret it as a matter of law.”). Plaintiffs ask the Court to perform an inappropriate post hoc contractual analysis disregarding the intent of the parties, the plain language of the contract at issue, and Oklahoma law.

ii. No Contractual Relationship Between Plaintiffs and Chesapeake The Plaintiffs have no privity of contract. Plaintiffs claim to be third party

beneficiaries of a contract that makes no mention of them. See Ex. 1. Though it is unnecessary for a party to be specifically named in a contract to enforce his or her rights, to do so requires that the contract was made expressly for the benefit of a third person. Keel v. Titan Const Corp., 1981 OK 148; 639 P.2d 1228, 1231. “‘[E]xpressly’ means ‘in an express manner; n direct or unmistakable terms; explicitly; definitely; directly.”1 By its plain language, the MSA was not expressly made for the benefit for anyone besides the parties thereto.

a. No Evidence Plaintiffs Intended Beneficiaries

The primary issue in a case where the suing plaintiff claims third-party beneficiary status is whether the direct parties to the contract intended the third party to have such status. Great Plains Federal Sat’, and Loan Ass’n v. Dabney, 846 P.2d 1088, 1093 (OkIa. 1993) (citations omitted). To the extent any incidental benefit from the MSA was bestowed upon Gobble or Parsons, it does not make them third party beneficiaries to the agreement. Id. Nothing in the MSA evidences that Chesapeake and Silvercliffe intended to provide an enforceable legal right to RAC, much less its individual employees. See Ex. 1. The MSA specifically provides that Silvercliffe, not Chesapeake, had sole discretion to select subcontractors as necessary. See Ex. 1, p. 21, ¶ 11.2. Further, any subcontractors Silvercliffe elected to retain were the sole liability of Silvercliffe. Id. at ¶112.0. Another reason Plaintiffs will never establish RAC’s employees were intended beneficiaries of the MSA is the reality that RAG had not even bid on the job until a month after the contracts formation. See Ex. 1 cf Ex. 2 (The MSA was executed 6/7/2010; RAC’s bid to Silvercliffe is dated 7/8/10). Because the actual parties did not intend to provide Parsons and Gobble with enforceable rights under the MSA, they cannot be deemed third party beneficiaries to the contract under Oklahoma law.

iii. No Identifiable Breach of Contractual Duty

As discussed above, Plaintiffs will be unable to prove the existence of a valid contract to which they were a party. Even assuming arguendo Plaintiffs were somehow third party beneficiaries to the MSA, their breach of contract claims would still be fit for summary judgment. Chesapeake had no duty to guarantee that Silvercliffe’s subcontractors would not be harmed by their own equipment. See Ex. I at ¶12.0. Because no duty was owed, there can be no breach.
iv. Plaintiffs Damages Unrelated to a Theoretical Breach
No evidence establishes how a theoretical breach of the MSA between Chesapeake and Silvercliffe somehow caused Plaintiffs harm. Plaintiffs will be equally unable to prove their harm was “a direct result of the breach’ as required by OUJI 23.1. See OUJI 23.1.

B. Plaintiffs’ Negligence Theories are Inappropriate and Unsupported

Plaintiffs’ tort theories against Chesapeake are likewise unsupportable. Plaintiffs shotgun negligence claims ignore well established law and lack factual support. Plaintiffs’ negligence theories are a legal impossibility fit for summary judgment.

i. Any Negligence Claims Must be Based Upon Premises Liability The mere fact that an accident occurs carries no presumption of negligence.
Lowden v. Van Meter, 181 OK 210, 73 P.2d 424 (OkIa. 1937). Plaintiffs seek to attach liability to Chesapeake for either preriiises liability or the acts and omissions of unidentified agents. Plaintiffs’ Count 8 alleges “NegligenceiWantonness and Willful Conduct (Premises Liability)” against Chesapeake. See Exhibit 4, Amended Petition at p.23, ¶ 90-94. Plaintiffs’ Count 10 alleges “Negligence, Wantonness and Willful Conduct” against Chesapeake. Id. at p.26, ¶111 102-107. Oklahoma law does not afford separate negligence theories for harms related to “acts” and those caused by “conditions” upon an owner’s premises.

Plaintiffs’ theories disregard established law mandating that Plaintiffs’ claims must be evaluated under theories of premises liability. “A different rule of liability for negligent acts and for negligence in maintaining conditions would clearly distort the common law symmetry and the policy underlying its time-honored rules.” Sutherland v. Saint Frances Hospital, Inc., 1979 OK 18, 595 P.2d 780, 783. The Oklahoma Supreme Court recently affirmed the longstanding rule.2 Plaintiffs’ negligence claims against Chesapeake must be evaluated solely through the lens of premises liability. The doctrine of stare decisis and generations of common law preclude Plaintiffs’ multi-pronged negligence theories.

a. Premises Liability Generally

An independent contractor doing work on another’s premises is an invitee in Oklahoma. Davis v. Whitsett, 435 P.2d 592 (OkIa. 1967). Chesapeake’s independent contractor, Silvercliffe, retained sub-contractor, RAC, to assist in the repairs. In turn, RAC hired Parsons and Gobble to operate cranes necessary for the job. An invitee is one who possesses an invitation to be upon the premises, whether express or implied. St Louis- San Francisco Ry. Co. v. Williams, 176 OK 465, 56 P.2d 815 (OkIa. 1936). Where there is a common interest or mutual advantage an invitation is inferred; giving rise to the term “business invitee.” C.R. Anthony Co. v. Williams, 185 OK 564, 94 P.2d 836 (OkIa. 1939).

The Oklahoma Supreme Court has defined the duties owed by property owners to business invitees,

[A] business invitor has a duty to exercise reasonable care to prevent injury to an invitee, but the invitor owes no duty to protect against hazards that are open and obvious. Likewise, the invitor is not a guarantor of the safety of its invitees.

Dover v. WH. Braum, Inc., 2005 OK 22, 111 P. 3d 243, 245 (OkIa. 2005) (citations omitted). Our state’s highest court makes clear: an owners’ duty is only to protect against “defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee and would not be observed by him in the exercise of ordinary care.” Id. at 246; see also Zagal v. Truckstops Corp. of Amer., 1997 OK 75, 948 P.2d 273, 274 (OkIa. 1997). The invitor is “under no duty to keep [its] premises free from obvious dangers,” nor to warn about dangers that are “readily apparent and observable.” Billings v. Wal-Mart Stores, Inc., 1992 OK CIV APP 102, 837 P.2d 932, 933 (OkIa. Civ. App. 1992). It is beyond belief that a bright yellow 130-ton crane, operated exclusively by the Plaintiffs themselves, amounted to a hidden danger.

b. No Duty to Warn of Obvious Danger

“If the hazard . . . was known or should have been observed by the invitee, the
invitor has no duty to alter its premises or warn.’ Dover WI-I. Bra urn, Inc., 2005 OK 22, 111 P. 3d 243, 245 (OkIa. 2005) (citations omitted). In this case, the hazard was a bright yellow 130-ton crane operated by Gobble and Parsons as part of their employment with RAC. See Ex. 2; see also Ex. 6, Photo 3237. In matters such as these, it is appropriate for the Court to determine as a matter of law that an alleged danger is open and obvious. See e.g., Southerland v. Wal-Mart Stores, Inc., 11930K CIVAPP 12,848 P.2d 68 (OkIa. 1993) (Concluding that the danger of a bright orange extension cord on a white tile floor was open and obvious, even if unobserved by Plaintiff.). Not only was the alleged danger unobscured, it was under the exclusive control of Gobble and Parsons. And, it had a large decal which read: “TO AVOID DEATH OR SERIOUS INJURY: Follow procedures in load chart, safety, and operation manuals during erection, stowage and use of boom extension.” See Ex. 7, Photo of Decal. If the crane amounted to a hidden danger, it was one created by Plaintiffs’ themselves. No evidence shows Chesapeake failed to warn of an unknown danger.

ii. Standard Negligence Claims are Unsupportable

As discussed above, Plaintiffs’ claim for negligence against Chesapeake as set forth in “Count 10” of Plaintiffs’ Amended Petition is a legal impossibility because any negligence claim from Plaintiffs must be evaluated as a premises liability theory. But, even if the Court concludes that Plaintiffs’ negligence theory is appropriate, such a claim cannot be supported by the evidence and must fail.

The essential elements for negligence are: (1) a duty owed by a defendant to protect a plaintiff from injury, (2) a failure to properly exercise or perform that duty, and (3) injuries
to plaintiff proximately caused by defendant’s failure to exercise his duty of care. McKeIIips v. St. Francis Hosp., Inc., 19870K 69,741 P.2d 467,470. Plaintiffs’ negligence claims are fatally flawed for want of duty and causation,

a. No Duty of Care Owed to Plaintiffs by Chesapeake

The existence of a duty of care is the threshold question in any negligence action. Lowea’yv. EchostarSatellite Corporation, 2007 OK 38, ¶12, 160 P.3d 959, 964. Whether a defendant owed a plaintiff a duty of care is a question of law for the court in a negligence action. Delbrel v. Doenges Brothers Ford, Inc., 1996 OK 36, ¶7, 913 P.2d 1318, 1320. Importantly, the existence of a duty depends on the relationship between the parties and the general risks involved in the common undertaking. Union Bank of Tuscon v. Griffin, 1989 OK 47, 771 P.2d 219. As discussed above, the only duty owed Plaintiffs by Chesapeake were those owed to business invitees. Chesapeake owed no other duties to Plaintiffs.

b. No Causal Nexus

Because the proximate cause must be the efficient cause that sets in motion the chain of circumstances leading to the injury, Tomlinson v. Love’s County Stores Inc., 1993 OK 83, 854 P.2d 910, 916, Plaintiffs’ negligence claims against Chesapeake must fail. Plaintiffs vaguely allege that Chesapeake failed to provide adequate lighting to Plaintiffs to perform their work. See Ex. 4, Amended Petition at p. 24, J 92, p. 26, ¶ 104. Again, Plaintiffs’ assertions are meaningless. Any duty to provide any equipment for the job is placed upon Silvercliffe by the MSA. See Ex. 1, p. 21, 1
2. Even if Chesapeake had a duty to provide its general contractor’s, sub-contractor’s employees’ lights to perform the roof
repairs, which it did not, nothing in the record indicates lighting somehow caused the accident at issue. No duties existed, and none were breached. Plaintiffs’ claims against Chesapeake should be denied in whole.
CONCLUSION

Plaintiffs’ claims against Chesapeake are unsupportable. Even in a light most favorable to Plaintiffs, the facts do not give rise to colorable claims against Chesapeake. Chesapeake hired an independent contractor to perform repairs at its property, and is shielded from liability for Plaintiffs’ injuries under the Independent Contractor Doctrine. And, Plaintiffs’ breach of contract and negligence claims cannot survive for want of essential elements. The Court should dispose of all of Plaintiffs’ meritless claims against Chesapeake.

Plaintiffs responded to Chesapeake's Motion for Summary Judgment as follows:

COME NOW, Plaintiffs Brian Gobble and Dena Parsons and file their Response in Opposition to Defendant Chesapeake Energy Corporation’s Motion for Summary Judgment. For the reasons stated hereinbelow, Plaintiffs respectfully submit that Chesapeake’s Motion for Summary Judgment should be denied because there exist genuine issues of material fact on each element of Plaintiffs’ claims. Moreover, Chesapeake’s Motion for Summary Judgment should be denied or continued until the parties obtain certain necessary discovery to more sufficiently address the factual issues before the Court. (See, Affidavit of M. Shane Lucado, attached hereto as Exhibit “A”).


STATEMENT OF MATERIAL FACTS

This case arises out of a fatal crane incident which occurred on Defendant Chesapeake’s premises in connection with a construction project commissioned by Chesapeake. (See, Amended Petition, pp. 3-4, 7-10; see also, Defendant’s Motion for Summary Judgment, p. 2). Michael Parsons was killed and Plaintiff Gobble suffered significant injuries when a piece of the crane known as the boom extension or “jib extension” (sometimes also referred to as jib”) fell while Parsons and Gobble were attempting to stow it. Parsons read the instructions on jib stowage before he and Gobbie attempted stowage. (See, Amended Petition, p. 5).

During part of the process involved in stowing the jib, the jib has to be swung and connected to the boom by a single pin (referred to as a swing pin or “spring pin”). (See, Excerpts from Grove Operator’s and Safety Handbook, RI 9000E Series Crane, pp. 6-12 through 6-17, attached as Exhibit “B”). The spring pin inserts into a bracket when a lever is pulled down. (Id.). There is another pin called a “retaining pin” which is placed underneath the spring pin at some point during the stowage process. (Id.). Parsons and Gobble encountered difficulty getting the jib extension to stow during this process. (See, Amended Petition, p. 8). Plaintiffs expect that the evidence will show Parsons and Gobble worked for a considerable time attempting to stow the jib. Apparently, they did not place the “retaining pin” underneath the spring pin. (See, Accident/Exposure Investigation Report, attached as Exhibit “C”), Although it is obvious that Parsons and Gobble believed the connection between the jib and main boom was secure, the jib fell as Parsons and Gobble attempted to secure the other end of the jib. (Id.). What caused
Parsons and Gobble to believe that the jib extension was secure is the ultimate issue between the parties.
Plaintiffs’ contend; 1) that Defendants Grove and Manitowoc designed a defective jib stowage mechanism; 2) the instructions and warnings related to jib stowage were inadequate; 3) that Defendant Scott-Macon supplied a crane having a jib that was not in proper working order despite its duty to inspect the same; and 4) that Chcsapeake along with Silvercliffe’s assistance imposed strict work restrictions yet failed to provide adequate lighting. (See generally, Amended Petition). Plaintiffs’ theories of liability against the Defendants are based in products’ liability, premises liability, negligence and breach of contract. (Id.). Defendant Chesapeake’s liability arises out of its ownership and control of the premises and because it exercised substantial control over the construction without providing adequate work conditions. (See, Amended Petition, p. 8, paragraphs 25-26). There exists a genuine controversy as to whether — and to what extent — the work restrictions imposed by Chesapeake and contemporaneous lighting issues contributed to the incident.

Chesapeake’s Ownership and Control of the Premises

Defendant Chesapeake is the owner of the property on which the subject incident occurred. (Defendant’s Motion for Summary Judgment, p. 2). The subject property is commonly referred to as Chesapeake’s Oklahoma City corporate campus. (Id.). On June 7, 2010, Chesapeake entered into a Master Service Agreement with Defendant Silvercliffe Construction Company which provided that Defendant Silvercliffe would serve as one of Chesapeake’s approved Contractors. (See, Master Sen’ice Agreement, p.

4, attached as Exhibit “D”, (Master Service Agreement attached as Exhibit 1 to Chesapeake’s Motion for Summary Judgment)). Chesapeake states that it chose Silvercliffe to perform roof repairs at its corporate campus following hail storms in May of that year. (Defendant’s Motion for Summary Judgment, p. 1-2). The Master Service Agreement between Chesapeake and Silvercliffe which forms the basis of Chesapeake’s Motion for Summary Judgment does not mention the specific work to be performed by Silvercliffe nor does it provide any timeiine for completing the roof repairs. (See, Master Service Agreement, pp. 5-8, attached as Exhibit “E”). Moreover, the Agreement does not speci& the price or cost terms of the work and does not contain other material restrictions concerning the manner of work. (Id.). The Agreement simply states:

“When notified by Company either verbally or by written work order, of the services and/or equipment desired, Contractor shall commence furnishing same at the agreed upon time, and continue such operations diligently and without delay, in strict conformity with the specifications and requirements contained herein and such work orders.” (Id. at p.
5).
Plaintiffs requested and obtained several documents from Chesapeake and
Silvercliffe through formal discovery issued from the Probate Court of Canadian County, Oklahoma. (See, Exhibit “A”). However, Plaintiffs have not yet obtained the work orders, emails, notes or other forms of communication referenced in the Master Service Agreement and reflecting “the specifications and requirements” of Silvcrc]iffe and its sub-contractors. (See, Exhibit “A”). The Master Service Agreement does not, therefore, contain all of the express terms of Chesapeake’s agreement with Silvercliffe. (See, Exhibit “F’, pp. 5-8). Clearly, there are implied terms of agreement between Chesapeake
and Silvercliffe with respect to the roof repairs and any work restrictions involved with the same. (See, Exhibit “E”, p. 5).

Under section 11.2 of Chesapeake’s Master Service Agreement with Silvercliffe, Chesapeake authorized Silvercliffe to obtain any sub-contractors necessary to complete the work. (See, Exhibit “F”). Silvercilife agreed to accept responsibility for the safety of employees, subcontractors, consuitants and agents as well as “their respective invitees.” (Id). Defendant Silvercliffe hired Anderson Safety & Compliance, LLC as one of its subcontractors to provide assistance with their safety program and to ensure a safe working environment for their employees. (See, Invoice from Anderson Safety & Compliance, [IC, attached hereto as Exhibit “G” (Silvercliffe0009)). Silvercliffe leased the cranes needed for the roof repair from Rent-a-Crane along with crane operators. (See, Rental Agreement, attached hereto as Exhibit “H” (SilvercliffeO2 11)). Defendant Scott-Macon Equipment rented the subject crane to Rent-a-Crane. (See, Master Crane Rental Agreement, attached hereto as Exhibit “I”).

Defendant Chesapeake provided security over the campus or job site which consisted of several security personnel as well as cameras. (See, Ernails and Memorandums, attached hereto as Exhibit “J”). Although Plaintiffs have not yet had an opportunity to obtain necessary testimony, Chesapeake’s security personnel exercised control over the accident scene, identified witnesses and conducted interviews. (See, Chesapeake Energy Crime — Incident Report, attached hereto as Exhibit “K”). The authority of Chesapeake’s security personnel over the premises as well as the extent to
which Chesapeake exercised control over the premises are issues requiring discovery. (See, Exhibit “A”).
It is undisputed that Michael Parsons and Plaintiff Gobble were invitees because they were crane operators for Rent-a-Crane working on the roof repair commissioned by Chesapeake. (See, Defendant’s Motion for Summary Judgment, pp. 1-2). Plaintiffs’ Amended Petition alleges that Chesapeake and Silvercliffe agreed (in writt en form) to certain time constraints and conditions with respect to the work to be performed by Silvercliffe and its sub-contractors. (See, Amended Petition, p. 7). Plaintiffs ftzrther allege, upon their information and belief, “that Chesapeake required that cranes not be operated andlor moved when in certain locations on the Chesapeake campus during a substantial portion of the daytime hours” thereby placing “Parsons and Gobble under substantial pressure to stow the jib on the subject crane before leaving the Chesapeake campus the night of the incident.” (Id. at p. 9). Plaintiffs have not yet had an opportunity to conduct the discovery necessary to establish the degree to which Defendant Chesapeake restricted crane operation or otherwise dictated work restrictions which may have affected crane operations. (See, Exhibit “A”).
Plaintiffs contend that Defendant Chesapeake exercised control over the lighting as well as the work environment and conditions where the incident occurred. (See, Exhibit “A”). According to Officer Nelson, he was dispatched to the incident scene at approximately 8:30 p.m. (See, Report of M. Nelson, attached hereto as Exhibit “L” (OCPD0000006S-00000069)). The photographs taken in connection with the incident suggest that the lighting on Chesapeake’s premises in the area where the jib was being
stowed was inadequate given the alleged work restrictions. (See, Photographs attached as
Exhibit “M” (OCPD0000000 I -OCPD00000005); and (OCPD00000023-
OCPD00000028)). Plaintiffs need to obtain the testimony of Officer Nelson, other first responders as well as the witnesses at the scene in order to properly address whether or not the lighting was adequate. (See, Exhibit “A”). Plaintiffs need the same testimony in order to determine to what extent lighting issues may have contributed to the incident. (Id.).

STATEMENT OF CONTROVERTED FACTS

In accordance with Rule 13 of the Rules for District Courts of Oklahoma, Plaintiffs set forth the material facts identified by Defendant Chesapeake in its Motion for Summary Judgment and disputed by Plaintiffs.
1. Plaintiffs dispute that the June 7. 201 0 Master Service Agreement memorializes the relationship between Chesapeake and Silvercliffe. (See, Defendant’s Motion for Summary Judgment, p. 3, paragraph 2). The Master Service Agreement between Chesapeake and Silvercliffe which forms the basis of Chesapeake’s Motion for Summary Judgment does not mention the specific work to be performed by Silvercliffe nor does it provide any timeline for completing the roof repairs. (See Exhibit 1 to Chesapeake’s Motion for Summary Judgment, pp. 5-8). Moreover, the Agreement does not specify the price or cost terms of the work and does not contain other material restrictions concerning the manner of work. (Id.). The Agreement simply states: “When notified by Company either verbally or by written work order, of the services and/or equipment desired, Contractor shall commence fiwnishing same at the agreed upon time,
and continue such operations diligently and without delay, in strict conformity with the specifications and requirements contained herein and such work orders.” (Id. at p. 5). Plaintiffs have not yet obtained the work orders, emails, notes or other forms of communication referenced in the Master Service Agreement and reflecting “the specifications and requirements” of Silvercliffe and its sub-contractors. (See, Exhibit “A”). The Master Service Agreement does not, therefore, contain all of the express terms of Chesapeake’s agreement with Silvercliffe.

2. Plaintiffs dispute that Silvercliffe served as an independent contractor for
Chesapeake. (See, Defendant’s Motion for Summary Judgment, p. 4, paragraph 4).

Although the Master Service Agreement does make reference to the foregoing, Plaintiffs
have not yet had an opportunity to obtain discovery on this issue. (See, Exhibit “A”).

Therefore, Plaintiffs dispute the same.

3. Plaintiffs dispute that Silvercliffe had sok authority to direct the details of the work to be performed at the Chesapeake campus. (See, Defendarft’s Motion for Summary Judgment, p. 3, paragraph 5). Although the Master Seiwice Agreement does make reference to the foregoing, Plaintiffs have not yet had an opportunity to obtain discovery on this issue. (See, Exhibit “A”). Therefore, Plaintiffs dispute the same.

4. PLaintiffs dispute that Chesapeake waived the right to supervise or instruct
Silvercliffe or its subcontractors in the performance of the work. (See, Defendant’s
Motion for Summary Judgment, p. 3, paragraph 6). Although the Master Service
Agreement does make reference to the foregoing, Plaintiffs have not yet had an
opportunity to obtain discovery on this issue. (See, Exhibit “A”). Therefore, Plaintiffs dispute the same.

5. Plaintiffs dispute that Silvercliffe had direct control of the project. (See, Defendant’s Motion for Summary Judgment, p. 3, paragraph 7). Although the Master Service Agreement does make reference to the foregoing, Plaintiffs have not yet had an opportunity to obtain discovery on this issue. (See, Exhibit “A”). Therefore, Plaintiffs dispute the same.

6. Plaintiffs dispute that Silvercliffe had sole authority to retain subcontractors to perform work. (See, Defendant’s Motion for Summary Judgment, p. 3, paragraph 8). Although the Master Service Agreement does make reference to the foregoing, Plaintiffs have not yet had an opportunity to obtain discovery on this issue. (See, Exhibit “A”). Therefore, Plaintiffs dispute the same.

7. Plaintiffs dispute that Silvercliffe was solely responsible for the safety of its employees, subcontractors, consultants and agents, as well as its subcontractors’ employees and agents and their respective invitees. (See, Defendant’s Motion for Summary Judgment, p. 3, paragraph 9). Although the Master Service Agreement does make reference to the foregoing, Plaintiffs assert that the duties addressed by Chesapeake were non-delegable. Furthermore, Plaintiffs have not yet had an opportunity to obtain discovery on this issue. (See, Exhibit “A”). Therefore, Plaintiffs dispute the same.

ARGUMENT & AUTHORITY

A. Summary Judgment should be denied because Plaintiffs have not yet had an opportunity to obtain sufficient discovery concerning the condition of Chesapeake’s premises nor the work conditions.

It is undisputed that Defendant Chesapeake was the owner of the property on
which the subject incident occurred. (Defendant’s Motion for Summary Judgment, p. 2).
Under OkJahoma law, a landowner owes an invitee the duty of exercising reasonable or
ordinary care for his safety. See St. Louis-S.F.R. Co. v. Williams, 176 OK 465, 56 P.2d
815, 816 (1936). This principle of law is long-standing. See, Davis v. Whitsett. 19670K
190,435 P.2d 592, 594 (1967). In Davis, the Supreme Court of Oklahoma held:

An owner of premises who has engaged an independent contractor to do work on his premises owes to such invitee the duty to keep the premises reasonably safe for the performance of the work. Such duty applies to conditions which are in the nature of a hidden danger, traps, snares, pitfal]s and the like which are not ordinarily known to an invitee who, if he does not observe them, can exercise no care to avoid injurious consequences; the owner is under no legal duty to alter the premises so as to eliminate known and obvious dangers, but an owner breaches his duty to an invitee by not warning him of hidden dangers.

Davis at 595. In Davis, Mr. Whitsett was injured and later died from an explosion that occurred while he was welding as an independent contractor on a steel tank located on property owned by the defendant and involved in an oil and gas lease. Id. at 594. Mr. Whitsett was experienced in welding on steel tanks known to be used to store oil and gas. Id. The explosion was caused by explosive gas that remained in the tank. Id. at 595. Whitsett was not shown to have been aware of the danger, i.e. the gas remaining in the tank, so there was a jury question as to whether or not the defendants knew, or should have known, about the danger. Id. In the present case, Plaintiffs have simply not had an
opportunity to obtain the discovery necessary to address the extent to which inadequate lighting or other conditions contributed to the incident. (See, Exhibit “A”). Whether the lighting was adequate and whether the conditions were obvious when observed by Parsons and Plaintiff Gobble should be an issue of fact for the jury if the evidence obtained reveals poor lighting conditions. Id.; see generally, St Louis-S.F.R. Co. v. Williams, 176 OK 465, 56 P.2d 815, 816 (1936). Under similar logic, Defendant Chesapeake’s Motion for Summary Judgment should be denied until Plaintiffs have an opportunity to determine whether other conditions or dangers contributed to the incident.

Based on the circumstances, Defendant Chesapeake may weJi have created a condition or conditions which contributed to the incident. As owner, Chesapeake likely controlled the lighting conditions where the incident occurred. (See, Exhibit “A”). Plaintiffs allege, upon real information and belief, “that Chesapeake required that cranes not be operated and/or moved when in certain locations on the Chesapeake campus during a substantial portion of the daytime hours” thereby placing “Parsons and Gobble under substantial pressure to stow the jib on the subject crane before leaving the Chesapeake campus the night of the incident.” (Amended Petition, at p. 9). Plaintiffs have not yet had an opportunity to determine the degree to which Defendant Chesapeake restricted crane operation or otherwise dictated work restrictions which may have affected crane operations, (See, Exhibit “A”). Therefore, Plaintiffs submit that Defendant Chesapeake’s Motion for Summary Judgment should be denied or continued.

B. Chesapeake was required to keep the premises reasonably safe for the performance of the work whether or not Parsons and Gobble were
acting as independent contractors.

In its Motion for Summary Judgment, Defendant Chesapeake argues that all o Plaintiffs’ theories of liability are precluded by the Independent Contractor Doctrine. (Defendant’s Motion for Summary Judgment, p. 5). The status of a person as an independent contractor depends upon the facts peculiar to each case. See generally, McReynolds v. Oklahoma Turnpike Authority, 1955 OK 13, 291 P.2d 341 (1955). [Wjhether one is an agent, servant or employee depends upon the facts peculiar to each case; and, although under a written contract the question whether the relation of employer and independent contractor ordinarily is a question of law for the court, a contract which purports to create such relationship will not protect the employer when it may be inferred from facts and circumstances revealed by evidence that, despite provisions of contract, the real relation was that of master and servant. Id. at 345 (citations omitted).
In its analysis concerning the issue(s) of independent contractor, Chesapeake has improvidently merged several issues of law and fact. On the issues of negligence, Defendant Chesapeake relies solely upon the process and condkion of the subject crane, misidentifies the danger as the entire crane, and then sets out to explain how the Master Service Agreement prohibits Plaintiffs from recovering under any theory. Chesapeake merges principles of contract law while ignoring principles of tort law. Chesapeake also fails to distinguish between Silvercliffe, Rent-a-Crane, Parsons, Gobble, or other parties. It is important to understand Chesapeake’s relationship with parties other than Silvercliffe as well as that party’s relationship with Chesapeake in order to properly define the duty of Chesapeake to Parsons and Gobble. Moreover, it is equally important to delineate contract principles with those of tort in order to identify the duty owed by Chesapeake. Chesapeake owned and seemingly controlled the premises; i.e., premises liability in tort. On the other hand, Chesapeake engaged into contract with, and
presumably only with, Silvercliffe. This raises the issue as to whether Chesapeake could contract away or delegate the tort-related obligations owed by Chesapeake to invitees. See 1-Jucigens v. Cook liii, Inc. 1973 OK 145, 521 P.2d 813 (1973). The relationships between the parties and Chesapeake, whether Chesapeake voluntarily accepted certain duties, and whether Chesapeake had contractual obligations with others which inured to the benefit of Parsons and Gobble are all issues for which discovery is required. (See, Exhibit “A”).

Notwithstanding the foregoing, Chesapeake clearly owed Parsons and Gobble an obligation to exercise reasonable care without regard to whether or not Parsons and Gobble were independent contractors. See Davis v. Whitsett, 1967 OK 190, 435 P.2d 592 (1967). Davis stands for the proposition that a person acting as independent contractor can also be an invitee, Id. at 595. “An owner of premises who has engaaed an independent contractor to do work on his premises owes to such invitee the duty to keep the premises reasonably safe for the performance of the work.” Id. (emphasis added). Whether or not Parsons and Gobble were independent contractors, Defendant Chesapeake still owed a duty to keep the premises reasonably safe for the performance of the work. Therefore, Chesapeake’s Motion for Summary Judgment should be denied.

C. Plaintiffs’ claims for breach of contract shouJd survive because
Plaintiffs have not yet had an opportunity to obtain sufficient discovery concerning the work orders, other documents, or other evidence
involved in the agreement(s) between Chesapeake and others.

The Master Service Agreement between Chesapeake and Silvercliffe which forms the basis of Chesapeake’s Motion for Summary Judgment does not represent the entirety
of the terms between Chesapeake and Silvercliffe. The Master Service Agreement does not mention the specific work to be performed by Silvercliffe nor does it provide any timeline for completing the roof repairs. (See, Exhibit “B”, pp. 5-8). The Agreement does not specil5’ the price or cost terms of the work and does not contain other material restrictions concerning the manner of work. (Id.). The Agreement simply states:

“When notified by Company either verbally or by written work order, of the services andlor equipment desired, Contractor shall commence furnishing same at the agreed upon time, and continue such operations diligently and without delay, in strict conformity with the specifications and requirements contained herein and such work orders.” (Id. at p.
9.

Although Plaintiffs have obtained several documents relating to the construction and incident, Plaintiffs have not yet obtained the work orders, emails, notes or other forms of communication referenced in the Master Service Agreement and reflecting “the specifications and requirements” of Silvercliffe and its sub-contractors, (See, Exhibit “A”). The Master Service Agreement does not, therefore, contain all of the express terms of Chesapeake’s agreement with Silvercliffe. (See, Exhibit “B”, çip. 5-8). Moreover, there are clearly implied terms of agreement between Chesapeake and Silvercliffe with respect to the roof repairs and any work restrictions involved with the same. (See, Exhibit “F’, p. 5). Plaintiffs respectfully request that Chesapeake’s Motion for Summary Judgment be denied or continued until Plaintiffs have a reasonable opportunity to obtain the referenced discovery.

Outcome: I)efcndants, Chesapeake Energy Corporation (hereinafter “CEC”) and Silvercliffe Construction Company (hereinafter “SCC”) respectfully move the Court to settle the journal entries for the hearings conducted on August 23, 2012 on the motions for summaryj udgment and objections and motions to strike affidavits filed separately by CEC and SCC.

1. On August 24, 2012, the undersigned circulated separate proposed journal entries to all counsel in this matter which memorialized the Court’s rulings.

2. Plaintiffs’ counsel will not approve either Journal Entry as proposed.

3. Counsel for all other parties approve the journal entries as to form and did sign and return the appropriate signature pages. (See proposed Journal Entry of Judgment pertaining to Court’s ruling in favor of CEC and SCC on Motions for Summary Judgment attached hereto as Exhibit “1” andproposed Journal Entry of Judgment pertaining to Court’s ruling denying in part and granting in part the objections and motions to strike affidavits attached here to as Exhibit “2”).

4. The Court’s assistance is required to settle each Journal Entry.

5. CEC and SCC request the Court approve thejournal entries attached as Exhibit 1 and Exhibit 2.

WHEREFORE, Chesapeake Energy Corporation and Silvercliffe Construction Company respectfully move the Court to approve each Journal Entry attached hereto.

Plaintiff's Experts:

Defendant's Experts:

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