                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         July 10, 2014
                            FOR THE TENTH CIRCUIT
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
GREG HORTON,

             Plaintiff - Appellant,

v.                                                          No. 13-5057
                                               (D.C. No. 4:10-CV-00524-GKF-FHM)
HOLLY CORPORATION; HOLLY                                    (N.D. Okla.)
REFINING & MARKETING-TULSA,
L.L.C.; BROCK SERVICES, LTD.,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, MURPHY, and BACHARACH, Circuit Judges.



      Greg Horton appeals the district court’s grant of summary judgment to Holly

Corporation (“Holly”) on Horton’s intentional tort claim arising from a workplace

injury. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      Horton worked as a coker process operator and cutter at an oil refinery owned

by Holly. As part of his job, Horton removed and lowered the heads on coke drums,


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
large cylindrical vessels that hold the coke to be extracted. In order to lower the head

of a coke drum, employees had to engage a hydraulic jack located on a “trolley,” a

mobile platform. After engaging the jack, employees would then move the trolley

out of the way and extract coke by delivering high pressure water into the drum.

      The coking process can be perilous. Removing the coke requires dangerously

hot water and steam that can escape unpredictably. In 2002, in response to several

accidents, the Occupational Safety and Health Administration (“OSHA”) and the

Environmental Protection Agency (“EPA”) issued a bulletin outlining the dangers

associated with the coking process. The bulletin specifically addressed the removal

of coke drum heads, noting that the process can create “hot spots” that remain inside

the drum and emit a geyser of hot steam, water, or hydrocarbon once the head is

removed. The bulletin recommended that cokers always assume hot spots are

present. It also recommended that individuals performing the de-heading process

“stay[] in a protected area” and be prepared to immediately evacuate the structure and

put out any fires from a safe location. OSHA released another alert shortly thereafter

that again warned of the dangers of hot water, steam, and coke during the de-heading

process. In addition to repeating the recommendations mentioned in the earlier

bulletin, the alert recommended equipment upgrades “such as installing protective

shrouds” and automating the de-heading process “to keep workers away from . . .

unprotected areas.”




                                         -2-
      Sunoco, the petroleum manufacturer that owned the refinery in 2005, installed

controls for lowering the coke drum heads from a safer location, an area termed the

“doghouse” that was behind a wall near the trolley. The company locked the original

controls on the trolley and marked them out of service so they could not be used.

Sunoco also made corresponding changes to its operating procedure by instructing

employees to exit the trolley before lowering a drum head, so that they were out of

the way of a potential release of hot materials. However, the controls installed in the

doghouse frequently broke and before long the old controls on the trolley were

unlocked. Employees again began using the controls on the trolley and went back to

standing on the trolley to engage the switch to lower the head.

      By 2010, Holly had bought the refinery and taken over its operations. The

doghouse controls still did not work and the de-heading switch remained on the

trolley. Some employees stood on a platform next to the trolley and reached onto the

trolley to engage the de-heading switch, ostensibly to reduce the risk of harm. But

others stood directly on the trolley while engaging the switch. When doing so,

employees were approximately eight feet from the bottom of the coke drum and in

the line of fire if the drum emitted hot materials.

      When Horton arrived to work on January 14, 2010, co-workers informed him

that the coke drum had been acting oddly, showing pressure and temperature spikes.

One employee notified a manager and told other employees, including Horton, to be

careful. Nevertheless, Horton began the de-heading process. He usually stood on the


                                           -3-
platform to engage the de-heading switch. But when he arrived at the trolley, Horton

found a new switch had been installed in a slightly different location. He had not yet

been trained on how to use the new switch. Because the new switch had two knobs

instead of one, and because it was in a slightly different location, Horton could not

reach it from the platform. He therefore engaged the switch from the trolley. Within

seconds of doing so, Horton was hit by scalding hot water from the coke drum above

him. His injuries were catastrophic. Horton was treated for burn wounds to

approximately half of his body and was hospitalized for several months.

      Horton filed this diversity action against Holly in federal court, claiming that

the company willfully injured him. Following discovery, Holly moved for summary

judgment, arguing that Horton was unable to establish under Oklahoma law that the

company intentionally injured him. The district court granted Holly’s motion, noting

that there was no evidence that Holly “intended the act that caused the injury with

knowledge that the injury was substantially certain to follow.” Horton appeals.

                                           II

      We review the district court’s grant of summary judgment de novo. Tademy v.

Union Pac. Corp., 614 F.3d 1132, 1138 (10th Cir. 2008). A party is entitled to

summary judgment if it demonstrates that there is no genuine issue as to any material

fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A

genuine issue of material fact exists when, viewing the record and making reasonable

inferences in the light most favorable to the non-moving party, a reasonable jury


                                          -4-
could return a verdict for the non-moving party. Bones v. Honeywell Int’l, Inc., 366

F.3d 869, 875 (10th Cir. 2004). We apply Oklahoma law to this diversity action.

      Oklahoma law requires employers to compensate employees for injuries

arising out of the course of their employment, regardless of fault. Okla. Stat. tit. 85,

§§ 11-12 (2001). Such liability is exclusive and replaces all other employer liability

related to the injury. § 12. However, an employee may retain a common law cause

of action against his employer if the employer intentionally injures the employee.

Parret v. UNICCO Serv. Co., 127 P.3d 572, 574-75 (Okla. 2005).

      In Parret, the Oklahoma Supreme Court held that for an employer’s conduct to

be intentional—and thereby remove the worker’s claim from the exclusive remedy

provision noted above—the employer “must have (1) desired to bring about the

worker’s injury or (2) acted with the knowledge that such injury was substantially

certain to result from the employer’s conduct.” Id. at 579. To satisfy the “substantial

certainty” standard requires “more than knowledge and appreciation of the risk.” Id.

(quotation omitted). The employer’s knowledge must go beyond foreseeable risk,

high probability, or even substantial likelihood of injury. Id. “Nothing short of the

employer’s knowledge of the ‘substantial certainty’ of injury will remove the injured

worker’s claim from the exclusive remedy provision of the Workers’ Compensation

Act.” Id.

      Horton contends that Holly’s knowledge that his injury was substantially

certain to occur can be proven based on the warnings issued by the EPA and OSHA,


                                          -5-
the company’s operating procedure that required employees to leave the trolley

before de-heading the coke drums, and the fact that employees were openly

controlling the de-heading switch from the trolley despite such warnings and

procedures. Holly, meanwhile, notes that no injury like Horton’s had occurred in the

fifty-five years of the refinery’s operation, and that Horton took control of a switch

that he did not yet understand how to operate after having been warned of the coke

drum’s odd behavior. Given the circumstances, Holly argues that it could not have

known the combination of events that led to the accident were substantially certain to

occur. This case thus presents a single issue: whether the record, viewed in the light

most favorable to Horton, could support a reasonable finding that Holly was

substantially certain Horton would be injured during the de-heading process. We

must conclude that it could not.

       Oklahoma courts have not precisely articulated the “substantial certainty”

standard or the facts required to meet it. But some Oklahoma cases provide guidance

by way of comparison.1 In Price v. Howard, 236 P.3d 82 (Okla. 2010), for example,




       1
         Contrary to Horton’s assertions, Jordan v. Western Farmers Electric
Cooperative, 290 P.3d 9 (Okla. 2012), and Craft v. Graebel-Oklahoma Movers, Inc.,
178 P.3d 170 (Okla. 2007), are not helpful to our review. Unlike this case, Jordan
was decided at the motion to dismiss stage and involved the application of different
legal standards. Indeed, the court’s analysis hardly exceeded its statement that “if all
allegations in [the plaintiff’s] petition are taken as true . . . the petition plausibly
demonstrates that [the defendant’s] actions constituted an intentional tort.” Jordan,
290 P.3d at 13. Likewise, in Craft, the court remanded the plaintiff’s Parret claim to
the trial court not because the plaintiff had established enough evidence to survive
                                                                                  (continued)
                                             -6-
a plaintiff brought suit after her husband died in a plane crash on the employer’s

corporate plane. Id. at 85. The Oklahoma Supreme Court held that the plaintiff had

not met the substantial certainty standard on summary judgment despite showing that

the defendant knew the plane was too heavy, the weather was poor, the aircraft had a

new propeller system, and the defendant violated restrictions on its operating

limitations. Id. The court reasoned that although the defendant was aware the

circumstances “substantially increased the likelihood” of complications, id. at 89

(quotation omitted), the substantial certainty standard imposes a “formidable barrier”

against recovery, id. at 90. The court therefore concluded that the plaintiff had not

shown that the employer “acted with the knowledge that [the crash] was substantially

certain to result from the employer’s conduct.” Id.

      Similarly, there is no record evidence before us that Holly acted with the

knowledge that Horton’s injuries were substantially certain to result from work on

the trolley. Although the OSHA and EPA alerts are important indicators that the

company knew substantial risks existed, the “violation of government safety

regulations, even if wil[l]ful and knowing, does not rise to the level of an intentional

tort or an actual intent to injure.” Id. (footnotes omitted). Even though it had never

had a de-heading injury at the refinery, Sunoco—which owned the refinery at the




summary judgment but because he sufficiently raised the claim and the trial court
failed to rule on it. See Craft, 178 P.3d at 177-78.


                                          -7-
time the alerts were published—nevertheless responded by installing controls in a

safer location and altering its operating procedure.

      That both Sunoco and Holly thereafter allowed workers to continue operating

on the trolley, which they had done for decades without incident, is as suggestive of

management’s belief that workers were unlikely to be injured there as it is of the

defendant’s recklessness in allowing them to do so. But in neither formulation is it

reasonable to infer the company expected an injury to result, just as the

circumstances in Price did not suggest that the defendant expected the plane to crash.

Furthermore, the record shows that after Holly purchased the refinery, the company

brought in two outside consulting firms to do safety audits. Neither report mentioned

anything about safety risks related to the de-heading procedure, further evidence that

Holly did not know Horton’s injuries were substantially certain to occur.

      In Torres v. Cintas Corp., 672 F. Supp. 2d 1197 (N.D. Okla. 2009), the court

denied summary judgment to the defendant on a Parret claim brought by the wife of

an employee who was killed after he climbed onto an energized conveyer belt to clear

a dryer jam and subsequently fell into the dryer. Id. at 1203, 1217. In denying

summary judgment, the court noted that there was conflicting evidence about whether

the company knew employees were climbing onto energized conveyer belts. Id. at

1211. The court also noted the undisputed fact that the employer was aware of prior

similar accidents involving employees climbing onto energized conveyer belts at

other plants. Id. The court therefore concluded that there was a “genuine issue of


                                          -8-
material fact as to whether [the employer] knew with substantial certainty that [the

decedent] could be injured by climbing on an energized conveyer belt and failed to

take steps to stop this practice.” Id.

       We applied Oklahoma’s substantial certainty test in Monge v. RG Petro-

Machinery (Group) Co. Ltd., 701 F.3d 598 (10th Cir. 2012). That case involved a

piece of safety equipment on an oil rig called a “crown saver” that the employer “was

aware . . . was not operational.” Id. at 603, 608. Concluding that the employee “may

have had a meritorious claim to recover for his tragic injuries outside of workers’

compensation if he were required to show that [the employer] had knowledge of

foreseeable risk, high probability, or even substantial likelihood of injury,” we held

that “nothing short of [the employer’s] knowledge of the substantial certainty of

injury will do under” Oklahoma law. Id. at 608 (quotation and alteration omitted).

We must reach the same conclusion in this case.

       Although it had been warned years earlier about the dangers of the de-heading

process, Holly had no knowledge of previous injuries at the refinery because there

were none.2 Furthermore, the record contains no evidence that the company was

aware Horton did not know how to operate the new controls or that the new controls’




       2
        The absence of prior injuries does not automatically imply that an employer
lacked “substantial certainty” that an employee would be injured. We simply
conclude that these facts, taken as a whole, cannot give rise to an inference of
substantial certainty by Holly.


                                          -9-
placement, combined with the coke drum’s abnormal activity, created further

complications for employees de-heading the coking units.

      To be sure, Horton has provided evidence that Holly knew the trolley controls

exposed its employees to a risk of significant injury. The company was undoubtedly

aware that its employees were operating the de-heading switches on the trolley.

Based on employee testimony and the safety alerts, it is also clear the company knew

that operating from such a location left employees exposed to heavy risk. Horton’s

injuries were thus foreseeable and perhaps even highly probable. But there is

insufficient evidence to demonstrate that Holly knew with substantial certainty that

such an injury would occur. As the district court correctly noted, the standard is not

whether an injury was substantially certain to occur, but whether the employer knew

it was substantially certain to occur. Horton has not cleared this high bar.

                                          III

      The judgment of the district court is AFFIRMED.


                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




                                         - 10 -
