The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL
Before the Court is Defendant Petro-Hunt, LLC ("Petro-Hunt's") motion for partial summary judgment filed on January 27, 2012. See Docket No. 24. On February 20, 2012, the Plaintiffs filed a response in opposition to the motion. See Docket No. 29. On February 23, 2012, Petro-Hunt filed a reply brief. See Docket No. 31. For the reasons set forth below, the Court grants Petro-Hunt's motion.
Petro-Hunt is an oil and gas exploration and production company. Petro-Hunt retained Sanjel USA as an independent contractor to perform hydraulic fracturing, or fracking, for one of its oil wells near Keene, North Dakota, on August 30, 2008. The process of fracking involves the pumping of material under high pressure into a well to fracture the formation where the well has been drilled in order to stimulate oil production. The plaintiff, Trevor Armes, worked for Sanjel USA, was present at the frack job for Petro-Hunt's well near Keene, and was injured when an explosion occurred on the job.
On October 22, 2010, Trevor Armes and his wife Stacia Armes ("the Armes") filed this action against Petro-Hunt. See Docket No. 1. The complaint alleges seven causes of action, including: Count I - Premises Liability, Count II - Negligence, Count III - Retained Control, Count IV - Abnormally Dangerous Activity, Count V - Res Ipsa Loquitur, Count VIII - Special Relationship, and Count IX - Loss of Consortium. See Docket No. 1 (numbering in original).
On May 13, 2011, Petro-Hunt filed a motion for leave to file a third party complaint against Sanjel USA. See Docket No. 13. Petro-Hunt asserted that the Armes' complaint sought to hold it vicariously liable for Sanjel USA's wrongful conduct and that Petro-Hunt should be allowed to join Sanjel USA in this action. Magistrate Judge Charles S. Miller, Jr. issued a Report and Recommendation which recommended the Court deny the motion. See Docket No. 17. In the Report and Recommendation, Judge Miller reaffirmed an earlier order issued in Branum et al. v. Petro Hunt, LLC, Case No. 4:09-cv-035, a case arising from the same explosion and involving the same defendant and attorneys as this action. In Branum, Judge Miller recommended that this Court deny Petro-Hunt's identical motion for leave to file a third-party complaint against Sanjel USA because Petro-Hunt could not be held vicariously liable for its independent contractor's wrongful conduct, and therefore joinder would be futile. This Court adopted Judge Miller's recommendation in Branum, and denied Petro-Hunt's motion for leave to join Sanjel USA. The Court likewise adopted Judge Miller's recommendation in this case, and denied Petro-Hunt's motion to leave to file a third-party complaint against Sanjel USA. See Docket No. 19.
On January 27, 2012, Petro-Hunt filed a "Motion for Partial Summary Judgment" which argues that several claims should be dismissed as a matter of law. See Docket No. 24 In support of the motion, Petro-Hunt again relies on Judge Miller's Report and Recommendation from the Branum case. On February 20, 2012, the Armes filed a response in opposition, arguing that they seek to hold Petro-Hunt liable only for its conduct, not Sanjel USA's, and that material issues of fact exist as to each claim which precludes summary judgment. See Docket No. 29.
Petro-Hunt contends summary judgment should be granted for the following causes of action set forth in the Armes' complaint: Count I - Premises Liability, Count IV - Abnormally Dangerous Activity, Count V - Res Ipsa Loquitur, Count VIII - Special Relationship.
A. COUNT I - PREMISES LIABILITY
In the complaint, the Armes allege under Count I - Premises Liability that Petro-Hunt owned or had control over the worksite where Trevor Armes was injured, and that Petro-Hunt failed to make the worksite safe or failed to provide an adequate warning regarding obvious dangers on the worksite. See Docket No. 1, pp. 5-6. The Armes specifically state Petro-Hunt "should have anticipated the harm to Trevor Armes and therefore is liable as possessor of the land pursuant to Restatement (Second) of Torts § 343A and other applicable law." See Docket No. 1, p. 6.
Restatement (Second) of Torts § 343A provides as follows:
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
Restatement (Second) of Torts § 343A. Section 343A essentially stands for the general rule that people who are invited onto property assume the risk of obvious dangers, except when under the circumstances the possessor of the land should have anticipated harm to people entering the property despite the obvious nature of the danger. Johanson v. Nash Finch Co., 216 N.W.2d 271, 277 (N.D. 1974).
Petro-Hunt contends the premises liability claim should be dismissed as a matter of law. The North Dakota Supreme Court has adopted a rule that one who employs an independent contractor is generally not liable for acts or omissions of the independent contractor. Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 447 (N.D. 1994). The North Dakota Supreme Court has also announced a clear policy against permitting employees of independents contractors to sue the employer for work-related injuries. See Pechtl v.Conoco, Inc., 1997 ND 161, ¶ 22, 567 N.W.2d 813 (holding that employee of an independent contractor cannot sue the employer for a hazardous or dangerous ...