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Case Bulletin – Plaintiffs’ Claims Continue to be Denied in Landmark Drilling Tort Case

Pennsylvania federal judge, John E. Jones, III, granted in part a motion  for summary judgment in the case Ely v. Cabot Oil & Gas Corp., Civil No. 3:09-cv-2284, United States District Court for the Middle District of Pennsylvania, which  limited plaintiffs’ claims in a suit over allegations of oil and gas drilling leading  to the contamination of plaintiffs’ water supply in Dimock Township, Susquehanna County. Plaintiffs specifically asserted claims breach of contract, fraudulent inducement, private nuisance, negligence and negligence per se, claims for medical monitoring, and alleged violations of a variety of Pennsylvania environmental laws against the drilling defendants.  Judge Jones’ adopted the Report and Recommendation of Chief United States Magistrate Judge Martin C. Carlson, who recommended that the drilling defendants’ motion for summary judgment on the plaintiff Hubert Ely Family’s claims be granted with respect to all claims, save for certain claims for negligence and private nuisance.

As summary judgment was granted with regards to the Elys’ claims for personal injuries, the court specified that any potential recovery would be based only on property damages or injury. Judge Jones also found that Judge Carlson correctly determined that the Ely Family’s breach of contract or fraud claims fail for a lack of proof, and further, that their Hazardous Substance Cleanup Act (“HSCA”) claim fails as a matter of law, since the court found there was no evidence of an actual or threatened release of a hazardous substance on the Ely’s property, nor any evidence that the Elys incurred any response or cleanup costs.

Earlier in April 2014, Judge Jones adopted Judge Carlson’s Report and Recommendation that declined to apply strict liability principles to plaintiff’s claims in this case. Judge Carlson  explicitly held that hydraulic fracturing did not legally qualify as an ultra-hazardous activity giving rise to strict tort liability, based on the court’s analysis of the six factors set forth in Restatement (Second) of Torts §§ 520 (1977). Though the court noted plaintiff had failed to present evidence linking their physical injuries to the drilling defendants activities, the court did not attempt to circumscribe its ruling on hydraulic fracturing to the facts of the Ely ase, observing that no court in the United States has ruled that hydraulic fracturing is subject to strict tort liability. Though this issue has yet to be re-examined by another court, it is likely that landowners seeking to apply strict liability principles will have difficulty overcoming the rulings in Ely without substantial evidence in support of their claims.