Torts Summer 2008 Brooklyn Law School Chapter III The Duty Requirement: Physical Injuries

BP Proving Damages part 11s11RemediesSpring 2015 Fordham Law SchoolThe BP Horizon Gulf Oil SpillProving DamagesPart 1 - Common Law, OPA, GCCFGeorge W. ConkAdjunct Professor of Law & Senior Fellow, Stein Center for Law & EthicsRoom 409gconk@law.fordham.edu212-636-7446Torts Today: http://tortstoday.blogspot.comOtherwise Commentaries on Law, Language & PoliticsBlackstonetoday.blogspot.com

111 1. Liability for the unintentional infliction of economic loss: general principlesRestatement Economic Loss ( TD1 approved 2012)(a) An actor has no general duty to avoid the unintentional infliction of economic loss on another.Exceptions breach of professional duties, misrepresentation, fraud

BP Proving Damages part 12Pure Economic LossPecuniary harm not resulting from physical harm or physical contact to the person or property of the plaintiff.Business Torts - Introduction33The default ruleIn general there is no liability in tort for pure economic loss caused unintentionally and without dishonesty or disloyaltyBusiness Torts - Introduction44Reasons for the economic loss ruleIndeterminate liability may unreasonably burden businessParties with contractual relationships can better allocate risks by agreement Liability that bankrupts businesses does little to compensate victims of negligence

Business Torts - Introduction5Efficiency considerations5Reasons for the economic loss ruleIf line-drawing is difficult, prudence prefers private orderingDamage to person or property is an efficient limiting rules of thumbCommercial expectations are less important than personal securityBusiness Torts - Introduction66Indirect injury not protectedRobins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927) Justice Holmes: a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. . . . The law does not spread its protection so far.

Business Torts - Introduction77 7. Economic loss from injury to a third person or to property not belonging to the claimant. (TD 2 Restatement Economic Loss 2014)A claimant cannot recover for pure economic loss caused by (a) unintentional personal injury to another party or (b) unintentional injury to property in which the claimant has no proprietary interestBP Proving Damages part 18 7 Illustration 3Carrier in delivering toxic chemical spills it on Factory grounds, requiring shutdown for one week. Factory owner recovers lost profits, but laid off employees have no tort claim, nor do customers of Factory.

Rationale - no causal relationship between damage to property and employees or customers lossesSuch claims would open floodgates.BP Proving Damages part 19 7 Illustration 9Barge spills oil, closing harbor, delaying work by Contractor, and wrecks Contractors equipmentContractor recovers from Barge for machinery damage but not for delay if need to replace machinery did not cause delay.BUT 8 public nuisance rule may applyBP Proving Damages part 110 7 Comment (e)(a) Fishermen operating on a lay or share of catch basis have right to recover directly for losses caused by tortious damage to ship(b) Oil spill damages natural resource. Affected fishermen recover under 8 public nuisance since they suffered particular loss distinct from that of general publicBP Proving Damages part 111 8. Public nuisance resulting in pure economic loss (TD 2 Restatement Economic Harm 2014)An actor whose wrongful conduct harms or obstructs a public resource or public property is subject to liability for resulting economic loss if the claimants losses are distinct in kind from those suffered by members of the affected community in general.

BP Proving Damages part 112 8 Public NuisanceAt common law may be strict liabilitySpecial injury requirement block large and unwieldy lawsuitsBUTOften a matter of statutory lawOften broader than common law allowsStatutes may allow more expansive rights of recovery than common law

BP Proving Damages part 113 8 Illustration 1Barge spills oil into bay. Hotel on nearby beach suffers customer cancellationsLosses are similar in kind to those shared by all businesses in area.

Carrier is not liable to HotelBP Proving Damages part 114 8 Illustration 2Fishermen and clam diggers suffer economic losses due to environmental damage

Court rules their damages are distinct in kind

Barge is liable for economic loss due to public nuisance it createdBP Proving Damages part 115Farnsworth TD 2 (2012)Fishermen are treated as joint venturers and therefore have a right to restitution from recovery by captain. Since they are joint venturers they are treated as a party with a right to sue, unlike an hourly or salaried employee to whom no duty is owed because they have no proprietary interest to protect and suffered neither physical nor property damageFishemren in oil spill have a special interest and are suing as remedy for a public nuisance.15Common law antecedents1943 fishermen downstream of N.C. pulp company can recover against polluter who interfered with the common resource1945 fishing resort entitled to lost profits due to Masonite s effluent killing fish in Mississippi river1974 St. Barbara Channel Oil Spill- fishermen directly using the resource owed duty due to high degree of foreseeability of harm to maritime activityBusiness Torts BP Gulf Oil Spill16From People ExpressA very solid exception allowing recovery for economic losses has also been created in cases akin to private actions for public nuisance. Where a plaintiff's business is based in part upon the exercise of a public right, the plaintiff has been able to recover purely economic losses caused by a defendant's negligence. See, e.g., Louisiana ex rel. Guste v. M/V Testbank, 752 F.2d 1019 (5th Cir.1985) (en banc) (defendants responsible for ship collision held liable to all commercial fishermen, shrimpers, crabbers and oystermen for resulting pollution of Mississippi River); Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir.1974) (fishermen making known commercial use of public waters may recover economic losses due to defendant's oil spill); Masonite Corp. v. Steede, 198 Miss. 530, 23 So.2d 756 (1945) (en banc) (operator of fishing resort may recover lost profits due to pollution); Hampton v. North Carolina Pulp Co., 223 N.C. 535, 27 S.E.2d 538 (1943) (polluter liable for economic losses of downstream riparian landowners); Columbia River Fishermen's Protective Union v. City of St. Helens, 160 Or. 654, 87 P.2d 195 (1939) (same as Union Oil Co., supra); see also Burgess v. M/V Tamano, 370 F.Supp. 247 (D.Me.1973) (on nuisance theory, commercial fisherman may recover lost profits due **114 to oil spill). Cf. *260Birchwood Lakes Colony Club v. Borough of Medford Lakes, 90 N.J. 582, 449 A.2d 472 (1982) (residents whose use of lakeside properties was diminished by pollution from defendant's sewage treatment plant could sue for compensatory damages on nuisance theory). The theory running throughout these cases, in which the plaintiffs depend on the exercise of the public or riparian right to clean water as a natural resource, is that the pecuniary losses suffered by those who make direct use of the resource are particularly foreseeable because they are so closely linked, through the resource, to the defendants' behavior.

16Claims NOT recognized in Exxon Valdez cases, 767 F Supp. 1509 (1991)Fishermen limited to lost catch not decline in license valueSellers of fishing goods and services barredWholesalers, processors, lodges, taxidermists, air services to fishing ports barredCannery workers, guides, photographersBusiness Torts BP Gulf Oil Spill17767 F Supp. 1509http://www.leagle.com/decision/19912276767FSupp1509_12058.xml/IN%20RE%20EXXON%20VALDEZ

17In re Testabank ,750 F. 2d 1019 (5th Cir.1985)Majority:Plaintiffs urge that the decisions in Petition of Kinsman Transit Co., (2d Cir. 1968) (Kinsman II), and Union Oil Co. v. Oppen, (9th Cir. 1974), support their arguments that the Robins Dry Dock principle should be abandoned. We disagree.

Business Torts BP Gulf Oil Spill Spring 20121818In re TestabankThe policy considerations on which both those decisions are bottomed confirm our opinion that pragmatic limitations on the doctrine of foreseeability are both desirable and necessary.Business Torts BP Gulf Oil Spill Spring 20121919Wisdom dissenting In re TestabankRobins was a tort case grounded on a contract. Whatever the justification for the original holding, this Court's requirement of physical injury as a condition to recovery is an unwarranted step backwards in torts jurisprudence. Business Torts BP Gulf Oil Spill Spring 20122020Wisdom dissenting In re TestabankThe resulting bar for claims of economic loss unaccompanied by any physical damage conflicts with conventional tort principles of foreseeability and proximate cause. I would analyze the plaintiffs' claims under these principles, using the "particular damage" requirement of public nuisance law as an additional means of limiting claims.Business Torts BP Gulf Oil Spill Spring 20122121Wisdom would allow claims of all who make use of the sea in business(1) commercial fishermen, crabbers, oystermen, and shrimpers who routinely operated in and around the closed area; (2) fishermen, crabbers, oystermen, and shrimpers who engaged in these practices only for recreation; (3) operators of marinas and boat rentals, and marine suppliers; (4) tackle and bait shops; Business Torts BP Gulf Oil Spill Spring 20122222Limit of liability under OPA. 33 U.S.C. 2704(a)-(b) - $75 Million except for gross negligenceBP has chosen to waive the statutory limitation on liability under OPA[but] BP and its affiliates are not admitting anything about their conduct and, indeed, specifically deny that they have engaged in any gross negligence in connection with the Deepwater Horizon incident and the resulting oil spillBP Proving Damages part 12323Gross negligence"Gross negligence means a failure to use even slight care, or conduct that is so careless as to show complete disregard for the rights and safety of others" (PJI 2:10A [1988 Supp.]BP Proving Damages part 124With respect to the definition of gross negligence, our Court of Appeals has held that the failure to exercise even "slight care" or "slight diligence" constitutes gross negligence (Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 172, 445 N.Y.S.2d 60, 429 N.E.2d 738; Dalton v. Hamilton Hotel Operating Co., 242 N.Y. 481, 488, 152 N.E. 268; Weld v. Postal Telegraph-Cable Co., supra, 210 N.Y. at 72, 103 N.E. 957). In a similar vein, the New York Pattern Jury Instructions state: "Gross negligence means a failure to use even slight care, or conduct that is so careless as to show complete disregard for the rights and safety of others" (PJI 2:10A [1988 Supp.] 24Types of claims BP faces under statutes, common law, and Oil Pollution Liability ActCompensatory damages for:- personal injury- property damage- natural resource usersCleanup costs state, federal, and privatePunitive damagesCivil fines & penalties [CleanWaterAct,33 U.S.C. 1321(b)(7)] [$3,0000/gallon subject to $50m cap for gross negligence]

Business Torts BP Gulf Oil Spill2525Jurisdiction and Choice of LawConst. Art. III, S. 2 The judicial power shall extendto all cases of admiralty and maritime jurisdictionAll claims arise from an event in federal waters beyond territory of any state so federal law appliesMaritime law preempts all state law claimsOPA claims arise directly under the statuteBP Proving Damages part 12626Maritime law governsAll Personal injury, wrongful death and property damage claimsProduct liability claimsPunitive damagesNo maritime claims absent PD or PIB1 Order 8/26/2011 Judge Barbier, EDLA

BP Proving Damages part 12727OPA liability is extensiveThe House Report noted that[t]he claimant need not be the owner of the damaged property or resources to recover for lost profits or income. BP Proving Damages part 12828OPA liability is extensiveClearly, one major remedial purpose of OPA was to allow a broader class of claimants to recover for economic losses than allowed under general maritime law.Congress was apparently moved by the experience of the Alaskan claimants whose actual losses were not recoverable under existing law. BP Proving Damages part 12929Proximate cause?OPA does not expressly require "proximate cause," but rather only that the loss is "due to" or "resulting from" the oil spill. While the Court need not define the precise contours of OPA causation at this time, it is worth noting that during oral argument both counsel for BP and the PSC conceded that OPA causation may lie somewhere between traditional "proximate cause" and simple "but for" causation. BP Proving Damages part 13030Maritime law adopts Robins subject to OPA exception - B1 Order6. General maritime law claims that do not allege physical damage to a proprietary interest are dismissed under the Robins Dry Dock rule, unless the claim falls into the commercial fishermen exception. OPA claims for economic loss need not allege physical damage to a proprietary interest.In re Oil Spill, 2011 U.S. Dist. LEXIS 96091 (E.D. La. 8/6/2011)BP Proving Damages part 13131OPA Scope of LiabilityOPA is a comprehensive statute that "builds upon section 311 of the Clean Water Act to create a single Federal law providing cleanup authority, penalties, and liability for oil pollution.BP Proving Damages part 13232OPA Scope of LiabilityOPA broadened the scope of private persons who are allowed to recover for economic losses resulting from an oil spill. OPA allows recovery for economic losses "resulting from" or "due to" the oil spill, regardless of whether the claimant sustained physical damage to a proprietary interest. 33 U.S.C. 2702(b)(2)(E)BP Proving Damages part 133Furthermore, the House Report noted that "[t]he claimant need not be the owner of the damaged property or resources to recover for lost profits or income." H.R. Conf. Rep. 101-653, at 781 (1990).

3333 U.S.C. 2702. Elements of liability(a) In general...each responsible party for a vessel or a facility from which oil is discharged.... into or upon the navigable waters or adjoining shorelines ...is liable for the removal costs and damages ...that result from such incident.What, if any limits does this imply?Business Torts BP Gulf Oil Spill3434OPA defenses, 33 U.S.C. 27031) ACT OF GOD; 2) ACT OF WAR3) Act of a third party except- 3rd party is employee, agent, or one in any contractual relationship with the responsible party and Spill is caused solely by the 3rd party andThe responsible party exercised due care with respect to the oil and foreseeable acts of third parties and their foreseeable consequencesBusiness Torts BP Gulf Oil Spill3535Oil Pollution Act 33 USC 2702 (1990)(2) Damages(A) Natural resources(B) Real or personal property(c) Subsistence use of natural resources(D) Revenues(E) Profits and earning capacity(F) Public servicesBP Proving Damages part 136(2) DamagesThe damages referred to in subsection (a) of this section are the following:(A) Natural resourcesDamages for injury to, destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an Indian tribe trustee, or a foreign trustee.(B) Real or personal propertyDamages for injury to, or economic losses resulting from destruction of, real or personal property, which shall be recoverable by a claimant who owns or leases that property.(C) Subsistence useDamages for loss of subsistence use of natural resources, which shall be recoverable by any claimant who so uses natural resources which have been injured, destroyed, or lost, without regard to the ownership or management of the resources.(D) RevenuesDamages equal to the net loss of taxes, royalties, rents, fees, or net profit shares due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by the Government of the United States, a State, or a political subdivision thereof.(E) Profits and earning capacityDamages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant.

(F) Public servicesDamages for net costs of providing increased or additional public services during or after removal activities, including protection from fire, safety, or health hazards, caused by a discharge of oil, which shall be recoverable by a State, or a political subdivision of a State.362) Damages(C) Subsistence useDamages for loss of subsistence use of natural resources, which shall be recoverable by any claimant who so uses natural resources which have been injured, destroyed, or lost, without regard to the ownership or management of the resources.

Business Torts BP Gulf Oil Spill37372) Damages(E) Profits and earning capacityDamages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant.Does due to add anything to result from?Business Torts BP Gulf Oil Spill3838Goldberg Illustration commercial fishermanC is a commercial fisherman who relies for his business on fisheries in the Gulf ofMexico. C claims that oil from a spill for which Oil Co. is responsible has pollutedthe waters in which he fishes, and that he has been and will be unable to fish for aperiod of time, resulting in lost profits.Business Torts BP Gulf Oil Spill3939H shoreside hotelOil from the Oil Co. spill has not reached the beach front that is owned by H and reserved for use by guests at H's hotel. But oil has been found in the immediate vicinity of H's hotel, including in waters that H's guests frequently use, and neighboring beaches that H's guests routinely visit. Business Torts BP Gulf Oil Spill40H claims to have suffered a loss of business because tourists,in light of the effects of the spill on the immediate area in which his hotel is situated,have decided to vacation elsewhere.

40Evaluation issuesMitigationCollateral source offsetsPrejudgment interestProjections of future earnings (losses)TaxesDiscounting future losses

Business Torts BP Gulf Oil Spill4141E - shoreside hotel workerE is an employee at H's hotel. Because the hotel has lost business, its managers havereduced staff hours by 25%, as a result of which E has suffered and will suffer a 25%reduction in his wages for a certain period.

Suppose that E was laid off for 3 months. Was his earning capacity impaired?Business Torts BP Gulf Oil Spill4242B - a barge ownerOil spill leads to Coast Guard closure of the waterway for 3 weeks.B loses business because he cant deliver goods south of the exclusion zone

Business Torts BP Gulf Oil Spill4343R operates a dockside restaurantThe docks are empty the boats are either away doing cleanup or caught on the wrong side of the exclusion zone seaward of the restaurantBusiness Torts BP Gulf Oil Spill4444W woodworker Tourist business-reliant woodworker sells furniture near shoreside towns where beaches have been polluted. Tourist trade drops drastically as do sales.Business Torts BP Gulf Oil Spill4545A font of equitable powerMulti District LitigationBP Proving Damages part 14646Multi-District Litigation28 U.S.C. 1407"(a) When civil actions involving one or more common questions of fact are pending in differentdistricts, such actions may be transferred to any district for coordinated or consolidated pretrialproceedings. Such transfers shall be made for theconvenience of parties and witnesses and will promote the just and efficient conduct of suchactions."BP Proving Damages part 14747The MDL consists ofHundreds of consolidated cases, with (over 100,000) claimantsArising from the April 20, 2010 explosion, fire, and sinking of the DEEPWATER HORIZON mobile offshore drilling unit ("MODU"), and the subsequent discharge of millions of gallons of oil into the Gulf of Mexico before it was finally capped approximately three months later.BP Proving Damages part 14848The MDL consists ofThe consolidated cases include claims for the deaths of eleven individuals, numerous claims for personal injury, and various claims for environmental and economic damages.Judge Carl Barbier 11/14/2011BP Proving Damages part 14949Louisiana and Alabama state claimsPast, present, and future damage toNatural resources and propertyEconomic losses (including lost revenues, such as taxes)Costs of responding to the oil spill and performing removal actions, increased or additional public servicesLong-term reputation damage or "stigma" associated with the oil spill.BP Proving Damages part 15050 -Among those within the scope of liability

Damages Issues in the BP Oil SpillBP Proving Damages part 15151 2705. partial payment of claims (a) General rule. The responsible party shall establish a procedure for the payment or settlement of claims for interim, short-term damages. Payment or settlement of a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled shall not preclude recovery by the claimant for damages not reflected in the paid or settled partial claim.BP Proving Damages part 152 2705. partial payment of claims

52Presentment under OPA a mandatory condition precedentOPA 2713 All claims for removal costs or damages shall be presented first to the responsible party designated under section 2714

If all liability is denied or the claim is not settled by payment within 90 days after presentmentthe claimant may elect to commence an action in courtBP Proving Damages part 153Presentment under OPA is a mandatory condition precedent to filing suit against a Responsible Party.

9. There is no presentment requirement for claims against non-Responsible Parties.53Claims paid by industry 2/10/12BP Proving Damages part 15454Claims options by BP/GCCFEmergency paymentsInterim claimsQuick final paymentsFinal paymentsAny Final payment requires a general release of BP and all of its contractorsBP Proving Damages part 15555Types of claimantsIndividuals- employees of fishing and covered coastal enterprises- sole proprietorsBusinesses- shrimp and oyster harvestersBP Proving Damages part 15656Types of claimantsCoastal businesses- chandlers and suppliers to the fishing industry- shoreline hotels and tourist-based industries- boat builders

BP Proving Damages part 15757Types of losslost catchequipment or other property damagepast loss of earnings (individuals)past lost profitsfuture lossesBP Proving Damages part 15858Valuation issuesMitigation effortsCollateral source offsetsPrejudgment interestProjections of future lost profits/earningsTaxesDiscounting future lossesLiens (Medicare/Medicaid/welfare/benefits)

BP Proving Damages part 15959Difficulties in estimation of damagesAdequate documentation of past profits or earningsPast volatility in fish and shellfish harvestingEstimation of future health of the fish and shellfish stocksBP Proving Damages part 16060Reductions of damages* costs saved* benefits received* mitigation by other empolyment* failure to mitigate losses* offsets for taxes* prejudgment interest* discounting future lossesBP Proving Damages part 16161Deductions - GCCFAny prior payments to you by BP, the GCCF, or the Coast GuardAmounts received from unemployment compensation, severance payany other employment benefit will be counted as income to youOn any Lost Income claim from an Individual Claimant or a Business any insurance or other income replacement benefitBP Proving Damages part 16262Deductions - GCCFInsurance payments: for the losses on injuries for which you make claimAny legally authorized liens, garnishments or other attachments against a claimant and known to GCCFAmounts received from charities will not be deducted from your Interim Payment.

BP Proving Damages part 16363Cleanup costsFederal cleanupVessels of opportunityState cleanup effortsBP Proving Damages part 16464Claim expensesCounsel feesCosts of administration/GCCFRegulatory response compliance

BP Proving Damages part 16565Indemnification of co-venturersContractual indemnification for losses suffered by 3rd partiesLost vesselPersonal injuryEconomic harm

BP Proving Damages part 16666Shipowner's Limitation of Liability Act (1851)Limitation proceeding - all persons with maritime or state law claims resulting from an oil spill must bring their claims against it in one proceeding at election of ship owner.BP Proving Damages part 16767A regulatory structure for interim claims under the OPA?A Designated Responsible Party shall:Promptly report to the Commerce Department a plan for timely and sufficient compensation of those harmed due to an oil spill, which plan shall include:BP Proving Damages part 168Who should be in the those harmed?Government actors state and federalVolunteers?Property ownersFishermenShoreline businesses?68A regulatory structure for interim claims under the OPA?State the legal standards it will apply regarding:Scope of liability for damages due to the spillProof of economic lossesMethodology for estimation of future economic losses due to the spillWho will make the scope determination? Appealable?BP Proving Damages part 16969A regulatory structure for interim claims under the OPA?State the financial capacity of the company and to satisfy its obligations for damages, cleanup, and removalReport expenses and payments quarterlySubmit to periodic audit by public authorityBP Proving Damages part 170Who should pay for the audit?How can the company estimate its total liability?70Common benefit reserveCounsel feesBP Proving Damages part 17171Common benefit reserve established6% hold back from all settlements paid by GCCf to private claimants in the MDL action or in state court actions represented by counsel who have participated in or had access to the discovery conducted in this MDL4% hold back from settlements paid to states of Louisiana and AlabamaBP Proving Damages part 17272Plaintiffs Steering Committee Status Report EffortExpenseCommon benefitAll work on contingent fee basisBP Proving Damages part 17373PSC roleInitiate, coordinate, and conduct all pretrial discovery, motions, hearings and trial on behalf of plaintiffs in all actions which are consolidated in the multi district litigation, in cooperation with other counsel.BP Proving Damages part 17474PSC organizationPrincipal Work GroupsAdministrative Work Groups Legal Research & Writing Work Groups Written Discovery Science, Environmental and Damages Work Groups Jurisdiction BP Proving Damages part 17575PSC organizationDeposition and Trial Prep Teams Punitive Damages Insurance GCCF

BP Proving Damages part 17676Depositions240 depositions5,000 exhibits50 expert liability deps scheduled

BP Proving Damages part 17777Effort340 lawyers from ninety law firms have invested over 230,000 hoursDepositionsDepository 15.7 million docs to date/ 70 lawyer staffBP Proving Damages part 17878Costs incurred by common benefit attorneysContributed over $11.54 million in out-of-pocket held and shared expenses for the common benefit of claimants and litigants$1.5 million in unpaid current expensesPSC and other Common Benefit Attorneys have contributed an additional $1.8 million to a joint account for payment of further shared expenses, as incurred.

BP Proving Damages part 17979Successful advocacy for GCCF claimants (including non-clients)Successful efforts for monitoring and supervision of GCCF and Feinberg/Feinberg RozenAdvocacy for Vietnamese and non-English-speaking claimantsAdvocacy for full and transparent audit of GCCFArgued for application of general maritime law and possible punitive damagesBP Proving Damages part 18080The Deepwater HorizonIs BP at risk of punitive damages?

BP Proving Damages part 18181Louisiana Civil Jury Insturction 18.02La.Civil Code article 2315.4 provides that in addition to the compensatory damage award, if you decide to make such an award, you may award the plaintiff exemplary damages if he provesBP Proving Damages part 18282Louisiana Civil Jury Instruction 18.02 that the injuries on which the action is based were caused by a wanton and reckless disregard for the rights and safety of others by a defendant which was a cause in fact of the resulting injuries.

BP Proving Damages part 183832004 U.S. Minerals Management Service studyOnly 3 of 74 rigs studied had blowout preventers strong enough to pinch and cut the riser pipes through which oil could flowthis grim snapshot illustrates the lack of preparedness in the industry to shear and seal the last line of blowout defenseBP Proving Damages part 18484From the report of the National CommissionThe well blew out because a number of separate risk factors, oversights, and outright mistakes combined to overwhelm the safeguards meant to prevent just such an event from happening. But most of the mistakes and oversights at Macondo can be traced back to a single overarching failurea failure of management. BP Proving Damages part 185Exception is gross negligence or willful misconductReport finds MMS incompetent, ill funded, etc.85From the National Commission ReportBPs management process did not adequately identify or address risks created by late changes to well design and procedures. BP did not have adequate controls in place to ensure that key decisions in the months leading up to the blowout were safe or sound from an engineering perspective. BP Proving Damages part 18686From the National Commission ReportWhile initial well design decisions undergo a serious peer review process and changes to well design are subsequently subject to a management of change (MOC) process, changes to drilling procedures in the weeks and days before implementation are typically not subject to any such peer-review or MOC process.BP Proving Damages part 18787From the National Commission Report At Macondo, such decisions appear to have been made by the BP Macondo team in ad hoc fashion without any formal risk analysis or internal expert review.This appears to have been a key causal factor of the blowout.BP Proving Damages part 18888