Opinion
C.A. No: 10C-05-044 (ESB)
08-06-2014
RE: Hales v. English, et al.
Arthur M. Krawitz, Esq. Doroshow, Pasquale, Krawitz & Bhaya 1202 Kirkwood Highway Wilmington, DE 19805 Lynn A. Kelly, Esq. Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 Arthur D. Kuhl, Esq. Reger, Rizzo & Darnall, LLP 1001 N. Jefferson Street Wilmington, DE 19801
Arthur M. Krawitz, Esq.
Doroshow, Pasquale, Krawitz & Bhaya
1202 Kirkwood Highway
Wilmington, DE 19805 Lynn A. Kelly, Esq.
Department of Justice
Carvel State Office Building
820 N. French Street
Wilmington, DE 19801 Arthur D. Kuhl, Esq.
Reger, Rizzo & Darnall, LLP
1001 N. Jefferson Street
Wilmington, DE 19801 Dear Counsel:
This is my decision on the Motions for Summary Judgment filed by Defendants Pennsy Supply, Inc., and State of Delaware. This case involves a motor vehicle accident that occurred at the intersection of Route 113 and Dorothy/Whitesville Road in Sussex County, Delaware. Pennsy was resurfacing a portion of the southbound lane of Route 113 pursuant to a contract with the Delaware Department of Transportation. Pursuant to the terms of the contract, Delaware State Police Officer Amy Hrupsa was directing traffic at the intersection. Plaintiffs Kelly and Reece Hales were traveling north on Route 113. Walter English was on the Dorothy Road/Whitesville Road waiting to cross Route 113. Officer Hrupsa waved to English to pull forward. Instead of stopping at the stop sign in the median between the north and southbound lanes of Route 113, English pulled all the way through and crashed into the Hales. The Hales allege that Officer Hrupsa was negligent because she waved to English to proceed into the northbound lanes of Route 113 into oncoming traffic. The Hales allege that Pennsy was negligent because it did not ensure that the traffic could move safely through the construction site. The Hales also allege that Pennsy is responsible for Officer Hrupsa's negligence.
STANDARD OF REVIEW
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. The Court views the evidence in a light most favorable to the nonmoving party. 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. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of the case, then summary judgment must be granted. 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, then summary judgment is not appropriate.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Id. at 680.
Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp., 477 U.S. 317 (1986).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Pennsy
Pennsy argues that it is not responsible to the Hales for their damages because (1) its traffic control plan was prepared in accordance with the applicable standards and approved by DelDot, and (2) it is not responsible for Officer Hrupsa's actions.
The Traffic Control Plan
Pennsy had a contract with DelDot to resurface the roadway in the area where the accident occurred. Pursuant to that contract, Pennsy had to prepare a traffic control plan in accordance with the Delaware Manual on Uniform Traffic Control Devices ("MUTCD"). Pennsy prepared a traffic control plan and submitted it to DelDot. DelDot made a few changes to the plan and approved it.
Pennsy argues that it was not negligent because it was controlling traffic pursuant to a DelDot-approved traffic control plan that was prepared in accordance with the applicable standards. Pennsy relies on High v. State Highway Department to support its argument. In High, the Delaware Supreme Court held that if a contractor is controlling traffic at a construction site pursuant to a DelDot-approved traffic control plan prepared in accordance with the applicable standards, then it cannot be held liable for an action in negligence provided that it was actually following the approved plan. The Court's rationale for its ruling was that since the contractor was acting in accordance with recognized standards, then it could not be negligent.
307 A.2d 799 (Del. 1979).
Id.
Id. at 804.
The Hales argue that Pennsy negligently prepared the traffic control plan and did not properly execute it in the field. Their specific argument is that Pennsy did not properly address traffic crossing the median. The Hales argue that Pennsy should have (a) closed the median, (2) rerouted traffic from Dorothy Road, or (3) stationed another flagger on Route 113. The Hales also argue that the MUTCD does not adequately define Pennsy's standard of care.
I have rejected the Hales' arguments. The MUTCD is published by DelDot and is issued to prescribe uniform standards and specifications for all traffic control devices in Delaware. Thus, MUTCD does set forth the applicable standard by which Pennsy's actions must be judged. The Hales have not pointed out any instances where Pennsy deviated in practice from its approved traffic control plan. Instead, the Hales argue that Pennsy should have controlled the traffic in a different manner. This argument was considered in High and rejected, with the Court stating "We think it is clear that if there are two acceptable courses of action for the achievement of the same purpose, it is not negligence on the part of a defendant to pursue one rather than the other." That is what happened here. Pennsy was following an approved plan. No negligence can follow in such a situation merely because there might have been another way to control the traffic.
Officer Hrupsa
The Hales argue that Officer Hrupsa negligently waved English across the median and into oncoming traffic. The Hales argue further that Pennsy is responsible for Officer Hrupsa's negligence because she was a borrowed servant. Pennsy argues that she was not.
The borrowed servant doctrine provides:
The general rule is that an employee, with her consent, may be loaned by her general employer to another to perform specific services, and that, in the course of and for the purpose of performing such services, she may become the employee of the specific employer rather than the employee of the general employer. Accordingly, a loaned employee may become the specific employer's employee while at the same time remaining, generally speaking, the employee of him who loans her services.
Whether or not a loaned employee becomes the employee of one whose immediate purpose he serves is always a question of fact, and depends upon whether or not her relationship to the specific employer has the usual elements of the employer-employee status. Fundamentally, it is not important whether or not she remains the employee of the general employer as to matters generally. What is important to determine is, with respect to the alleged negligent act in question, whether or not she was acting in the business of and under the direction of the general or the specific employer. This is almost always determined by which employer has the right to control and direct her activities in the performance of the act allegedly causing the injury, and whose work is being performed.
Richardson v. John T. Hardy & Sons, Inc., 182 A.2d 901, 902-03 (Del. 1962) (citing Restatement (Second) of Agency §227, cmt. a; 35 Am. Jur., Master & Servant §541).
Pennsy's contract with DelDot required Pennsy to provide off-duty uniformed police officers to direct and control traffic at locations designated by DelDot. The police officers also had to bring a marked police vehicle. Under Pennsy's contract, the police agency with jurisdiction over the area would provide the police officer. Pennsy would in turn pay the police agency. In this case, other than retaining and paying for Officer Hrupsa, it appears that Pennsy did not direct her activities. Instead, that role was undertaken by DelDot. The DelDot inspector for the job testified that he determined where the police officers would be placed on the work site and that the police officers came to him to find out where they were supposed to work. Thus, there seems to be no factual basis to support a conclusion that Officer Hrupsa was loaned out by the Delaware State Police to Pennsy. Indeed, given the nature of police work, I would think it highly unusual that a police agency would allow a private contractor to control the activities of a police officer.
State of Delaware
The State argues that it is not be responsible to the Hales for their damages because (1) it did not owe a duty of care to them, (2) it is immune from suit under 10 Del. C. §4001, and (3) Officer Hrupsa was not negligent.
Duty
The State argues that under the "public duty doctrine" it does not owe a duty of care to the Hales. This doctrine provides that when a public entity or employee owes a duty to the public at large rather than a specific individual, no member of the public may pursue a claim again that entity or person unless the claim is based upon a non-discretionary act or a failure to act. Where the public entity or employee assumes a specific duty to a specific group, the "public duty doctrine" is inapplicable. To avoid the public duty doctrine, the Hales need to establish the following:
Tilghman v. Delaware State University, 2012 WL 3860825, at *2 (Del. Super. Aug. 15, 2012) (quoting Castellani v. Delaware State Police, 751 A.2d 934 (Del. Super. 1999)).
Id. at *4.
(1) an assumption by the [governmental agency or its agents], through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the [governmental agency or its] agents that inaction could lead to harm; (3) some form of direct contact between the [governmental agency or its] agents and the injured party; and (4) that party's justifiable reliance on the...affirmative undertaking [of the governmental agency or its agents].
Castellani, 751 A.2d at 938.
The Hales cannot meet their burden of proof. The State did not agree with Pennsy to undertake traffic control just for the Hales. It instead agreed to do this for every member of the public traveling through the area of construction. This is a perfect example of a duty to the public at large rather than to a specific individual. It would be a different situation if the State had agreed to escort the Hales down the road and through the construction area. But that is not the case. Since the State owed no duty to the Hales, it cannot be responsible for their damages.
Immunity
The State argues that the Hales' claims against it are barred by 10 Del. C. §4001 unless the Hales can prove the absence of any one of the following elements: (1) the action was discretionary in nature, (2) the action was done in good faith, and (3) the action was done without gross or wanton negligence. The immunity provided by §4001 does not apply if the State employee's actions that caused the plaintiff's injuries are ministerial. An act is ministerial if the "act of the official involves less in the way of personal decision or judgment or the matter for which judgment is required has little bearing of importance upon the validity of the act." In this case, Officer Hrupsa was directing traffic. The act of directing traffic, while it does involve some discretion, is so routine that it has been held to be ministerial. Thus, if the State did owe a duty of care to the Hales, then 10 Del. C. §4001 would not prevent the Hales' claims from going forward.
Stevenson v. Brandywine School Dist., 1999 WL 742932, at *2 (Del. Super. July 9, 1999).
Id.
Sussex County, Delaware v. Morris, 610 A.2d 1354, 1359 (Del. 1992).
Simon v. Heald, 359 A.2d 666 (Del. Super. 1976). --------
Negligence
The State argues that Officer Hrupsa was not negligent. Viewing the evidence in the light most favorable to the Hales, a jury could certainly conclude that Officer Hrupsa did not make her command clear enough so that English did not think that Officer Hrupsa was waving him all the way through the median into the northbound lanes of Route 113. Thus, if the State did owe a duty of care to the Hales, this argument would not prevent the Hales' claims from going forward.
Conclusion
The Motions for Summary Judgment filed by defendants Pennsy Supply, Inc. and State of Delaware are granted.
IT IS SO ORDERED.
Very truly yours,
/s/ E. Scott Bradley
E. Scott Bradley ESB/sal
oc: Prothonotary
cc: Counsel