Opinion
C.A. No. 99C-02-019-JEB
Submitted: December 6, 2000
Decided: March 26, 2001
Edward B. Carter, Esq., Paul M. Lukoff, Esq., Larry Bendesky, Esq.
Dear Counsel:
This case is based on an industrial site accident which occurred at defendant Motiva's Delaware City refinery. Plaintiff Anthony Leister was an employee of an independent contractor which was engaged in the repair of a large vessel known as a desulphurizer. Leister was injured when he crawled out of the vessel backward through a small portal, called a manway, onto a scaffold three or four feet above the ground and climbed off the scaffold backward. Immediately adjacent to the scaffold was a piece of equipment known as a manlift, essentially a cherry-picker mounted on a moveable platform, operated by workers in a bucket high above the ground. As Leister took a step after getting his feet on the ground, the manlift moved and ran over one of Leister's feet causing serious injury.
The jury most likely found Motiva liable based on plaintiffs claims of violation of industry safety standards. It found that Leister too was negligent but that his negligence was not a proximate cause of his injury.
Motiva has moved for judgment as a matter of law pursuant to Civil Rule 50(b) or alternatively for a new trial pursuant to Civil Rule 59.
Motiva' s Rule 50(b) motion is based on the admission of expert testimony that Motiva violated § 1910.146 of regulations adopted by the Occupational Safety and Health Administration. The Court admitted this testimony since there was ample evidence in the record that Motiva had taken an active role in the enforcement of safety regulations and that Motiva had included the language of § 1910.146 in its own safety manual. Moreover, Motiva conceded pre-trial that it had no objection to testimony about OSHA regulations for the purpose of allowing the jury to make judgments concerning common law negligence. The jury was not instructed that an OSHA violation would constitute per se negligence and was instructed to determine Motiva's liability only on theories of common law negligence. See Toll Brothers, Inc. v. Considine 786 A.2d 493, 498, Del. Supr. (1998). Motiva's Rule 50(b) motion is Denied.
Motiva's motion for new trial under Rule 59 focuses on the jury's finding that Leister was negligent but that his negligence was not a proximate cause of his injury. The Court cannot know what acts of negligence the jury found Leister committed or how it arrived at the conclusion that those acts were not the proximate cause of his injury. The Court must indulge in the time honored speculation of drawing all inferences in favor of the verdict.
The jury could have found that Leister was negligent in backing out of the manway, but the accident would have happened even if he came out frontwards, because the manlift moved as soon as his feet hit the ground. There is enough logic in this theory to require the Court to deny Motiva's motion for a new trial.