Opinion
C.A. No. 03C-03-026-RFS.
Submitted: September 1, 2005.
Decided: November 29, 2005.
Colin M. Shalk, Esquire, Casarino, Christman, Shalk, P.A.
William D Fletcher, Jr., Esquire, Schmittinger Rodriguez.
Mary Sherlock, Esquire, Brown, Shiels, Beauregard, Chasanov.
Dear Counsel:
This is my decision on Plaintiff James R.J. Pettit's ("Pettit") Motion for Reargument. For the following reasons, Pettit's Motion for Reargument is denied.
STATEMENT OF THE CASE
The plaintiff, James R.J. Pettit ("Pettit"), was an employee of Wilson Builders ("Wilson"). Wilson, a siding subcontractor, had a contract with defendant Country Life Homes to perform work on a residential townhouse construction project named Plantations East in Sussex County. Co-defendant Quality Mechanical was the electrical subcontractor for the project.
On the construction site, Country Life Homes provided a temporary power source for its subcontractors use. It was installed by Delaware Electrical Cooperative. By law, the temporary power source, or junction box, must be set up by a licensed electrician and inspected by a state inspector. Only the electrician and the power company know a junction box's electrical capacity.
On April 6, 2001, Pettit was working on the job site, cutting pieces of cedar siding with a miter saw. Pettit was familiar with this saw as he had used it on prior occasions. In order for the saw to operate, the trigger on the saw must be continuously depressed. If the trigger is released, power to the saw is simultaneously cut-off. The saw Pettit was using was plugged into and powered by the junction box that had been placed by Delaware Electrical Cooperative.
Michael Cooper, an employee of defendant Quality Mechanical, plugged an extension cord into an empty outlet on the junction box while Pettit was operating his saw. Pettit's saw immediately lost power. Pettit yelled to Cooper that his saw shut off, and Cooper hit the reset buttons on the junction box. During this time, Pettit was continuously depressing the trigger on the saw. Power was briefly restored to the saw before the electrical circuit was tripped again. After the saw came on and shut off for the third and final time, Pettit released the trigger and began walking away from the table. Pettit testified in support of his complaint that at that moment, the saw activated itself and cut off his right thumb. According to Pettit, he was not depressing the trigger when the saw sliced off his right thumb.
This Court granted both Quality Mechanical's and Country Life's motions for summary judgment on August 19, 2005. The Court reasoned that Pettit's failure to identify and provide an expert that would explain how the miter saw could reactivate without the trigger being depressed was fatal to his allegations. On August 25, 2005, Pettit filed this motion for reargument.
DISCUSSION
I. Motion to Amend
In his motion to reargue, Pettit asks this Court to consider the motion to amend the complaint that he filed with this Court on January 3, 2005. Previously, the Court ruled on the case dispositive summary judgment motions without specifically addressing Pettit's motion to amend the complaint. Rule 15 of the Superior Court Civil Rules governs amendments to a party's pleadings. Rule 15(a) partially states that a "party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calender, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Leave of court should be freely given unless there is evidence of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies, prejudice, futility, or the like. Parker v. State of Delaware et al., Del.Super., C.A. No. 99C-07-323-JRJ, Jurden, J. (Oct. 14, 2003). The decision to allow or deny an amendment to the complaint is within the discretion of the Court. Grand Ventures, Inc. v. Whaley, 632 A.2d 63, 72 (Del. 1993).
Del. Super. Ct. Civ. R. 15(a).
On January 3, 2005, Pettit submitted to this Court a motion to amend his complaint. The pretrial scheduling order signed by the Commissioner on February 23, 2004, listed the last day to file a motion to amend the complaint as March 31, 2004. Pettit missed the filing deadline by a full nine months. It appears to the Court that the only reason the motion to amend was submitted was in an attempt to avoid the summary judgment motions. Quality Mechanical filed their motion for summary judgment on November 1, 2004, while Country Life Homes filed their motion for summary judgment on November 5, 2004. As stated above, Pettit did not file the motion to amend until January 3, 2005, two months after the summary judgment motions were filed. There is nothing in the record that suggests why the complaint could not have been amended prior to the March 31, 2004, deadline. Furthermore, there has been no attempt by Pettit to offer a satisfactory response as to why the amended complaint was not filed in a timely manner. The only reason Pettit offers for amending the complaint at such a late date is that further development in discovery was needed to clarify the duty owed to Pettit by each defendant. It is unclear how Pettit could bring a case and sustain it based upon a theory of negligence if he does not know the duty owed to him by each defendant. More specifically, in any negligence action, the plaintiff must state the duty owed and breached in order to satisfy part of the negligence claim.
This Court may also grant a motion to amend when justice so requires and the opposing party would not be adversely affected by it. The question then becomes how prejudicial would it be to defendants to allow Pettit to amend his complaint. It is the finding of this Court that allowing Pettit to modify his complaint would prejudice the defendants. After reviewing the record, this Court granted both of defendants' motions for summary judgment because Pettit's complaints and theories of recovery were flawed. Allowing Pettit to now amend his complaint to add additional theories of recovery would be giving him a second opportunity to recover after the first one failed. Additionally, in the amended complaint, Pettit still did not solve the problem surrounding the lack of expert testimony and the defective saw. Due to Pettit's untimely filing and prejudice to defendants, this Court denies Pettit's motion to amend the complaint.
II. Motion for Reargument
The standard for a Rule 59(e) motion for reargument is well defined under Delaware law. A motion for reargument "will be denied unless the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision." Board of Managers of the Delaware Criminal Justice Information System v. Gannet Co., 2003 Del.Super. Lexis 27 at *4. A motion for reargument is not intended to rehash the arguments already decided by the court. McElroy v. Shell Petroleum, Inc., Del.Supr., 618 A.2d 91 (table), No. 375, 1992, Moore, J. (Nov. 24, 1992) (Order).
Pettit argues in his motion that the Court's decision of August 19, 2005, demonstrates a misapprehension of the law and facts as it pertains to Pettit's case. Pettit contends that his assertion that the miter saw was defective is immaterial to the negligence claims. More specifically, Pettit suggests that the condition of the miter saw only goes to the conduct of Wilson Builders, not the defendants. In my decision, I held that the condition of the saw was material to the negligence claims. I determined that without this showing, there was no way for Pettit to show a connection or legal cause between defendants' actions and Pettit's injuries. Pettit's motion to reargue simply rehashes arguments already decided by the Court, that even viewing the facts in a light most favorable to Pettit, proximate cause does not exist to connect defendants' action to Pettit's injuries.
In order for something to be the legal cause or proximate cause, it must occur "in [a] natural and continuous sequence, unbroken by any efficient intervening cause, [and] produces the injury and without which the result would not have occurred." Duphily v. Delaware Electric Cooperative, Inc., 662 A.2d 821, 829 (Del. 1995). Pettit suggests that Quality Mechanical was unsafe in their restoration of power. Even if the Court found that Quality Mechanical was unsafe in the restoration of power, there has been no showing that this was a proximate or legal cause of Pettit's injuries. Pettit has repeatedly emphasized that the miter saw restarted without the trigger being depressed. Viewing Pettit's assertions as true, the miter saw restarting without the safety starter button being depressed is an intervening cause. The Court can come to no other conclusion unless Pettit presents an expert that testifies and tells this Court that the saw would not have restarted but for Quality Mechanical's negligent use of the power source.
Pettit alleges that Country Life Homes negligently failed to instruct its subcontractors on the safe use of its power source. It is Pettit's contention that this failure was the proximate cause of Quality Mechanical's unsafe reintroduction of power to the miter saw. Pettit's argument fails here as it did above. Without expert testimony on how the saw reactivated itself without the trigger being depressed, Pettit is unable to get past the defective saw being an intervening cause. The trigger on the miter saw is a safety feature. The saw is only intended to have power when it is depressed. Pettit asserts that the saw restarted without the trigger being depressed. The Court cannot understand how this is possible without an expert. Even with Country Life Homes' lack of instructions, it is not foreseeable that the saw would regain power without the trigger being depressed, thereby cutting off Pettit's thumb. The expert is necessary to demonstrate the defect in the saw is immaterial, otherwise defendants' actions do not constitute the proximate cause of Pettit's injuries.
CONCLUSION
Considering the foregoing, Pettit's motion to amend the complaint and motion to reargue are DENIED.