Professor Blaine LeCesne of Loyola University New Orleans College of Law recently published an excellent article in the Michigan State Law Review that is well worth the read.  In Crude Decisions: Re-examining Degrees of Negligence in the Context of the BP Oil Spill, 2012 Mich. St. L. Rev. 103 (2012), Professor LeCesne examines multiple potential causes of action arising out of the BP Oil Spill, and how the degree of negligence that led to the manmade disaster could cause the defendants’ liability to skyrocket.  Clicking on the title identified above will take you to the SSRN page for the article, where it can be downloaded.

 The Introduction to the article reads:

The Deepwater Horizon oil rig explosion was the worst man-made environmental disaster in United States history.  This singular event caused the death of eleven rig workers, damaged, perhaps irreversibly, the coastlines and ecosystems of five Gulf States, and imposed financial ruin on the tens of thousands who relied upon a functional Gulf of Mexico for their livelihood.  Left in its wake is a massive and complex web of high-stakes, multi-district litigation which will seek to determine how and why so catastrophic an event could have occurred, attribute fault among the various responsible parties, compensate those damaged by the harm, and sanction those responsible.  When the litigation dust settles, the cumulative damages awarded and penalties assessed will likely be the largest ever in a mass tort case.

The primary defendant in the Gulf oil spill litigation (BP litigation) is BP Exploration & Production, Inc. (BP), operator of the Macondo well where the spill originated.  The predominant tort claims in the BP litigation are grounded in negligence.  However, the determination of who will ultimately bear the largest share of costs for this disaster will not necessarily be resolved within the traditional negligence framework.  Rather, the most potentially significant of these claims will hinge upon the court’s interpretation and application of the terms “gross negligence” and “willful misconduct,” labels that have confounded courts and produced a litany of conflicting and conflated definitions in the jurisprudence.

The typical negligence action focuses on whether the defendant acted unreasonably without regard to the degree of negligence involved.  Thus, courts are seldom required to determine whether defendant’s behavior constitutes ordinary negligence, gross negligence, or willful misconduct.  The egregiousness of defendant’s lapse in care is usually irrelevant to the determination of whether negligence liability attaches.  Nor does the typical negligence case compel the trier of fact to specifically label defendant’s degree of fault or to otherwise particularize its gradation. However, several of the most significant liability and damages issues in the BP litigation, as well as any potential criminal liability, will indeed require the court to determine whether the BP defendants’ conduct transcends ordinary negligence and rises to the level of gross negligence or willful misconduct.  Regulatory schemes, such as the environmental statutes at issue in this case, use these heightened degrees of fault as liability triggers to impose more severe punishment than would otherwise apply in a case of ordinary negligence.  Consequently, the gradation of negligence assigned to defendants’ conduct in the BP litigation will have a profound impact upon the amount of compensatory damages awarded and civil penalties imposed under the relevant environmental statutes, the amount of punitive damages awarded under federal maritime and state tort law, BP’s contractual indemnification obligations to its business partners, and, at least indirectly, the comparative allocation of fault amongst all the defendants.  Simply stated, a finding of gross negligence or willful misconduct will exponentially increase damages and sanctions. Given its pivotal effect upon the ultimate costs defendants will pay, how the court categorizes the defendants’ conduct is undoubtedly the single most important issue in the case.

However, it will be extraordinarily difficult for the court to categorize the degree of defendants’ fault applying existing jurisprudence interpreting the terms gross negligence and willful misconduct, particularly against the technically and factually complex setting of this case.  Over the last 100 years, courts have been unable to draw coherent distinctions between ordinary negligence, gross negligence, and willful misconduct.  The development of workable lines of demarcation between this tripartite division of fault has proven to be so elusive that some states have abandoned their usage altogether.  Several scholars have acknowledged the futility of categorizing degrees of negligence and questioned the need to do so.  Others have cast serious doubt on the conceptual soundness of attempts to define the terms gross negligence and willful misconduct in the first place.

Despite the murky distinctions and lack of guidance surrounding these terms, they remain a vital component of the regulatory fabric of many state and federal statutory schemes that use them as triggers for augmented liability, and, in some states, they are the predicate for awarding punitive damages.  In light of their prevalent usage as a regulatory tool, clarified standards for degrees of negligence could serve as a potent deterrent to careless conduct and improve safety in future high-risk activities by providing better predictability of increased liability exposure for those enterprisers engaged in such activities.  Given the magnitude of the BP litigation and the central role played by degrees of negligence as well as the inevitable regulatory effect the Deepwater Horizon incident will have on future high-risk activity, a workable analytical framework for applying degrees of negligence is sorely needed.  The goal of this Article is to provide such a framework.

Part I explains why degrees of negligence are so vital to the outcome of the BP litigation, delineating precisely how the terms gross negligence and willful misconduct will drive every major damages and allocation of fault decision in the case.  This section also discusses the potential regulatory implications degrees of negligence could have on future high-risk activities.  The interpretative criteria the courts utilize for gross negligence and willful misconduct in this high-profile case will likely become the benchmark for future applications of these widely used terms.

In order to lend some factual context to the abstract negligence theory discussed in subsequent sections, Part II describes some of the key alleged acts of negligence that led to the explosion aboard the Deepwater Horizon oil rig, including decisions made regarding the design and construction of the Macondo well, efforts to plug it, and actions that could have averted a blowout.

Part III then provides a primer on degrees of negligence, discussing the troubled origins of the concept, tracing its problematic development, and critiquing existing theories courts have used to explain a doctrine that remains largely in a state of disarray.

As an alternative to the contorted existing definitions for advanced degrees of fault, Part IV offers a novel, criteria-guided analytical framework for determining whether misconduct rises to the level of gross negligence or willful misconduct.  The selected criteria are derived from the doctrinal regimes of punitive damages, strict liability, and comparative fault which serve the same punitive, deterrent, and reparative functions as do the terms gross negligence and willful misconduct.  These interpretative criteria are then cast in a two-tiered, multi-factor balancing test that provides analytical clarity and precision in applying the terms gross negligence and willful misconduct.

In an effort to put theory to practice, Part V then illustrates how the proposed criteria for gross negligence and willful misconduct could be applied against some of the alleged acts of negligence in the BP case.