Summary
In Marks, it was significant that the plaintiff claimed that the landowner "actively created a dangerous condition that would not have normally existed under a painting contract."
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No. 98C-09-032 HDR.
Submitted: January 18, 2000.
Decided: April 18, 2000.
Douglas B. Catts, Esq. and Donna L. Harris, Esq., of Schmittinger Rodriguez, P.A., Dover, Delaware, for Plaintiff.
Arthur D. Kuhl, Esq., Law Offices of Michael A. Pedicone, P.A., Wilmington, Delaware and Sue Lawless, Esq., of Franklin Prokopik, P.C., Baltimore, Maryland, for Defendant Tyson Foods, Inc.
Carl N. Kunz, III, Esq., of Murphy, Spadaro Landon, Wilmington, Delaware, for Defendant Messick Gray Construction, Inc.
Andre M. Beauregard, Esq., of Brown, Shiels, Beauregard Chasanov, Rehoboth Beach, Delaware, for Defendant Gray's Milling.
This civil action arises from an industrial accident involving a Delaware worker employed by a Delaware painting contractor under a contract for services with a Delaware corporation for work to be performed at one of its plants in Maryland. The issues under the motions now before me are whether Delaware or Maryland law applies and whether Defendant Tyson Foods, Inc. is entitled to summary judgment. Because Delaware has the most significant relationship with the parties and the occurrence, I hold that Delaware law applies. Because material issues of fact exist, I further hold that Tyson's is not entitled to summary judgment.
I. FACTS
Plaintiff Mark Marks is a resident of Seaford, Delaware. Gray's Milling is a sole proprietorship owned by Stephen Gray that has its principal place of business in Bridgeville, Delaware. Messick Gray Construction, Inc. is a Delaware corporation with its principal place of business in Bridgeville, Delaware. Tyson Foods, Inc. is also a Delaware corporation and it transacts business nationwide and in Delaware where it sells products, conducts operations and enters into contracts with Delaware companies.
Tyson entered into a contract with Gray's Milling for the painting of grain tanks in Snow Hill, Maryland. Although Messick Gray and Gray's Milling are two separate entities, they frequently have worked together in Delaware. The work done at Tyson's Snow Hill, Maryland plant was the first occasion on which Messick Gray and Gray's Milling had ever worked together in Maryland. Pursuant to its contract with Tyson, Messick Gray was to perform demolitions of old grain tanks and the construction of new ones. In order to complete this contract, Messick Gray subcontracted Gray's Milling to do some of the demolition work. When Tyson later learned that Messick Gray would be unable to do the painting work on the tanks, it hired Gray's Milling to do that work. While this work was being done on September 22, 1997, Marks was injured while painting the tanks. Employees of Messick and Gray, who were working above him, allegedly caused a forty pound iron angle to fall upon his head.
II. DISCUSSION A. Choice of Law
Delaware applies the "most significant relationship test" of the Restatement (Second) of Conflicts in order to resolve choice of law issues. Section 145 of the Restatement provides:
Travelers Indemnity Co. v. Lake, Del. Supr., 594 A.2d 38, 40 (1991).
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
Section Six of the Restatement lists the following factors which must be applied in determining which state has the most significant relationship to the parties and the occurrence:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
In actions for personal injury, the law of the state where the injury occurred usually applies. However, the law of some other state will apply instead if that state has a more significant relationship to the occurrence and the parties. The law selected by application of the rule of Section 145 determines whether the actor's conduct was tortious, what defenses may be raised, and whether contributory fault bars the plaintiff's recovery in whole or in part.
Restatement (Second) of Conflicts § 146 (1969).
Id.
Id. § 156(1).
Id. § 161.
Id. § 164.
The most significant relationship test requires the court to apply the law of the state with the most significant contacts, as opposed to the highest number of contacts listed in Sections 145 and 6. In other words, the test is qualitative, not quantitative. The inherent flexibility of this test mandates that each case be decided on its own facts. If the facts warrant it, the court may decide to apply the law of one state to some issues, while applying the law of a different state to other issues.
Lake, 594 A.2d at 48 n. 6.
See id.
Id. at 48.
See Restatement (Second) of Conflicts § 145(2) (1969); see also Sabell v. Pacific Intermountain Express Co., Colo. Ct. App., 536 P.2d 1160, 1165-66 (1975) (applying Iowa law to the issue of the standard of care and Colorado law to the issue of comparative or contributory negligence).
Tyson seeks a determination that Maryland law applies. Maryland has enacted a statutory cap that limits a plaintiff's ability to collect non-economic damages. Delaware, on the other hand, imposes no such restriction. The policy behind Maryland's cap on non-economic damages is to ensure that Maryland citizens will be able to procure insurance at an affordable rate. However, Delaware has a strong public policy against imposing any limitation on damages in order to ensure that its citizens receive the full recovery that the jury awards them. In Judge Trucking v. Cooper, this Court noted that Delaware has refused to limit the amount of damages that individuals may recover. Since none of the parties to the Judge Trucking case were Maryland residents, the Court found that a refusal to apply Maryland's cap on non-economic damages would not have any impact on the ability to obtain affordable insurance in Maryland. As a result, the Court found that Delaware's interest with respect to this particular issue was greater, qualitatively, than Maryland's, and that therefore, Delaware law should apply.
Md. Code Ann., Courts and Judicial Proceedings § 11-108 (1999).
Anchor Packing Co. v. Grimshaw, Md. Ct. Sp. App., 692 A.2d 5, 13 (1997).
Judge Trucking Co. v. Cooper, C.A. No. 92C-03-041, 1994 WL 680029 at *5, Graves, J. (Sept. 19, 1994) (Mem. Op.).
Id.
Id.
Id.
Another Delaware precedent that is helpful here is Rew v. Sizzler Restaurant International, Inc. Rew involved a slip and fall that occurred at a Sizzler Restaurant located in Maryland. The plaintiff was a Delaware resident, and the Defendant was a Delaware corporation that operated restaurants nationwide. This Court declared that the occurrence of the accident in Maryland was fortuitous, and that the consequences of the injuries would have the greatest impact in Delaware, where the plaintiff resided. The Court concluded that, while Maryland restauranteurs probably had expectations that Maryland law would apply, "the relative importance of the issue of equitable and adequate compensation for the [plaintiff's] alleged personal injuries" favored the application of Delaware law on the issue of the Plaintiff's right to recover damages. Therefore, the Court held that Maryland's cap on non-economic damages would not apply.
Del. Super., C.A. No. 93C-06-021, Ridgely, P.J. (May 12, 1995) (Tr. Ct. Dec.).
Id.
Id.
Id.
Id.
Rew, C.A. No. 93C-06-021.
The present case is similar to both Judge Trucking and Rew. The parties in the present case all have significant contacts with Delaware. Although the accident occurred at Tyson's plant in Maryland, and Tyson does business nationwide, Tyson is a Delaware corporation and it transacts business in Delaware. Indeed, all parties are either Delaware citizens or Delaware business entities. Furthermore, the consequences of the alleged injuries are occurring here. I find that the most significant contacts are in Delaware as opposed to Maryland. While Maryland has an interest in allowing all businesses to better afford insurance coverage for activities there, Delaware has a greater interest, qualitatively, in applying its law on the issue of a Delaware citizen's right to recover the full amount of actual damages. I conclude Delaware law should apply on this issue.
Turning to the issue of contributory or comparative negligence, Section 164 of the Restatement (Second) of Conflict of Laws provides:
(1) The law selected by application of the rule of § 145 determines whether contributory fault on the part of the plaintiff precludes his recovery in whole or in part.
(2) The applicable law will usually be the local law of the state where the injury occurred.
The Court has already selected Delaware law under the rule of § 145. While Section 164 appears to suggest that the law of the state where the injury occurred will usually apply, it must be read in context with Section 146 which provides that the law of some other state will apply if that state has a more significant relationship to the occurrence and the parties than the state where the injury occurred.
Maryland follows the common law standard of contributory negligence, which acts as a complete bar to the plaintiff's recovery. Delaware has enacted a comparative negligence statute. In Delaware, the plaintiff can still recover, provided that his or her negligence does not exceed the combined negligence of all of the defendants.
Union Memorial Hospital v. Dorsey, Md. Ct. Sp. App., 724 A.2d 1272, 1275 (1999).
Id.
In Rew, this Court held that Delaware law applied to the issue of the plaintiff's comparative negligence. I reasoned that the occurrence of the accident in Maryland was fortuitous and that the consequences of the injuries would be felt in Delaware, where the plaintiff resided. Furthermore, while Maryland restauranteurs probably had expectations that Maryland law would apply, "the relative importance of the issue of equitable and adequate compensation for the alleged personal injuries" in the case favored "a choice of Delaware law on the issue of comparative negligence."
Rew, C.A. No. 93C-06-021.
Id.
Id.
Other jurisdictions have also held that, with respect to the issue of comparative or contributory negligence, the law of the state where the injury occurred does not apply when another state has a more significant relationship to the occurrence and the parties. In Chambers v. Dakotah Charter, Inc., the plaintiff sustained injuries in Missouri when she slipped and fell on the steps of a bus. The court held that South Dakota's comparative negligence should apply instead of Missouri's comparative negligence law, because the piece of candy that caused the plaintiff to slip and fall was distributed to passengers in South Dakota, because "South Dakota was the domicile, residence, place of incorporation and place of business of the parties, as well as the place where the relationship of the parties was centered," and because the economic impact of the law would be felt in South Dakota, where the parties resided.
S.D. Supr., 488 N.W.2d 63, 64 (1992).
Id. at 68-69.
In Sabell v. Pacific Intermountain Express Co., the plaintiff suffered injuries as the result of a motor vehicle accident that took place in Iowa. The plaintiff was a resident of Colorado, and the two corporate defendants were both residents of and authorized to do business in Colorado. The court held that, with respect to the issue of comparative or contributory negligence,
Id.
the specific approach to applying the choice of law rule of § 145 should be that the domicile, residence, nationality, place of incorporation and place of business of the parties, and the place where the relationship, if any, between the parties is centered, are to be weighed more heavily and are to be given more importance in such a choice of law determination, than the contacts of the place where the injury occurred, and the place where the conduct causing the injury occurred.
Id. at 1166.
The court pointed out that Colorado, as the forum state, had a legitimate interest in applying its law and policy regarding comparative negligence to both its own residents and to other persons who sought relief in Colorado courts. The court, thus, decided to apply Colorado's comparative negligence statute instead of Iowa's doctrine of common law contributory negligence.
Id.
Id.
The United States District Court for the District of Colorado later relied on Sabell in Conlin v. Hutcheon. In Conlin, the plaintiff was a citizen of Illinois, the defendant was a citizen of Colorado, and the injury occurred in Nebraska. The relationship between the plaintiff and the defendant was centered in Nebraska, because they were both enrolled at Wayne State University in Nebraska and were temporarily residing in Wayne, Nebraska. Even though the relationship between the parties was centered in Nebraska, the Court found that the occurrence of the injury in that state was fortuitous, and that Colorado's relevant policies which promoted rules of recovery in negligence actions surpassed Nebraska's policies and Consequently, the Court applied interests in the determination of the issue. Consequently, the Court applied Colorado's comparative negligence statute rather than Nebraska's doctrine of contributory negligence.
560 F. Supp. 934, 935-36 (1983).
Id. at 934.
Id. at 935.
Id. at 936.
Id.
Turning to the choice of law issue on standard of care, Delaware and Maryland law differ regarding the standard of care required of a landowner with respect to passive or latent dangerous conditions on the premises. Under Maryland law, an owner is not liable for injuries to an employee of an independent contractor unless the premises remain under the owner's control and "the injuries arise out of the abnormally dangerous condition of the premises, the owner being chargeable with knowledge of the danger." Under Delaware law, an owner is not liable for injuries sustained by an employee of an independent contractor from hazards created by the doing of the contract work or the condition of the premises or the maimer in which the work is performed unless the owner retains active control over the manner in which the work is performed and the methods used. The Delaware standard is less favorable to landowners than the Maryland standard, because Delaware does not require the condition causing the injuries to be abnormally dangerous.
LeVonas v. Acme Paper Board Co., Md. Ct. App., 40 A.2d 43, 45 (1944); Cutlip v. Lucky Stores, Inc., Md. Ct. Sp. App., 325 A.2d 432, 438 (1974).
O'Connor v. Diamond State Telephone Co., Del. Super., 503 A.2d 661, 663 (1985); Seeney v. Dover Country Club Apts., Del. Super., 318 A.2d 619, 621 (1974).
Delaware and Maryland law do not differ, however, regarding the standard of care required of a landowner for active negligence. When a defendant actively creates a dangerous condition that causes injury, the reasonable prudent person standard applies. According to this standard, the defendant has a duty to act reasonably under the circumstances and to protect others against reasonably foreseeable events.
Bryant v. Delmarva Power Light Co., Del. Super., C.A. No. 89C-08-070, 1995 WL 653987 at *13-*14, Babiarz, J. (Oct. 2, 1995); Figgs v. Bellevue Holding Co., Del. Super., 652 A.2d 1084, 1092-93 (1994); Delmarva Power Light Co. v. Burrows, Del. Supr., 435 A.2d 716, 718 (1981); Eastern Shore Public Service Co. v. Corbett, Md. Ct. App., 177 A.2d 701, 709 (1962).
Burrows, 435 A.2d at 718; Corbett, 177 A.2d at 709.
Marks has not alleged that Tyson is vicariously liable for acts of negligence committed by employees of Gray's Milling or Messick Gray. Instead, Marks claims that Tyson actively created the dangerous condition that caused his injuries. Because Delaware and Maryland law do not differ regarding the standard of care applicable to a landowner for active negligence, it is unnecessary for the court to make a choice of law ruling on this issue.
B. Defendant Tyson's Motion for Summary Judgment
Tyson argues it is entitled to summary judgment because it owed no legal duty to Marks on the facts of this case. At this stage, the facts must be viewed in the light most favorable to Marks as the non-moving party. Additional facts relevant to Tyson's motion for summary judgment are as follows: Tyson acted as a prime contractor when it entered into separate contracts with Gray's Milling and Messick Gray without the use of a general contractor or a construction manager. Tyson gave each contractor a schedule for its job and issued deadlines for completion of the work. Tyson knew that material had been left on the drag conveyor above where Marks was working. However, Tyson did not speak with anyone from Messick Gray about the material or ask why it was there. Tyson was also aware that the contractors were being scheduled as they were. The employees of Gray's Milling informed Tyson that they did not want persons working overhead while they were painting because of safety concerns. The employees of Messick Gray also informed Tyson that other contractors should not be working below them for safety reasons. Marty Hale, Messick Gray's crew foreman, dealt with Tyson directly regarding this safety issue, because Gray's Milling was working for Tyson under a separate contract at the time, and Tyson was responsible for scheduling the two contractors' work. After Hale had informed Tyson about the situation, Tyson indicated that it would take care of it. Thus, Tyson was aware that Messick Gray's employees were working above Gray's Milling's employees and knew about the safety issue.
Tyson argues that it owed no duty to Marks, because Gray's Milling was an independent contractor, and Tyson was merely a property owner that did not retain sufficient control over the work area. Marks argues that summary judgment is inappropriate, because Tyson had a duty to exercise reasonable care under the circumstances and it breached this duty by creating the dangerous condition that caused his injury.
The Court must grant summary judgment if the evidence in the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The moving party has the burden of demonstrating that no issue of material fact exists. The Court must view all facts and inferences in a light most favorable to the non-moving party. The non-moving party "may not rest upon the mere allegations or denials of [its] pleading," but must set forth in its response, by affidavits or otherwise, specific facts demonstrating the existence of a material issue for trial. If the non-moving party fails to respond in this manner, the Court must grant summary judgment.
Super. Ct. Civ. R. 56(c); Borish v. Graham, Del. Super., 655 A.2d 831, 833 (1994).
Boorish, 655 A.2d at 833.
Allstate Auto Leasing Co. v. Caldwell, Del. Super., 394 A.2d 748, 752 (1978).
Super. Ct. Civ. R. 56(e).
Id.
Tyson has failed to show that, as a matter of law, it owed no duty to Marks. Furthermore, genuine issues of material fact exist regarding whether Tyson actively created the dangerous condition that caused Marks' injuries and whether Tyson acted reasonably to protect against a reasonably foreseeable risk of harm.
Under Delaware law, a property owner generally has no duty to protect an independent contractor from the dangers created by the doing of the work, the condition of the premises or the manner in which the work is performed, unless the owner retains control over the manner of carrying out the work and the methods used. Under Maryland law, an owner is not liable for injuries to an employee of an independent contractor unless the premises remain under the owner's control and the injuries result from the abnormally dangerous condition of the premises. However, under both Delaware and Maryland law, when the defendant actively creates the hazardous condition that causes the plaintiff's injury, the defendant has a duty to act as a reasonable, prudent person under the circumstances. Under the reasonable prudent person standard, a person or entity has a duty to behave reasonably and to protect against reasonably foreseeable events. A party can be held liable for simple negligence if he or she breaches this duty "by failing to protect against an event that a reasonably prudent person would protect against." Whether an entity has breached this duty can be demonstrated by its failure to comply with OSHA regulations, as a violation of these regulations constitutes evidence of negligence.
Seeney, 318 A.2d at 621; O'Connor, 503 A.2d at 663.
LeVonas, 40 A.2d at 45; Cutlip, 325 A.2d at 438.
Bryant, C.A. No. 89C-08-070, 1995 WL 653987 at *13-*14; Figgs, 652 A.2d at 1092-93; Burrows, 435 A.2d at 718; Corbett, 177 A.2d at 709.
Burrows, 435 A.2d at 718; Corbett, 177 A.2d at 709.
Bryant, C.A. No. 89C-08-070, 1995 WL 653987 at *13 (quoting Figgs, 652 A.2d at 1092, and Burrows, 435 A.2d at 718); see Corbett, 177 A.2d at 709.
Toll Brothers, Inc. v. Considine, Del. Supr., 706 A.2d 493, 498 (1998); DiSabatino Bros. v. Baio, Del. Supr., 366 A.2d 508, 511 (1976); Brady v. Parsons Co., Md. Ct. App., 609 A.2d 297, 306 (1992).
In the present case, Marks does not contend that the contract work itself created the peril or that the premises were inherently dangerous. Nor does he maintain that Tyson is vicariously liable for acts of negligence that Gray's Milling and Messick Gray committed. Instead, he claims that Tyson actively created a dangerous condition that would not normally have existed under a painting contract. Marks has proffered the testimony of an expert on safety management and contractor safety who has opined that Tyson breached the standards of care found in the OSHA regulations and ANSI standards and was actively negligent in creating a hazardous condition at its workplace. Specifically, the expert has opined that Tyson actively created a hazardous condition: first, in scheduling its contractors so that one contractor was doing work directly above the area where another contractor was working; second, by failing to declare the area a construction area so that employees and subcontractors would be aware that it was a 100% hard hat area; and finally, by failing to move Messick Gray's employees and their materials so that they were not directly above Gray's Milling's employees. Because a genuine issues of material fact exist regarding whether Tyson breached the standard of care, I deny summary judgment.
III. CONCLUSION
Delaware has the most significant relationship, qualitatively, with the parties and the occurrence with respect to the choice of law issues in this case. Therefore, Marks' Motion to Apply Delaware Law is GRANTED. Because there are issues of material fact as to whether Tyson actively created the hazardous condition that caused Marks' injuries and whether Tyson breached its duty to protect Gray's Milling's employees against all reasonably foreseeable risks of harm, Tyson's motion for summary judgment is DENIED.
IT IS SO ORDERED. _________________ President Judge
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