July 30, 2010 – Kristopher May v. DCP Midstream, L.P. f/k/a Duke Energy Field Services, L.P., and Duke Energy Field Services, Inc., Nos. 29,331 & 29,490

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: _ July 30, 2010

NOS. 29,331 & 29,490
(consolidated)

KRISTOPHER MAY,
Plaintiff-A ppellant,
V.

DCP MIDSTREAM, L.P. f/k/a
DUKE ENERGY FIELD SERVICES, L.P.,
and DUKE ENERGY FIELD SERVICES, INC.,

Defendants-A ppellees.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge

Caren I. Fiedman
Santa Fe, NM

Killion Law Fin

James L. Killion

Samantha Peabody Estrello
Lubbock, TX

for Appellant

Hinkle, Hensley, Shanor & Martin, L.L.P.
Richard E. Olson
Lucas M. Williams
Roswell, NM
for Appellees

OPINION
VIGIL, Judge.
{1} 	Plaintiff appeals from two orders of the district court. First, the district court
granted Defendants’ motion for summary judgment, concluding that Plaintiff’s
evidence failed to satisfy the requirements of a Delgado claim. See Delgado v. Phelps
Dodge Chino, Inc., 2001-NMSC-034, ¶ 24, 131 N.M. 272, 34 P.3d 1148 (“We hold
that when an employer intentionally inflicts or willfully causes a worker to suffer an
injury that would otherwise be exclusively compensable under the [Workers’
Compensation] Act, that employer may not enjoy the benefits of exclusivity, and the
injured worker may sue in tort.”). 	The district court then awarded Defendants, as
prevailing parties, deposition costs in the amount of $2,800.36. Rule 1-054(D)(2)(e)
NMRA. We affirm.
BACKGROUND
{2} 	Defendants operate the Duke Energy/DCP Linam Ranch Facility where Plaintiff
was employed. One of the functions of the facility is to receive gas pipe inspection
gauges (pigs) that are sent through the pipeline to clean out deposits of paraffin,
sulfates, and other buildup. These pigs are typically three feet in length, twelve inches
in diameter, and weigh approximately forty-five pounds. The Eddy County pipeline
pig receiver at the Linam Ranch Facility was modified to accept a “smart” pig, a much
longer pig which also detects pipe weaknesses, pipe thickness, and leaks. Smart pigs

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measure about ten feet in length and weigh approximately 800 pounds. 	The
modifications to the receiver included the addition of a twelve-foot section of pipe
(pup) to accommodate the longer pig and a four-foot barrel extension. 	The barrel
extension was an added safety precaution in the event that the pig entered the receiver
at high velocity. Smart-pigging operations ceased, and the four-foot barrel extension
was removed, but the receiver otherwise was left in its modified configuration and not
returned to the original configuration design to safely receive regular pigs.
{3} 	Plaintiff was employed as a plant operator at the Linam Ranch Facility.
Plaintiff was tasked to retrieve the pig from the Eddy County receiver. Due to the
modified configuration of the receiver, Plaintiff was unable to determine that the pig
was lodged in the twelve-foot pup, unable to determine that there was 250 pounds of
pressure behind the pig, and unable to relieve any pressure from the pup. 	To
determine the location of the pig, Plaintiff had to place himself in front of the receiver
opening. Plaintiff was standing adjacent to the open door of the receiver when the pig
suddenly became dislodged and struck him at approximately ninety miles per hour.
Plaintiff was struck in the forearm, head, and jaw, resulting in significant injuries
including a crushed hand, fractured wrist, fractured and dislocated elbow, fractured
ulna, two transverse fractures of the neck, broken skull bone, and numerous
lacerations to the face and body. A two-inch piece of his ulna was also found lodged

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in the pig that came to rest almost 300 feet from the receiver opening.
{4} 	Plaintiff brought suit alleging that Defendants’ conduct was willful under the
standards set out in Delgado and therefore his case fell outside of the exclusivity
provision in the Workers’ Compensation Act. 	NMSA 1978, § 52-1-9 (1973).
Defendants moved for summary judgment arguing that Plaintiff failed to produce
evidence sufficient to support a Delgado claim. The district court granted the motion,
concluding that, although negligent, Defendants’ conduct simply did not rise to the
egregious level of conduct exhibited by the employer in Delgado. Pursuant to Rule
1-054(D)(2)(e), Defendants submitted a bill of costs for deposition testimony and
were awarded $2,800.36. Plaintiff appeals.
DISCUSSION
{5} 	We review a district court order granting summary judgment de novo. Self v.
United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.
“Summary judgment is appropriate where there are no genuine issues of material fact
and the movant is entitled to judgment as a matter of law.” 	Id. 	When the movant
makes a prima facie showing that summary judgment is appropriate, “the burden shifts
to the party opposing the motion to demonstrate the existence of specific evidentiary
facts that require a trial on the merits.” Morales v. Reynolds, 2004-NMCA-098, ¶ 19,
136 N.M. 280, 97 P.3d 612. 	This Court must view all evidence in the light most

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favorable to the party opposing the motion. Id. ¶ 22.
Delgado Claim
{6} 	Our Supreme Court in Delgado held that the exclusivity provision of the
Workers’ Compensation Act does not apply when the following requirements are
satisfied:
[W]illfulness renders a worker’s injury non-accidental, and therefore
outside the scope of the Act, when: (1) the worker or employer engages
in an intentional act or omission, without just cause or excuse, that is
reasonably expected to result in the injury suffered by the worker; (2) the
worker or employer expects the intentional act or omission to result in
the injury, or has utterly disregarded the consequences; and (3) the
intentional act or omission proximately causes the injury.
2001-NMSC-034, ¶ 26.
{7} 	In other words, for a claim to be outside of the scope of the Act a plaintiff must
show “some evidence of the objective expectation of injury, the subjective state of
mind of the employer, and the causal relationship between the intent and the injury.”
Morales, 2004-NMCA-098, ¶ 17. 	To survive a pre-trial motion for summary
judgment on a Delgado claim, Plaintiff “must plead or present evidence that the
employer met each of the three Delgado elements through actions that exemplify a
comparable degree of egregiousness as the employer in Delgado.” 	Morales,
2004-NMCA-098, ¶ 14. If a plaintiff cannot demonstrate conduct that approximates
the egregious conduct exhibited by the employer in Delgado under the three-prong

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test, then summary judgment is appropriate. Morales, 2004-NMCA-098, ¶ 17.
{8} 	In Morales, we identified the type of situation that Delgado addresses: “a
combination of deadly conditions, profit-motivated disregard for easily implemented
safety measures, complete lack of worker training or preparation, and outright denial
of assistance to a worker in a terrifying situation.” Morales, 2004-NMCA-098, ¶ 10.
The “critical measure” is whether the employer forced the employee to perform a task
in a specific dangerous circumstance in which the employer should have been clearly
aware of a substantial likelihood of injury or death. Dominguez v. Perovich Props.,
Inc., 2005-NMCA-050, ¶ 22, 137 N.M. 401, 111 P.3d 721.
{9} 	The complaint alleges that, at all times between the cessation of smart pig
operations on the Eddy County receiver and Plaintiff’s injuries, Defendants knew that
the receiver was “dangerously ill-suited for using and extracting the normal pig from
the pipeline.” The complaint further asserts that the failure to reconfigure the Eddy
County receiver to receive normal pigs, and the failure to properly train Plaintiff in pig
retrieval on the modified receiver, constitutes an intentional act or omission, without
just cause or excuse, that was reasonably expected to result in the injury he suffered.
Finally, the complaint alleges that the intentional act or omission on the part of
Defendants proximately caused Plaintiff’s injuries.
{10} 	The summary judgment record shows the following. An internal investigative

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report conducted by Defendants (TapRoot Report) after the incident indicates that
operations personnel working on the Eddy County receiver were unable to determine
with certainty the location of the pig in the receiver, unable to determine if any
pressure was trapped behind the pig, and unable to relieve any pressure that may have
become trapped. 	It also states that the “possibility of trapped pressure is never
precluded.” The report goes on to state, “operations personnel lacked a fundamental
understanding of the mechanics and hazards associated with operating a pig receiver.”
The on-the-job training received by Plaintiff and other plant operators only concerned
the original receiver, not the reconfigured receiver. Plaintiff asserts these facts could
lead a reasonable person to believe that the failure to provide a way to detect trapped
pressure in the line, the failure to provide a way to relieve pressure in the receiver, and
the failure to properly train operating personnel to understand the fundamentals of the
reconfigured receiver would lead to exactly the kind of calamity that befell Plaintiff.
{11} 	To demonstrate Defendants’ subjective expectation of the injury, Plaintiff
produced a note that was written when the receiver was being modified. A concern
was expressed that the pig could get stalled in the receiver with pressure packed
behind it. 	The note recommends mitigating the risk by adding a four-foot barrel
extension to the receiver as well as positioning a person at a valve upstream of the
receiver to relieve pressure if necessary. 	Once the smart pig operations ceased,

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Defendants removed the barrel extension and did not position a person upstream of
the receiver during regular pig retrieval. 	Plaintiff also offered evidence that a
supervisor received offers from several employees to change the receiver back to its
original configuration, but he declined, stating that he would get to it eventually.
{12} 	We conclude Plaintiff’s evidence does not create material issues of fact for a
jury to decide whether Defendants’ actions and omissions exemplify a comparable
degree of egregiousness as the employer in Delgado. In Delgado the employee was
ordered to attempt to remove a giant cauldron of molten slag in a situation for which
he had not been trained using unfamiliar equipment underneath a thirty-ton,
overflowing cauldron. 	2001-NMSC-034, ¶¶ 4-5. 	In this case, Plaintiff was
performing a routine task, albeit on unsafe equipment, that he had performed at least
ten times before. Moreover, while the employer in Delgado exhibited what this Court
in 	Morales 	called 	“profit-motivated 	disregard 	for 	easily 	implemented 	safety
measures,” 2004-NMCA-098, ¶ 10, there is no proof in this case that Defendants’
decision to keep the receiver in its modified state was profit-motivated in disregard
for safety.
{13} 	Without question, Plaintiff’s job would have been safer if the receiver had been
reconfigured to receive normal pigs, or if it had been fitted with a vent to release
excess pressure should the pig become lodged in the twelve-foot section of pipe

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originally intended for the smart pig. In Dominguez we said, “The difficult analytic
issue is whether an employer’s egregious and knowing general disregard for safety
measures can come within Delgado and thereby remove the employer’s protection
from a tort claim.” Dominguez, 2005-NMCA-050, ¶ 7. We conclude that having an
employee perform a routine, familiar task which he had performed before is not the
same as sending an employee to face certain injury. The absence of safety measures
by itself demonstrates neither intent nor an inherent probability of injury, and we
believe the Supreme Court in 	Delgado 	intended more than the disregard of
preventative safety devices when contemplating an exception to the Workers’
Compensation Act. 	See Dominguez, 2005-NMCA-050, ¶¶ 21-22. 	An employer’s
disregard for safety requirements designed to help prevent injury and death on the job
does not mean that an employer “specifically and wilfully caused the employee to
enter harm’s way, facing virtually certain serious injury or death, as contemplated
under Delgado.” 	Dominguez, 2005-NMCA-050, ¶ 22. 	To reach the Delgado
exception, it is critical that the employer has, “in a specific dangerous circumstance”
required the employee to perform a task where the employer is or should clearly be
aware that there is a substantial likelihood the employee will suffer injury or death by
performing the task.” 	Dominguez, 2005-NMCA-050, ¶ 22 (emphasis added). 	We
conclude that the foregoing language is directly applicable to the facts of the case now

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before us.
{14} 	The facts of Delgado are manifestly more egregious than those in the present
case. When confronted with a new and frightening situation that he was completely
unprepared for, the worker radioed his superiors and repeatedly insisted that he did
not want to perform the task and he was not trained to handle the situation.
2001-NMSC-034, ¶ 34. 	Plaintiff in this case was performing an operation he had
performed successfully several times before. The employer in Delgado knew that it
was sending an employee into almost certain injury or death, and utterly disregarded
the consequences in favor of the profit bottom line. Defendants in this case allowed
a negligently dangerous condition to persist, but there is no indication that, in leaving
the receiver in its reconfigured state, they knew or expected Plaintiff’s injuries to
occur. 	While Plaintiff has presented evidence that calls into question whether
Defendants knew that the receiver was dangerous, it does not reflect such a severe
disregard for human life and limb as presented in Delgado. The situation faced by
Plaintiff is simply not analogous to the anticipated and sudden calamity that the
worker in Delgado faced.
{15} 	Under these facts, there is little doubt that Defendants were negligent, perhaps
even grossly negligent, as the district court noted. 	However, negligence is not
enough. 	Defendants did not exhibit conduct of the same level of 	callousness and

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egregiousness exhibited by the employer in Delgado. 	Plaintiff’s evidence is not
sufficient to survive Defendants’ motion for summary judgment.
Award of Costs
{16} 	The trial court awarded deposition costs in favor of Defendants in the amount
of $2,800.36. Rule 1-054(D)(1) states that costs “shall be allowed to the prevailing
party unless the court otherwise directs” and Rule 1-054(D)(2)(e)(ii) provides that the
cost of a deposition in successful support or defense of a motion for summary
judgment is generally recoverable as a cost. 	The language of the rule creates a
presumption for an award of costs in favor of the prevailing party, and the burden is
on the losing party to demonstrate circumstances that justify the reduction or denial
of costs. Apodaca v. AAA Gas Co., 2003-NMCA-085, ¶ 103, 134 N.M. 77, 73 P.3d
215. 	We review a district court assessment of costs under the abuse of discretion
standard. Id.
{17} 	Plaintiff claims that because he is unable to pay, an award of costs is unjust,
and the district court therefore abused its discretion in awarding these costs to
Defendants. 	We agree that a losing party’s ability to pay is a proper factor for a
district court to consider in determining whether to award costs. 	Id. 	However, the
district court did consider Plaintiff’s ability to pay in exercising its discretion.
Plaintiff’s affidavit detailing his monthly income and costs indicates that he and his

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fiancé have approximately $7000 in disposable income every year. The district court
relied on this information and determined in its discretion that the deposition costs
award of $2,800.36 was appropriate. 	While we might have come to a different
conclusion, the district court relied on facts in the record and came to a logical
conclusion. We therefore conclude the district court did not abuse its discretion. See
City of Santa Fe v. Komis, 114 N.M. 659, 663, 845 P.2d 753, 757 (1992) (“The trial
court abuses its discretion when . . . [it]’s rulings [are] clearly against the logic and
effect of the facts and circumstances before the court.”)
CONCLUSION
{18} 	The district court order granting Defendants summary judgment and the district
court order awarding costs in favor of Defendants are affirmed.
{19} 	IT IS SO ORDERED.
__________________________________
MICHAEL E. VIGIL, Judge
WE CONCUR:
____________________________

JONATHANB. SUTIN, Judge

TIMOTHY L. GARCIA, Judge

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