Opinion
C.A. No. 98C-03-229 WCC
Submitted: May 31, 2000.
Decided: November 8, 2000.
On Defendant Double S. Developers, Inc.'s Motion for Summary Judgment. Granted.
On Defendant Ark Contractors, Inc.'s Motion for Summary Judgment. Denied.
Bruce L. Hudson, Esquire, 300 Delaware Avenue, Suite 1130, Wilmington, Delaware 19801. Attorney for Plaintiff.
John C. Phillips, Jr., Esquire and James Hall, Esquire, 1200 North Broom Street, Wilmington, Delaware 19806. Attorneys for Defendant Double S. Developers, Inc.
Louis J. Rizzo, Jr., Esquire; 1225 North King Street, Legal Arts Building, Suite 900, Wilmington, Delaware 19801. Attorney for Defendant Ark Contractors, Inc.
Richard W. Pell, Esquire and Susan A. List, Esquire, 300 Delaware Avenue, Suite 1100, P.O. Box 2092, Wilmington, Delaware 19899. Attorneys for Defendant Mun Soek Lee, d/b/a Rising Sun Contractors.
MEMORANDUM OPINION
Double S. Developers, Inc. ("Double S.") was the developer, general contractor, and owner of the subdivision, York Farms, ("York Farms project"), in Bear, Delaware. Double S. subcontracted all roof, siding, gutter, and deck work to Ark Contractors, Inc. ("Ark"), as an independent contractor, pursuant to an agreement dated October 10, 1996. In turn, Ark subcontracted the siding work on York Farms to Mun Soek Lee ("Mr. Lee") d/b/a Rising Sun Contractors ("Rising Sun"), as an independent contractor, pursuant to an agreement dated January 10, 1997. Mr. Lee subcontracted the siding installation work to Myeong S. Hyon ("Mr. Hyon"), and the Plaintiff was an employee of Mr. Hyon.
It stated that the subcontractor. Ark, shall furnish all supervision, labor, tools, equipment, materials and supplies necessary to perform roofing, siding, gutters, and deck work. In addition, it stated that Ark shall initiate, maintain and supervise all safety precautions and programs against injury to persons and property. It further states that Ark is an independent contractor.
This was a blanket agreement that was in effect during the time of York Fanns. It states that Rising Sun is an independent contractor and not an employee of Ark. It further states that Rising Sun was to supply and be responsible for all tools and equipment necessary for the work.
On May 26, 1999, a default judgment was entered against Mr. Hyon.
On September 18, 1997, the Plaintiff was working on a townhouse on Lot 41, 225 Comwell Drive in York Farms. He was instructed to go up on the roof of the residential structure and install the roof brackets for the pump-jack scaffold poles so that Mr. Hyon's crew could install the siding. While working on the roof, he slipped and fell backwards off the roof more than 20 feet to the ground, sustaining serious injuries. He brought suit against Double S. and the chain of subcontractors that trickled down to his employer, Mr. Hyon. With the exception of Mr. Hyon, these contractors have individually filed summary judgment motions. During a May 31, 2000 hearing, the Court found a disputed issue of fact and denied Mr. Lee d/b/a Rising Sun's summary judgment motion. But, it reserved decision on the motions filed by Double S. and Ark. As such, this is the Court's decision on their motions.
The Court also granted summary judgment for all defendants for the claims that they violated provisions of OSHA under the theory of negligence per se.
The Plaintiff asserts that Double S. and Ark were negligent in that they:
(a) Failed to provide plaintiff Chen T. Jin with a reasonably safe area within which to work;
(b) Failed to provide plaintiff with proper and adequate equipment with which to do his job safely;
(c) Failed to adequately inspect the work being performed by his subcontractors and employees including plaintiff Jin, which inspection if adequately done, would have disclosed that plaintiff Jin's work area and/or work assignment was not safe;
(d) Failed to correct unsafe conditions in the work area where plaintiff was doing his work;
(e) Failed to adequately supervise and direct that the work being performed be performed safely;
(f) Failed to institute and/or enforce safety rules, regulations, policies and practices at the work site, including the area where plaintiff was working; and
(g) Violated the provisions of governmental regulations including the provisions of OSHA of 1970, including but not limited to, 29 C.F.R. § 1926.500 (g), et.seq. (OSHA), and 19 Del. C. § 106, et.seq., thus being negligent per se.
See Plaintiff's Fifth Amended Complaint.
Double S. and Ark separately argue that due to their roles at the construction site as they related to work performed by the Plaintiff, they had no duty to protect the Plaintiff.
STANDARD OF REVIEW
Summary judgment will be granted when, in viewing the record in the light most favorable to the non-moving party, the movant has shown that no genuine issues of material fact exist and that the movant is entitled to judgment as a matter of law. When a motion for summary judgment is supported by a showing that there are no material issues of fact, the burden shifts to a nonmoving party to demonstrate that there are material issues of fact.
Super. Ct. Civ. R. 56(c).
Moore v. Sizemore, Del. Supr., 405 A.2d 679 (1979).
DISCUSSION
In order to be held liable for negligence, the defendants have to be under a legal obligation, a duty, to protect the plaintiff from the risk of harm that caused his injuries. And, the question of duty is traditionally an issue for the Court. Here, the applicable law is that neither an owner nor general contractor has a duty to protect an independent contractor's employee from hazards created by the doing of contract work or the condition of the premises or the manner in which the work is performed unless the owner or general contractor retains active control over the manner in which the work is carried out and the methods used. In Seeney v. Dover Country Club Apartments, Inc., this Court explained:
This concept of active control, though an elastic one, is ordinarily not inferred from the mere retention by the owner or general contractor of a right to inspect the work of an independent contractor or to exercise general superintendence over such work in order to assure complicity with the contract terms. Instead, the right to control must go directly to the manner or methods used by the independent contractor in his performance of the delegated tasks.
Id. at 621.
As such, the issue raised by the motions is whether Double S. or Ark retained active control over the manner in which the siding work was carried out and the methods used.
A. Double S .
Based upon the deposition testimony submitted to the Court and the arguments made during the hearing, the Court finds that Double S. did not retain active control over the manner in which the Plaintiff's work was carried out or the methods used. Double S. never had work-related contact with the subcontractors' workers. For example, while Mr. McFarland, Double S.'s superintendent, stated he would observe the subcontractors' work to ensure that it complied with the contract, he never told Ark or Ark's subcontractors how to do their job. In addition, Mr. McMahon, Double S.'s vice president, stated that he would only hold safety meetings for Double S.'s employees and that the subcontractors were responsible for the safety of their own employees. The Court finds that these examples represent more of a general superintendence than active control in the manner and methods used. The Court in Seeney found that the general contractor had a right to inspect the work or to exercise general superintendence without retaining active control.
See Seeney, 318 A.2d at 621.
In support, the Court looks to an analogous case, Bryant v. Delmarva Power Light Company. In that case, the Court addressed whether the utility defendants exercised active control over the method and manner of a construction company, Gates Construction Company ("Gates"), who was hired under contract to reconstruct the foundation of a tower. One of Gates's employees was injured during the construction. The Court found that the utility defendants did not actively control the method and mariner of Gates's work despite the fact that the utility defendants dictated the concrete mix designs to be used by Gates and, on occasion, provided Gates with direction as to how best to proceed in order to achieve the desired results. The Court concluded that in taking these actions, the utility defendants did no more than maintain general superintendence over Gates's work in order to safeguard the integrity of the results of the work.
Del. Super., C.A. No. 89C-08-070, Babiarz, J. (Oct. 2, 1995) (Mem. Op.).
Id. at 11.
Id.
In the present case, the Court finds that there was even less interaction between Double S. and the subcontractors as there was in Bryant. Double S. did not retain the right of control that went directly to the manner or methods used by Mr. Hyon in the Plaintiff's performance of the delegated task of siding. And, while Mr. Kokoszka, Ark's general superintendent, stated that Ed Wise, a Double S. estimator, instructed how he wanted his particular job sites to run, no specifics and no elaboration were provided for the Court to conclude that it was anything more than general superintendence. Again, while Mr. McFarland would observe the subcontractors' work for compliance with the contract and imposed the use of hard hats and handrails as safety precautions, they were examples of general superintendence rather than active control. As a result, the Court finds that, as a matter of law, Double S. did not actively control the method and manner of the Plaintiff's work and consequently had no duty to the Plaintiff.
B. Ark
The Court finds the interaction between Ark, Rising Sun and Hyon to be more troublesome. This is not the first time there have been safety concerns between Ark and Rising Sun as evidenced by the 1999 decision of District Judge Robinson in Li v. Capano Builders Inc., et al. Approximately nine months before the incident that is the subject of this litigation, Ark had similarly subcontracted the siding work at a development property known as "Bear Crossing" to Mr. Lee d/b/a Rising Sun, who further subcontracted the work to Chung Nam Pak, who, in turn, employed De Zhu Li. Li was killed when a pole at the construction site struck him. At a minimum, this should have heightened Ark's concern about the safety precautions and procedures instituted by Rising Sun at the time of the Plaintiff's accident. Further, the Court has significant questions as to the business practices of Rising Sun that reasonably should have caused Ark to be concerned about the manner and methods that would be utilized to perform the siding work. From the testimony of Mr. Lee, it appears that Mr. Lee ran Rising Sun as nothing more than a shell company with no employees and hired other individuals with no assets to perform the siding work. To believe those individuals were independent and financially capable to perform the work without supervision stretches one's imagination. As such, it is unreasonable to believe that Ark would divorce themselves from control and supervision of the work areas of Rising Sun and Mr. Hyon, having knowledge of the management and competency concerns with Rising Sun and any subcontractor he would eventually hire. To believe the assertions presently made by Ark would require the Court to give greater weight and credibility to the testimony of Mr. Lee than the Court believes is presently warranted. The Court simply finds that there remains sufficient questions about the interconnection of control and supervision between Ark, Rising Sun and Hyon to grant summary judgment at this point in the litigation. As such, Ark's motion is DENIED.
D. Del., C.A. No. 97-549-SLR, Robinson, J. (March 26, 1999) (Mem. Op.).
CONCLUSION
For the reasons set forth above, the Court finds that Double S. "s Motion for Summary Judgment is hereby GRANTED and Ark's Motion for Summary Judgment is hereby DENIED.