Opinion
C.A. No. 04C-03-286 PLA.
Submitted: September 25, 2007.
Decided: October 11, 2007.
ON DEFENDANT'S MOTION FOR REARGUMENT GRANTED.
This 11th day of October, 2007, upon consideration of the Motion for Reargument filed by Defendant First South Utility Construction, Inc. ("First South"), it appears to the Court that:
1. On September 18, 2007, this Court granted the Motion for Summary Judgment filed by Plaintiff Delmarva Power Light Co. ("Delmarva") and denied the Motion for Summary Judgment filed by First South. In its opinion, the Court determined, inter alia, that First South was liable under the Underground Utility Damage Prevention and Safety Act (the "Act") as an excavator for the failure of its subcontractor, Shaffer Construction Co., to engage in the statutorily-required hand digging. The Court also concluded that Shaffer's actions in conducting boring operations in the vicinity of Delmarva's power lines caused Delmarva property damage. The Court also found that First South was liable to Delmarva under the peculiar risk doctrine for its subcontractor's failure to take adequate precautions for the excavation work.
Delmarva Power Light Co. v. First S. Util. Constr., Inc., 2007 WL 2758777 (Del.Super.Ct. Sept. 18, 2007)
2. On September 25, 2007, First South filed this Motion for Reargument. First South raises three points of error in the Court's decision. First, First South submits that the Court misapplied the facts in granting Delmarva's Motion for Summary Judgment because there remains a material dispute of fact as to whether Shaffer's boring caused the damage to Delmarva's line. Second, First South disputes the Court's conclusion that Shaffer's employees did not engage in hand digging prior to the excavation work, relying on the fact that Delmarva could not locate the damage or determine that the lack of hand digging caused the damage. Third, First South argues that the Court improperly determined that the peculiar risk doctrine applies to property damage. As a result, First South contends that the Court erred when it granted summary judgment in favor of Delmarva.
Pursuant to Delaware Superior Court Rule 59(e), Delmarva had the option to file a response to First South's Motion for Reargument within five days of service of the motion. Super. Ct. Civ. R. 59(e). Because First South filed the motion on September 25, 2007, Delmarva would have had to file its response by October 2, 2007. See Super. Ct. Civ. R. 6(a) ("When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and other legal holidays shall be excluded in the computation."). As a result of Delmarva's failure to file a response by this date, the Court finds that Delmarva has waived the opportunity to respond to First South's motion.
3. Under Rule 59(e), the Court will deny a Motion for Reargument unless "principles or authorities were overlooked and such points would have changed an outcome had they been addressed." A motion for reargument allows the Court to reconsider its "findings of fact, conclusions of law, or judgment . . . to afford the Trial Court an opportunity to correct errors prior to appeal. . . ."
Mortgage Elec. Registration Sys, Inc. v. Johnson, 2007 WL 2792242, at *1 (Del.Super.Ct. Sept. 25, 2007).
Bd. Of Managers of the Del. Crim. Justice Info. Sys. v. Gannet, 2003 WL 1579170, at *1 (Del.Super.Ct. Jan. 7, 2003).
4. First South argues that the peculiar risk doctrine does not apply to property damage and that the Court's reliance on Langrell v. Harrington is misplaced. Specifically, First South contends that, unlike First South, the parties in Langrell conceded liability for the subcontractor's negligence. First South also argues that the Court in Langrell found the general contractor liable under contract law and not the peculiar risk doctrine.
41 A.2d 461 (Del.Super.Ct. 1945).
5. After reanalyzing the Langrell case, the Court agrees with First South that it misapplied the peculiar risk doctrine to the facts of this case. To be sure, the Langrell case stands for the proposition that an independent contractor will be liable for property damage caused by the subcontractor's negligence in performing a hazardous activity. As stated by the Langrell court:
The defendant's theatre was located in a thickly settled district of the town of Harrington, the property in which the plaintiff was engaged in the mercantile business being thirty two feet therefrom. It was therefore the duty of the defendant not only to maintain his said theatre so as not to damage the property of others adjacent thereto, but to see that such course was taken in removing the walls left standing after the fire as would likewise protect said property of others nearby and prevent it from being damaged. Consequently the defendant was not justified in leaving it entirely to [the subcontractor] to determine the manner in which the wall of his said theatre was to be removed, or the instrumentality to be used in order to accomplish it. Dynamite is generally looked upon as inherently dangerous and should be handled with great care when used in the thickly settled district of a town for the purpose of blasting.
Langrell, 41 A.2d at 464.
To that extent, the Court finds that it properly applied Langrell to the case sub judice when it held First South liable for any property damage caused by Shaffer's alleged negligence. The Langrell Court, however, did not address the peculiar risk doctrine in holding the general contractor liable.
6. Upon further review, this Court has determined that it misapplied the peculiar risk doctrine to the facts of this case. As the Bowles Court explained:
The peculiar risk doctrine provides that one who employs an independent contractor to do work which the employer should recognize as likely to create a peculiar risk of physical harm unless special precautions are taken, is subject to liability for injuries caused by the absence of such precautions if the employer fails to provide for such precautions. The duty to take precautions . . . only applies when there is a peculiar unreasonable risk of physical harm to others. . . . It is important to keep in mind that [this] is an exception to the general nonliability rule. . . . As with any exception, its application must be limited so that the exception does not absorb the general rule.
Bowles v. White Oak, Inc., 1988 WL 97901, at *6 (Del.Super.Ct. Sept. 15, 1988) (citations omitted) (emphasis added).
As noted by the Bowles Court, the peculiar risk doctrine does apply to risks that may arise from excavation. Such risks, however, must be "physical harm to others" and not property damage.
Id.
Id. (emphasis added).
7. Furthermore, because the doctrine is an exception to the general rule of general contractor non-liability, the Court must limit its application. As noted by First South, permitting the peculiar risk doctrine to apply to property damage will establish an "unprecedented expansion . . . by applying it to a case without personal injury." Allowing the Court's earlier application of the peculiar risk doctrine to stand would also permit the exception to absorb the general rule of general contractor non-liability. As a result, the Court determines that it erred in applying the peculiar risk doctrine to the facts of this case.
Docket 80, p. 4.
8. First South next argues that there was insufficient evidence to find, as a matter of law, that Shaffer was negligent and that the negligence caused Delmarva's damages. Specifically, First South argues that the Court could not determine as a matter of law that neither of the parties engaged in the required hand digging. As a result, First South submits that the Court erred when it applied the summary judgment standard because it did not accept its version of the disputed facts.
See Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992) (holding that the Court, when applying the summary judgment standard, must accept the non-moving party's version of the disputed facts and make all reasonable inferences in the non-moving party's favor).
9. Initially, the Court notes that First South admitted in its response to Delmarva's Motion for Summary Judgment that it did not dig any test holes where the damage occurred as required by the Act. First South also admitted that the damaged cable "came out in two separate pieces, which usually does not happen when a cable fails on its own" and that the cable was "`tore [sic] up' in such a way that it had to have been damaged by an external force — i.e., that `somebody got in [the] line.'" Nonetheless, neither Shaffer nor First South admitted that either party caused the damage to Delmarva's lines, nor did they admit that they were negligent in conducting the boring operation. First South also notes that Delmarva never established that Shaffer failed to engage in hand digging.
Docket 68, ¶ 7; Docket 71, ¶ 7.
Docket 68, ¶ 9; Docket 71, ¶ 9.
The Court notes that Delmarva stated in its response to First South's Motion for Summary Judgment that "[t]here is also not debate that neither [First South] nor Shaffer performed any hand digging as the Act requires to locate the depth and width of Delmarva's facilities at the time this bore work was performed." Docket 73, p. 1. Delmarva supports this statement with the affidavit of Mr. Jay Pearson, a Delaware Department of Transportation engineer, who was present at the site at the time Delmarva discovered the damage and who stated that no hand digging occurred. See id., Ex. L, p. 9. Though First South has not offered any evidence to contradict Mr. Pearson and establish that Shaffer engaged in hand digging, the Court finds, viewing the evidence in the light most favorable to First South, that there is still a material dispute as to whether hand digging in fact occurred.
10. Accepting First South's version of the disputed facts as true, the Court concludes that it did not have a sufficient basis with which to determine that Shaffer caused the damage to Delmarva's cables or that Shaffer or First South was negligent. Delmarva and First South do not dispute that (1) Shaffer conducted a boring operation near Delmarva's power lines; (2) Delmarva suffered damage to its power lines after Shaffer conducted its operations; and (3) the damage to the lines could only have been caused by an external force. The Court finds, nonetheless, that there is no evidence in the record that establishes as a matter of law that Shaffer or First South was negligent in conducting its operation. While First South would be liable as an excavator for Shaffer's negligence as its subcontractor, a jury must first determine that Shaffer was, in fact, negligent. Moreover, even if the Court could determine conclusively that Shaffer failed to engage in hand digging, the Court could not, as a matter of law, determine that Shaffer's failure to hand dig caused Delmarva's damage from this record.
11. In conclusion, the Court improperly extended the reach of the peculiar risk doctrine to include property damage. Moreover, the Court failed to view the evidence in the light most favorable to First South, the non-moving party, when it granted Delmarva's motion for summary judgment. Accordingly, the Court's prior opinion granting summary judgment on behalf of Delmarva is VACATED; Delmarva's motion for summary judgment is DENIED.
IT IS SO ORDERED.