Opinion
C.A. No. 99C-04-160-JEB
Submitted: October 9, 2002
Decided: November 20, 2002
Appearances: Ben T. Castle, Esquire, and Neilli Mullen Walsh, Esquire, Young, Conaway, Stargatt Taylor, Attorneys for Plaintiff
Roger A. Akin, Esquire, Attorney for Defendants
OPINION
This is the Court's decision on a motion for summary judgment filed by Defendants Michael Biddle and Biddle's Home Repair ("the Biddle Defendants"). Defendants argue that they are entitled to judgment as a matter of law on Plaintiff David W. Cox's personal injury action against them. For the reasons discussed below, the motion is denied.
FACTS
The facts of record show that Earl Pearce bought a house which he planned to renovate and use as a rental property. He contracted with the Biddle Defendants to replace windows and repair the roof. Biddle then entered into an agreement with Plaintiff Cox to do the roofing job. On the third day of the roofing work, Plaintiff was putting new shingles on the second story roof. To do so, he had to climb up and down a ladder which was leaning on the first floor porch roof leading up to the second story roof. The first floor roof allegedly sagged or gave way, and Plaintiff lost his balance. He fell to the ground and fractured his back, resulting in permanent paralysis and other injuries.
Plaintiff filed a timely suit in Superior Court, alleging negligent failure to inspect, failure to warn, failure to provide a safe work area, failure to provide appropriate equipment, failure to oversee and supervise, failure to adhere to safety codes, failure to repair the first floor roof in preparation for the second story roof work, and failure to failure to monitor dangerous premises. Plaintiff seeks damages for his injuries and disabilities, loss of earnings, and ongoing medical and life-support expenses. The Biddle Defendants move for judgment as a matter of law, disclaiming liability because they did not retain active control over the work site.
In addition to the Biddle Defendants, Earl J. Pearce, was a named defendant in the complaint, but Plaintiff agreed to the dismissal of the claims against him because he was not aware that Plaintiff has been subcontracted for the roofing work. See Letter from Ben T. Castle, Esquire, to Babiarz, J., dated August 3, 2001.
STANDARD OF REVIEW
Summary judgment is granted only when, after viewing the facts in the light most favorable to the nonmoving party, the Court finds that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. If the moving party shows that there are no material issues of fact, the burden shifts to a nonmoving party to demonstrate that there are material issues of fact. A motion for summary judgment will be denied where the proffered evidence provides a reasonable indication that a material fact is in dispute.
Burkhart v. Davies, 602 A.2d 56 (Del. 1991).
Moore v. Sizemore, 405 A.2d 679 (Del. 1979).
Ebersole and Lowengrub, 180 A.2d 467, 470 (Del. 1962).
DISCUSSION
To be liable in negligence, a defendant must have had a duty to protect the plaintiff from the harm which caused his injuries. In this case, the question before the Court is whether the Biddle Defendants had a duty to protect Plaintiff from the risk of harm posed by the allegedly rotting porch roof. In general, neither a property owner nor a general contractor has a duty to protect an employee of an independent contractor from the dangers of doing the contract work unless the owner or general contractor has active control over the work site and the work itself. Defendants argue that they had no control over the work site or over Plaintiff and his various employees. The parties do not contest that Plaintiff provided his own equipment, and hired, supervised and paid his own employees. The record shows that Biddle occasionally visited the work site during the three days that Cox and his crew were working but that Biddle did not control or supervise the work. Even general superintendence over an independent contractor's work does not constitute the "active control" that gives rise to an owner's or a general contractor's duty to provide a safe workplace for a subcontractor. The Court concludes that Biddle has no liability under the common law control test.A duty to ensure workplace safety can also arise when a property owner or general contractor, "by agreement or otherwise, undertakes responsibility for implementing the required safety measures." Where a breach of this duty causes injury to a worker, the responsible party can be held liable under traditional principles of negligence law.
Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1092 (Del.Super. 1994).
Bryant, Order at *3.
Plaintiff argues that he and Biddle verbally agreed that Biddle would have the weak porch roof reinforced prior to the roof replacement work began. Plaintiff testified at his deposition that he and Biddle made an on-site inspection to discuss safety matters prior to any work being done. Plaintiff stated that rot was clearly visible in the porch rafters, the subfascia board and certain locations where the rafters connected to the house. After seeing the rotting boards, Biddle allegedly told Cox that he would have carpenters shore up both sides of the L-shaped lower roof before Plaintiff began work on the upper roof. On the first day of the roofing job, Cox saw Biddle's carpenters nailing supporting boards perpendicular to the rafters on one side of the L-shaped porch roof. He did not question the carpenters as to the extent of their repairs.
Cox Dep. at 28-29.
Id. at 29, 30, 32.
Id. at 29, 33.
Id. at 56-57.
At his deposition, Mr. Biddle recalled visiting the site with Plaintiff to discuss the work and negotiate a price. Biddle had no recollection of the condition of the porch roof or discussion of any safety issues. He conceded that in his written agreement with Pearce he included language acknowledging weaknesses in the porch roof in order "to cover himself."
Biddle Dep. at 67-68.
Id. at 73.
Id. at 46.
The question of whether a duty exists is a mixed question of law and fact. The Court finds as a matter of law that Plaintiff has offered sufficient proof to raise the question of whether Biddle voluntarily assumed responsibility for the Plaintiff's safety during the roof work. Genuine issues of material fact exist as whether Biddle acknowledged the danger of the rotting porch roof, whether he promised to repair it prior to Plaintiff beginning his work, and if so, whether the repair work was adequate. These questions are for the jury.
Bryant at *2 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 37, at 236 (5th ed. 1984)). Rafferty v. Century Engineering, Inc., 2002 WL 480958 (Del.Super.).
For these reasons, the Biddle Defendants' motion for summary judgment is Denied.
It Is So ORDERED. Judge John E. Babiarz, Jr. JEB, jr/bjw/rmp Original to Prothonotary