Opinion
C.A. No. 99C-01-023-JRJ.
Date Submitted: March 28, 2003.
Date Decided: May 30, 2003.
Upon Defendant's Motion for Judgment as a Matter of Law DENIED.
Verdict after Bench Trial on Liability-For Defendant.
W. Christopher Componovo, Esquire, Weik, Nitsche Dougherty, Wilmington, Delaware, for Plaintiffs.
Mark L. Reardon, Esquire, Elzufon, Austin, Reardon, Tarlov Mondell, Wilmington, DE, for Defendant.
MEMORANDUM OPINION
This is the Court's Memorandum Opinion regarding Defendant, E.I. DuPont de Nemours Co.'s ("Defendant" or "DuPont") Motion for Judgment as a Matter of Law and the Court's decision following the bench trial on liability.
I. PROCEDURAL BACKGROUND
On February 24, 2003, the parties commenced a bench trial on the issue of liability. At the close of Plaintiff's case-in-chief on February 28, 2003, DuPont presented a Motion for Judgment as a Matter of Law. The Court heard oral argument on the motion and requested briefing. The parties timely filed their letter memoranda and the matter is ripe for decision.
II. FACTUAL BACKGROUND
On January 25, 1997, Ronald L. Cook ("Plaintiff" or "Cook") was injured when he slipped and fell at the Cherry Island Landfill ("Cherry Island") owned by DuPont. At all times relevant to this case, Plaintiff was acting within the course and scope of his employment with Brandywine Construction Company, Inc. ("BCCI"). BCCI was under contract with DuPont as an independent contractor to provide DuPont with around-the-clock hauling of a press cake material, known as Iron Rich, from DuPont's Edgemoor facility to Cherry Island. DuPont used Cherry Island, located approximately one mile from the Edgemoor facility, as a staging area for Iron Rich. At the time of his slip and fall, Plaintiff was employed by BCCI as a truck driver. Plaintiff was one of approximately eight Teamsters hired by BCCI to haul Iron Rich from Edgemoor to Cherry Island pursuant to BCCI's contract with DuPont. Plaintiff had worked for BCCI in that capacity for more than two years at the time of his slip and fall. On January 25, 1997, Plaintiff was working his usual 11:00 p.m. to 6:00 a.m. shift. During that shift, Plaintiff was the only BCCI employee working at either Edgemoor or Cherry Island. Plaintiff's work routine was as follows: while inside BCCI's office trailer located on the Edgemoor site, Plaintiff would receive a radio communication from DuPont indicating that a load of Iron Rich was ready for hauling. Plaintiff would drive BCCI's Mack tandem dump truck to the specified bay, and hook-up a trailer loaded with the Iron Rich to the truck. Then, Plaintiff would exit through the main gate of the Edgemoor facility, drive to Cherry Island, empty the Iron Rich from the truck and return to BCCI's office trailer to await the next dispatch call. Throughout Plaintiff's term of employment with BCCI, he made seven to nine runs per shift, and as of the date of his injury, he made hundreds and possibly thousands of trips to and from Edgemoor and Cherry Island.
Iron Rich is a press cake by product of DuPont's Netsche filter process. Iron Rich is a neutral, soil-like material which is utilized as daily cover for landfills. Iron Rich is brown in color and slippery when wet.
It is undisputed that, at the time of his injury, Plaintiff was an employee of BCCI and BCCI was an independent contractor of DuPont. Plaintiff was hired and paid by BCCI. Plaintiff's job training was provided by BCCI. BCCI set the work schedules of the BCCI Iron Rich haulers. BCCI dictated the number of BCCI employees that would work each shift and owned and maintained the trucks used for hauling the Iron Rich. The only contact the Plaintiff typically had with DuPont employees was a radio communication indicating when a press cake load was ready to be hauled to Cherry Island.
The evidence presented at trial clearly established that BCCI, not DuPont, was responsible for all day-to-day operations of hauling Iron Rich between Edgemoor and Cherry Island. BCCI designed and built an asphalt pad at Cherry Island to facilitate the hauling and dumping process. DuPont approved and paid for construction of the pad at BCCI's request. Similarly, in response to a request from BCCI, DuPont installed lighting at Cherry brown in color and slippery when wet. Island to facilitate BCCI's nighttime operations. According to BCCI's superintendent on the Edgemoor project, BCCI's haulers were satisfied with the improved lighting conditions. The lights installed were high intensity neon floodlights on poles angled towards the asphalt pad. BCCI's superintendent recalled no complaints from his haulers after the lights were installed and confirmed that BCCI made no subsequent request of DuPont for additional lighting. At the time of Plaintiff's slip and fall, the lighting fixtures had been in place for at least two years. The Plaintiff testified he "never saw a reason" to carry a flashlight when dumping Iron Rich at Cherry Island. The evidence established that BCCI was responsible for the safety of its drivers while unloading Iron Rich at Cherry Island and that BCCI was responsible for cleaning the unloading area in order to keep the area reasonably safe.
At trial, the evidence presented established that on January 25, 1997 at approximately 4:00 a.m., five hours after the start of his shift, Plaintiff exited the cab of his truck at Cherry Island in order to dump the Iron Rich and slipped and fell on the asphalt pad. He landed on his back. Plaintiff admitted that the asphalt pad was in the same condition as it had been during his four or five previous deliveries to Cherry Island that night. The only change to the asphalt pad throughout the night resulted from Plaintiff's own dumping of Iron Rich. The evidence further established that the lighting conditions were constant throughout Plaintiff's entire work shift and were such that Plaintiff considered it unnecessary to request additional lighting.
It is clear that it was common knowledge among BCCI's haulers that the asphalt pad would become slippery when Iron Rich accumulated on the pad. One BCCI truck driver testified that when the asphalt pad was wet, he sometimes found it necessary to hold on to the side of the trailer as he walked from the truck cab to the back of the truck.
DuPont denies that it was negligent and argues in its motion that Plaintiff was an employee of an independent contractor and that his injuries resulted from performance of duties within the scope of his independent contractor employment. Furthermore, DuPont asserts that the slipperiness of the Iron Rich, to the extent such might be considered a danger, was apparent to and well known by Plaintiff.
III. DISCUSSION
It is important to note that prior to trial DuPont moved for summary judgment and the Court denied its motion. The issues addressed by this Court in DuPont's summary judgment motion included:
See Cook v. E.I. DuPont Nemours Co., 2001 WL 1482685 (Del.Super.).
Whether the facts, when viewed in the light most favorable to the plaintiff, prove as a matter of law that (1) DuPont did not owe a duty to the plaintiff, and (2) that the plaintiff's knowledge of the danger negated DuPont's duty to warn.
Id at *1.
Of, course, the standard this Court must apply on a motion for judgment as a matter of law is different from that on a motion for summary judgment. The issue now before this Court on DuPont's Motion for Judgment as a Matter of Law is whether there is a legally sufficient evidentiary basis for a reasonable jury to find that DuPont exerted sufficient control over the method and manner of Plaintiff's contract work so as to be liable for his work-related injuries.
The general rule of law is "that a property owner is not liable for injuries to the employee of an independent contractor, `unless the owner retains the active control over the manner in which the work is carried out and the methods used.' The same is true for a general contractor that retains no active control over a subcontractor." In Williams v. Cantera, this Court held that a landowner is under no duty to protect an employee of an independent contractor from hazards inherent in the performance of the contract, provided that the landowner does not retain active control of the methods and manner of the contract performance.
Murson v. Henry Francis DuPont Winterthur Museum, Inc., 2001 WL 898590, at *1 (Del.Supr.) (citations omitted). For example, O'Connor v. Diamond State Tel. Co., 503 A.2d 661, 663 (Del.Super. 1985), Seeney v. Dover Country Club Apartments, Inc., 318 A.2d 619, 621 (Del.Super. 1974) and Williams v. Cantera, 274 A.2d 698, 700 (Del.Super. 1971) stand for the proposition that,
neither an owner nor general contractor has a duty to protect an independent contractor's employee from hazards created by the doing of contract work or the condition of the premises or the manner in which the work is performed unless the owner or general contractor retains active control over the manner in which the work is carried out and the methods used.
O'Connor, 503 A.2d at 663.
Both the Delaware Supreme Court and this Court have addressed what constitutes "active control." In In re Asbestos Litig. Roca Trial Group, the Court granted DuPont's Motion for Summary Judgment on the issue of whether DuPont exerted legally sufficient control over the work of an employee of an independent contractor so as to render DuPont liable for the employee's injuries. The Court held:
See Murson,, 2001 WL 8985900, at *1 (landowner acting as it's own general contractor, providing safety guidelines, inspecting the work, or submitting change orders does not constitute active control); Rafferty v. Century Eng'g, Inc., 2002 WL 480958, at *7-8 (Del.Super.) (authority to suspend work due to failure of the contractor to correct unsafe conditions, failure to carry out provision of the contract, and conditions considered unsuitable for the prosecution of the work, not sufficient); Kilgore v. R.J. Kroener, Inc., 2002 WL 480944, at *6 (Del.Super.); Bryant v. Delmarva Power Light Co., Del. Super., 1995 WL 653987 (1995) (scheduling phases of work; providing materials; constructing a temporary site-office and storage facility; determining who could have access to certain areas on the project site; making security arrangements for the site; and advising his independent contractor of observed safety violations not sufficient) Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1092 (Del.Super. 1994) (sufficient control of work area where defendant dictated the number of workers to be used by the subcontractor and supplied all construction materials, tools, equipment, and facilities); Seeney, 318 A.2d at 621 (active control is "not inferred from the mere retention by the owner or general contractor of a right to inspect the work of an independent contractor" or general superintendence over the contractual work.).
Tr. Mot. Summ. J., Del. Super., C.A. No. 01C-10-063, Babiarz, J. (July 1, 2002) (bench ruling granting Dupont's Motion for Summary Judgment).
I'm satisfied that the Summary Judgment motion should be granted on the issues of control and assumption of safety; that as I and other courts have written before, the evidence has to show that the employer actually controlled the details or the methods of work. And in none of the cases that are before the court, DuPont, Rhone-Poulenc, Chrysler and GM is that the case.
These are clearly independent subcontractors who were asked to come in and do some maintenance work for any of those companies, and Mr. Roca happened to work for one of them.
Each of those companies also had safety rules and regulations, as most large companies do. But those safety regulations were of a generalized nature, and the adoption of such regulations is obviously something the courts and society ought to encourage, and don't want to penalize a party who adopts them.
The regulations here in each of those four companies, as I said, were generalized, hard hats, no smoking, this and that, and were not particularized with regard to assuming a duty to protect an employee of a subcontractor from asbestos hazards.
Id. at 63-64.
At trial, the testimony of Plaintiff and other BCCI drivers established that each driver exercised his independent judgment in carrying out the actual dumping of the Iron Rich at Cherry Island, and that their employer controlled the method and manner of the dumping process: (1) how and where to open the gate; (2) how and where to back onto the asphalt pad; (3) how and where to open the trailer gate; (4) how and where to empty the trailer; (5) how and where to scrape the trailer; (6) how and where to walk between the cab and the trailer; (7) what shoes or boots to wear; and (8) whether to carry a flashlight. Each of the elements of the actual contract work was left to the sole discretion of the drivers and their employer, BCCI. Significantly, it was also BCCI's sole prerogative, not DuPont's, as to when an operator would be present at Cherry Island for purposes of clearing the pad.
The following witnesses testified on this point: Ron Cook, Richard Rowe, Walter Comegys, Leroy Kempski, Jim Smith, Len Fasullo, Ken Creasey.
Plaintiff points out that at all times relevant to Plaintiff's work DuPont personnel at Edgemoor retained responsibility for enforcing the general protocols for maintaining a safe work site. As DuPont concedes in its motion, DuPont required all personnel on its sites to enter and exit the DuPont facility through a security gate. DuPont required all personnel at Edgemoor — contractor and employee alike — to wear a safety helmet, safety glasses and use restricted smoking and eating areas. DuPont required all personnel at Edgemoor — contractor and employee alike — to maintain clean trucks and travel within the relevant speed limit. According to DuPont, such "generalized safety protocols" do not, as a matter of law, constitute "active control" of the methods and manner of the contract work. This Court previously held, in response to this very same argument, that "DuPont sufficiently `interjected itself' into the day-to-day hauling operations of BCCI to such an extent that genuine issues of material fact exist on the issue of control." Consequently, the Court is not able to rule as a matter of law on the issue of active control. Nor can the Court conclude that there is "no legally sufficient" evidentiary basis for Plaintiff's claim.
The following witnesses testified on this point: Len Fasullo and Ken Creasey.
Cook, 2001 WL 1482685, at *4.
However, with that said, the Court is able to render a verdict as the fact finder in this case, because Plaintiff has failed to prove negligence on the part of DuPont by a preponderance of the evidence. Plaintiff presented his case-in-chief and has been fully heard on the issue of liability. After carefully considering all of the evidence and assessing the credibility of the witnesses, the Court is simply not persuaded that DuPont breached any duty owed to Plaintiff. First, the Court is not satisfied by a preponderance of the evidence that DuPont exercised "active control" over the manner and method of work. Like the court in Roca, the Court finds that adoption of "generalized" safety rules and regulations does not equate to "active control". Nor were DuPont's safety rules and regulations "particularized with regard to assuming a duty to protect" Plaintiff from the hazards of his contract work. Second, Plaintiff's contention of inadequate lighting is wholly unavailing. Plaintiff presented no credible evidence showing that the lighting was inadequate and no evidence whatsoever that lighting was a proximate cause of Plaintiff's fall. Third, there is no question that Plaintiff knew that the dumping area was slippery. The slippery nature of the pad was an inherent hazard of this type of contract work. BCCI took steps, at DuPont's expense, to reduce the hazard, but the lighting and asphalt pad did not eliminate the hazard. Plaintiff offered no evidence to show what measures would have or could have eliminated the hazard or made the dumping area less hazardous.
For the foregoing reasons, the Court, as fact finder, finds for the defendant, DuPont.