Opinion
Civil Action No. 05C-03-014 THG.
November 1, 2006.
William R. Peltz, Esquire, Kimmell, Carter, Roman Peltz, Bear, DE.
Robyn L. Goldenberg, Esquire, Saltz, Mongeluzzi, Barrett Bendesky, Philadelphia, PA.
Roger D. Landon, Esquire, Murphy, Spadaro Landon, Wilmington, DE.
Mary E. Sherlock, Esquire, Dover, DE.
Dear Counsel:
James Cooke initiated this lawsuit because of injuries he sustained while working on New Years Day, 2004, at a construction project known as "Bethany Crossings West". He was employed by Seaside Exteriors ("Seaside"), a subcontractor of Mark Dieste Design Build, LLC, the general contractor ("Dieste").
This is the Court's decision as to Dieste's motion for summary judgment.
THE INJURY
Dieste is the general contractor for Bethany Crossings West, which consists of nine duplex units. Dieste initially installed the cedar siding on Units 1 and 2. Dieste then subcontracted with Seaside to install the cedar siding for the remainder of the project. Dieste had used Seaside on other building projects in the past and was satisfied with Seaside's work.
On January 1, 2004, Mr. Cooke and two other Seaside employees were installing siding. Because it was a holiday, no one else was working at the job site. Previously when working at heights, the Seaside employees had used pump jacks. This day the three employees decided not to use pump jacks, but to work off of a walk board between two ladders. When the ladder and board gave way, Mr. Cooke fell and was injured. He claims that Dieste, the general contractor, is liable for his injuries.
LEGAL STANDARD — SUMMARY JUDGMENT
Summary judgment only will be granted when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, Del. Supr. 405 A.2d 674 (1979). Once the moving party has met its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. Rule 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, summary judgment must be granted. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp., supra. If, however, material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). The evidence is viewed in the light most favorable to the non-moving party. Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992).
DISCUSSION
In Handler v. Tlapechco, 2006 Del. LEXIS 304 (Del. 2006), the Supreme Court discussed the liability of a general contractor in regard to injuries sustained by a subcontractor's employee. The general rule is that a general contractor does not have a duty to protect an independent contractor's employees from the hazards of working at a job site unless the general contractor (1) actively controls the manner and method of performing the contract work; or (2) voluntarily undertakes the responsibility for implementing safety measures; or (3) retains possessory control over the work premises during the work.
ACTIVELY CONTROLLING MANNER AND METHOD OF CONTRACT WORK
Plaintiff alleges that the evidence supports the premise that Dieste, as general contractor, exercised active control over the manner and method of the independent contractor's work.
Without imposing liability upon itself under this exception, a general contractor may retain the right to inspect and supervise the work in conformity to the contract.
In Tlapechco, the Supreme Court provided guidance on this issue by citing the comment to the Restatement (Second) of Torts § 414 (1965):
In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
Plaintiff argues that the testimony of John Cullen, the general contractor's job site supervisor, evidences that Dieste exercised active control over the manner and method of Seaside's work.
He cites Mr. Cullen's deposition, pages 55 through 57, but Plaintiff is selective and does not include all of the questions and answers. It is necessary to consider all of Mr. Cullen's testimony in order to understand its context.
Mr. Cullen's testimony beginning at page 55 is as follows:
Q. Did you have the authority to tell Gregg Shaw or any of the guys that were working with him to attach the siding differently if you didn't think they were attaching it the right way?
A. Yes.
Q. Did you have the authority to tell them don't use this piece of siding because it's rotted or I don't like the way it looks, take it down and put up another piece of siding?
A. Yes.
Q. Did you ever actually do that, tell them to take something down and put something back up?
A. I can't recall an instance that I did, no.
Q. Do you recall any instances where you told them they are not attaching something right and change how you're doing it or don't forget to put the piece of paper underneath?
A. I can't recall, no.
Q. The questions that I just asked you apply to the Bethany Crossings West project, okay?
A. Yes.
Q. Does that change your answer at all?
A. There has been times when I said I think something needs to be flashed differently or Gregg would discuss — Gregg would call me and ask me or I would see something like a piece of metal that was bound to keep water out. I remember conversations about that at different times.
Q. With Gregg at this project?
A. Not at that project, just on siding jobs in general.
Q. Do you remember any conversation like that with Gregg at this project?
A. No.
Q. But in the past you've had conversations with Gregg about changing flashing or doing something differently on a project?
A. Yes.
Q. On this project, did he ever call you to ask for your advice or input about something that was going on or how to do something or what to use for material?
A. Yes. He would ask me how I wanted something done or how it would turn up around the roofer. There were just different little situations where we discussed it.
Q. Would you tell him how you wanted it done?
A. Yes.
Q. Would he do it the way you wanted it done?
A. Yes.
Plaintiff also cites to page 48 of Mr. Cullen's testimony but to consider the answers given on page 48, one also must include the background questions on page 47 as they pertain to Cullen's conversations with the owners and/or responsible persons with Seaside, Gregg Show and Jeff Shaw.
Q. Did you have any conversations with Gregg Shaw or Jeff Shaw about how they were going to install the siding when they came on as the siding contractors?
A. No. They had been installing siding for us on houses before, it was the same type of installation.
Q. Did you tell them or any of their workers to make sure they cover the concerns of the building with paper to make sure to keep the water out?
A. I'm sure. I don't — I don't recall the conversation, but that is just our practice that we always did. We either put metal or felt paper on there.
Q. And it would be your practice to make sure you tell Gregg Shaw that he should put metal or felt paper on there as well?
A. Yes. I don't recall it at that particular job but I have told him before.
Q. Okay. On what you had told him before for other projects would have applied to the same work that he was doing at this project?
A. Yes, it is the same type of work.
Q. And would your instructions have also included telling him to use five a quarter by six cedar boards on the corners?
A. Yes.
Q. And would your instructions also include telling him to use metal flashing at the bottom?
A. Yes.
Q. And would your instructions also have included telling him to cut and install 16 inch off center and caulk before and after installation?
A. Yes.
I am satisfied that Dieste's involvement on this project through Mr. Cullen is the same type of involvement included in the aforementioned comments to the Restatement § 414. Cullen had the right to inspect, require corrections, and see that the work is done satisfactorily. The testimony evidences there was very little supervision on this job site because the Shaws and Seaside were doing the same type of work that had been done on previous projects for Dieste, i.e., they knew how to install siding.
The fact that Gregg Shaw of Seaside, the subcontractor, on occasion asked for and received advice from Mr. Cullen does not translate into the general contractor actively controlling the method of work and operative detail.
The evidence falls far short of establishing that Dieste exercised such active control that Seaside was not free to do the work. Creating expectations as to the quality of work and giving advice when asked is not active control.
Dieste is entitled to summary judgment as it did not retain active control over the manner and method of the work.
UNDERTAKING RESPONSIBILITY FOR SAFETY
Plaintiff seeks to hold the general contractor responsible for poor safety decisions made by Plaintiff and/or two other co-employees of the subcontractor when they worked on a holiday with no other persons working. No other employees of the subcontractor, nor any other subcontractor, nor any employee or representative of the general contractor, were at the job site on New Year's Day.
Plaintiff was injured not by any dangerous condition at the building site, nor anything the general contractor did. Plaintiff was injured because Plaintiff and/or other subcontractor employees chose to use ladders and ladder boards instead of safer equipment, pump jacks. When the ladder gave way, Plaintiff fell.
Pursuant to the guidelines of Tlapechco and Judge DelPesco in Urena v. Capano, 2006 Del. Super. LEXIS 250 (June 2, 2006), I do not find that where a general contractor points out to subcontractors some obvious safety issue, the general contractor has assumed safety responsibilities for the whole project. This case involves Plaintiff and fellow subcontractor employees making a decision about the use of ladders versus a pump jack. It was made on a holiday with no general contractor employee at the job site. There is no evidence anywhere to suggest that Dieste had any input at all in decisions such as this. I find as a matter of law that the general contractor did not assume responsibility for the safety of Plaintiff in regard to the method of how Plaintiff was going to work at the second floor level when the only evidence was the general contractor's employees would point out some obviously dangerous condition such as nails in boards which could cause injury if stepped on. In other words, there is no causal relationship in what the general contractor did as far as safety suggestions and the reasons for Plaintiff's injury. Nothing suggests the general contractor assumed safety responsibility or was involved at all in the method and manner of how the subcontractors would work at heights. The general contractor did not undertake this duty. Nor did the contractor assume or voluntarily undertake the safety, responsibility for the subcontractor's work in general. Pointing out obvious safety problems does not create a responsibility of overall safety for the subcontractor's workers.
Summary judgment is granted to Dieste as to the safety exception.
POSSESSORY CONTROL OVER WORK PREMISES DURING WORK
The third and last exception to the rule that the general contractor is not responsible for injuries sustained by a subcontractor's employee involves the question of whether the general contractor retained possessory control over the work premises during the work in question.
In this case, the subcontractor through its employees were not only the only persons at the place where the accident occurred, they were the only people at the entire job site. In both Tlapechco and Urena, the focus of the analysis was as to the place of the work being done by the injured person at the time of his injury. The fact that Mr. Cooke and his co-employees were the only people present and that they made decisions as to their work clearly establishes that Dieste did not retain and was not in possessory control over the work premises on January 1, 2004.
Summary judgment must likewise be granted to Dieste as to this exception.
In summary, summary judgment is granted to Dieste, and Dieste is dismissed from this litigation.