Opinion
C.A. No. 04C-07-099-ASB.
Date Submitted: February 25, 2008.
Decided: March 12, 2008.
Upon Plaintiff's Motion for Reargument. DENIED.
Thomas C. Crumplar, Esquire, Jacobs Crumplar, P.A., Wilmington, DE.
Krista R. Samis, Esquire, Elzufon Austin Reardon Tarlov Mondell, P.A., Wilmington, DE.
Dear Counsel:
The Plaintiff, Lillian Riedel, has moved for reargument pursuant to Delaware Superior Court Civil Rule 59 (e) in connection with the Court's decision of December 21, 2007, granting defendant, ICI Americas Inc.'s, Motion for Summary Judgment. Plaintiff argues that the Court either failed to address, or incorrectly addressed, several bases upon which she believes the motion should have been denied. Specifically, Plaintiff argues: (1) the Court failed to consider whether a duty existed under RESTATEMENT (SECOND) OF TORTS, § 315 (1965)("Section 315") (setting forth the so-called "special relationship" test); (2) the Court improperly discounted the concept of foreseeability in its duty analysis; (3) the Court improperly applied the so-called "risk/benefit" theory of duty; (4) the Court failed to consider ICI's liability as negligent employer of an agent acting within the scope of his employment; and (5) the Court failed to consider RESTATEMENT (THIRD) OF AGENCY, § 7.05 when assessing the relationship between employer and employee. ICI opposes the motion and argues that "[f]or each ground Plaintiff has raised for reargument, Plaintiff has either failed to raise that argument in her underlying brief or the Court has already addressed the issue in its decision."
A. The Standard of Review
The Court's standard of review on a motion for reargument is well-settled:
As this Court recalled in Monsanto Co. v. Aetna Cas. Sur. Co., reargument will usually be denied unless it is shown that the Court overlooked a precedent or legal principle that would have controlling effect, or that it has misapprehended the law or the facts such as would affect the outcome of the decision. The Delaware Supreme Court has also stated that motions for reargument should not be used merely to rehash the arguments already decided by the Court.
Norfleet v. Mid-Atlantic Realty Co., Inc., 2001 Del. Super. LEXIS 328, at **2-3 (internal quotations and citations omitted).
B. The Plaintiff's Claims for Reargument
The Court will address Plaintiff's contentions seriatim.
1. The Special Relationship Test
Plaintiff argues that the Court did not consider Section 315 in its analysis of the duty issue. This is incorrect. The Court did consider whether a special relationship existed between Mrs. Riedel and ICI or Mr. Riedel and ICI "that would justify the imposition of a duty upon ICI to control the conduct of its employee. . . ." The Court found that no such special relationship existed. Moreover, the Restatement itself demonstrates why plaintiff's argument is misplaced. RESTATEMENT (SECOND) OF TORTS, § 317 (1965) addresses the limited circumstances under which a special relationship between master and servant acting outside of the scope of employment will give rise to a duty upon the master to control the conduct of the servant:
In Re Asbestos Litigation (Limited to Lillian Riedel), C.A. No. 04C-07-099-ASB, Slights, J. (Del.Super. Dec. 21, 2007) (Mem. Op. at 31). Further references to this Court's Opinion will be to "Mem. Op. at ___").
Id.
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
In this instance, the plaintiff contends that ICI was negligent by allowing Mr. Riedel to leave work and return home with asbestos dust on his clothing. Mrs. Riedel claims that she was exposed to this asbestos within the confines of her own home. Mr. Riedel was not acting within the scope of his employment when the alleged exposure occurred.
See Divine v. Advanced Power Control, Inc., 663 A.2d 1205, 1210 (Del.Super. 1995) (recognizing the general rule that injuries occurring while an employee is going to work or coming home from work are not compensable under the workmen's compensation statute because the employee is not acting within the scope of his employment).
Section 317 will not impose the duty under these circumstances because Mr. Riedel was neither "upon the premises in possession of the master" nor "using a chattel of the master" at the time the alleged "take home" exposure occurred. Accordingly, the Court is satisfied that it did not "overlook a precedent or legal principle" or otherwise "misapprehend the law" when it concluded that the "special relationship test" does not justify the imposition of a duty upon ICI under the facts presented here.
See Norfleet, 2001 Del. Super. LEXIS 328, at **2-3.
2. Foreseeability
Plaintiff argues that the Court discounted the importance of foreseeability in the duty analysis. To the contrary, the Court took great pains to track the role of foreseeability in the Delaware jurisprudence addressing the formulation of legal duties in the tort context. As stated by the Court, foreseeability plays a role in the duty analysis but it is not the only factor. In the absence of a legally cognizable relationship between the plaintiff and the defendant, Delaware law is clear that no duty may be imposed upon the defendant to act for the benefit or in protection of the plaintiff. The Court is satisfied that it properly applied Delaware law to these facts and did not overlook or misapprehend any legal precedent in doing so.
See Id. See also Mem. Op. at 11-19.
3. The Risk/Benefit Theory
Plaintiff argues that the Court misapplied the risk/benefit theory of duty. As noted by the Court in its opinion, however, no Delaware decision has adopted this theory as a stand-alone approach to the duty analysis. The Court made reference to it because other jurisdictions that have addressed the take home exposure question have relied, at least in part, on a risk/benefit analysis. While some may disagree as to its application in this instance, none can disagree that, in Delaware, a duty will not be imposed in the absence of a relationship between the parties. Thus, even if one were to conclude that the Court did not properly apply the risk/benefit analysis to these facts, the end result would not change if the Court was correct in its conclusion that no legally significant relationship existed between the Plaintiff and ICI. As stated, the Court is satisfied that it correctly decided this question. Accordingly, reargument on the Court's risk/benefit analysis is not appropriate.
Mem. Op. at 20, n. 54.
4. The Scope of Employment
Plaintiff argues that the Court failed to consider whether Mr. Riedel was acting within the scope of his employment at the time he exposed his wife to asbestos on clothing he brought home from work at ICI. Plaintiff's argument ignores settled Delaware law that a plaintiff is not acting within the scope of his employment when he concludes his work day and goes home. Under these circumstances, there is simply no basis to hold ICI independently negligent or vicariously liable for the negligence of its employee (assuming Mr. Riedel was negligent).
See Clough v. Interline Brands, Inc., 2007 Del. LEXIS 193, **2-3 (holding that employee who was injured after finishing his work day was no longer acting within the scope of his employment).
5. RESTATEMENT OF AGENCY
Finally, Plaintiff argues that the Court failed to consider the RESTATEMENT (THIRD) OF AGENCY when determining whether an agency relationship existed between ICI and Mr. Riedel at the time Mrs. Riedel was injured. This argument is raised for the first time in Plaintiff's motion for reargument. As such, it is not a proper basis upon which reargument may be granted. Moreover, the Restatement provision to which Plaintiff cites, Section 7.05(1), deals with negligent failure to "select, train, retain, supervise, or otherwise control the agent." As stated, Mr. Riedel was not acting within the scope of his employment at the time of the alleged exposure and, therefore, ICI had no ability to control his activity at that time. Section 7.05 (2) deals with "special relationships" between the principal and "another person" such that the principal would owe that person a duty of reasonable care. The Court has already concluded that no special relationship existed between ICI and either Mr. or Mrs. Riedel. Accordingly, Section 7.05 does not apply here.
See Plummer v. Sherman, 2004 Del. Super. LEXIS 7, *4 ("Under Delaware law, parties cannot use Rule 59 (e) to raise new arguments.").
RESTATEMENT (THIRD) OF AGENCY, § 7.05 (1) (2006).
Id. at § 7.05(2).
Based on the foregoing, Plaintiff's motion for reargument must be DENIED.
IT IS SO ORDERED.