Opinion
C.A. No. 02C-02-190 CLS.
Submitted: May 26, 2004.
Decided: July 28, 2004.
On Defendant General Motors Corporation's Motion for Summary Judgment.
GRANTED.On Defendant Morrison Knudsen Corporation's Motion for Summary Judgment.
GRANTED.On Defendant Battaglia Mechanical, Inc.'s Motion for Summary Judgment.
GRANTED.On Defendant J.S. Alberici Construction Co., Inc.'s Motion for Summary Judgment.
GRANTED.On Defendant Conti Electric, Inc.'s Motion for Summary Judgment.
GRANTED.On Defendant Sylvan Industrial Piping Inc.'s Motion for Summary Judgment.
GRANTED.On Defendant FATA Automation, Inc.'s Motion for Summary Judgment.
GRANTED.Joseph J. Rhoades, Esquire, A. Dale Bowers, Esquire, Law Office of Joseph J. Rhoades, Wilmington, Delaware; Carin A. O'Donnell, Esquire, Marston Shensky, P.C., Doylestown, Pennsylvania; Attorneys for Plaintiffs.
Louis J. Rizzo, Jr., Esquire, and David J. Soldo, Esquire, Reger Rizzo, LLP, Wilmington, Delaware, Attorneys for Defendant General Motors Corporation.
Gary H. Kaplan, Esquire, Goldfein Joseph, Wilmington, Delaware, Attorney for Defendant Morrison Knudsen Corporation.
Abigail E. Rodgers, Esquire, Tighe Cottrell Logan, Wilmington, Delaware, Attorney for Defendant Battaglia Mechanical, Inc.
Nancy Chrissinger Cobb, Esquire, Chrissinger Baumberger, Wilmington, Delaware, Attorney for Defendant I.D. Griffith, Inc.
William J. Cattie, III, Esquire, Rawle Henderson, LLP, Wilmington, Delaware, Attorney for Defendant J.S. Alberici Construction Co., Inc.
Mark L. Reardon, Esquire, Elzufon Austin Reardon Tarlov Mondell, P.A., Wilmington, Delaware, Attorney for Defendant Conti Electric, Inc.
Daniel P. Bennett, Esquire, Heckler Frabizzio, Wilmington, Delaware, Attorney for Defendant Sylvan Industrial Piping, Inc.
Norman H. Brooks, Jr., Esquire and Donald R. Kinsley, Esquire, Marks O'Neill O'Brien Courtney P.C., Wilmington, Delaware, Attorneys for Defendant FATA Automation, Inc.
MEMORANDUM OPINION
I. INTRODUCTION
Defendants General Motors Corporation ("GM"), Morrison Knudsen ("MK"), Battaglia Mechanical, Inc. ("Battaglia"), J.S. Alberici Construction Co., Inc. ("JSA"), Conti Electric, Inc. ("Conti"), Sylvan Industrial Piping Inc. ("Sylvan"), and FATA Automation, Inc. ("FATA") have individually filed Motions for Summary Judgment. Upon consideration of the evidence presented at oral argument, review of Defendants' motions and Plaintiffs' responses, this court concludes all of the Defendants' motions should be GRANTED.
II. BACKGROUND
This case arises from an incident at the GM Assembly Plant ("the Plant") on April 9, 1999. Plaintiff Robert O'Donnell ("O'Donnell") was working for Gallagher Kaiser, who was one of the independent contractors, on the retooling of the Plant. O'Donnell slipped in a puddle of some substance on the floor of the Plant and alleges injuries to his left arm, shoulder and knee as a result. Extensive discovery has taken place. Discovery was closed on May 28, 2004. What the substance was and who was responsible for its being there have never been identified. O'Donnell proposes two different theories for how the accident occurred. One is that a fork truck belonging to JSA leaked hydraulic or other fluid upon which he slipped. The other is that one of the Defendants placed materials containing fluid into bin(s) that subsequently leaked the fluid upon which he slipped. Defendants include the owner of the Plant, GM; two general contractors for the retooling, MK and JSA; and several sub- and sub sub-contractors, I.D. Griffith, Inc. ("IDG"), Battaglia, Conti, Sylvan, and FATA. All Defendants except IDG filed Motions for Summary Judgment.
III. STANDARD OF REVIEW
The court will grant summary judgment only if there are no genuine issues of material fact "and the moving party must show he is entitled to judgment as a matter of law." In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the non-moving party. Summary judgment, therefore, is appropriate only if, after viewing the evidence in the light most favorable to the non-moving party, the court finds no genuine issue of material fact.
Deakyne v. Selective Insurance Co., 728 A.2d 569, 570 (Del.Super. 1997) (internal citation omitted).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
Guy v. Judicial Nominating Com'n, 659 A.2d 777, 780 (Del.Super. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super. 1994).
IV. DISCUSSION
At oral argument, Plaintiffs separated their claims into those against Defendants whom they identified as having "supervisory" responsibility — GM, MK, and JSA — and those having "situational" responsibility — Battaglia, Conti, Sylvan, and FATA. The court concludes this is a reasonable division for analyzing whether the Defendants owed any duty to O'Donnell. Defendants having a supervisory responsibility must be shown to have "active control" over the work site before being found to owe any duty to O'Donnell. Defendants having situational responsibility must be shown to have produced the hazardous condition or have had knowledge of the hazardous condition before these Defendants owed a duty to O'Donnell.
Williams v. Cantera, 274 A.2d 698, 700 (Del.Super. 1971).
Wilson v. Derrickson, 175 A.2d 400, 402 (Del. 1961).
A. Whether GM, MK, or JSA exercised active control.
Well-settled Delaware law establishes that an owner or general contractor is not responsible for injuries to employees of subcontractors unless the owner or general contractor retains "active control over the manner in which the work is carried out and the methods used." Active control is "not inferred from the mere retention of 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." Previous cases have dealt with the issue of what activities are sufficient to support a finding of active control. Providing safety guidelines, inspecting the work and submitting change orders was held to not constitute active control. Having the authority to suspend work due to failure of the contractor to correct unsafe conditions, failure to carry out provisions of the contract, and conditions considered unsuitable for the prosecution of the work was held insufficient to be active control. Scheduling phases of work, providing materials; constructing a temporary site-office and storage facility, determining who could have access to certain areas of the project site, making security arrangements for the site, and advising an independent contractor of observed safety violations was held not sufficient to be active control. Active control was found when the defendant dictated the number of workers to be used by the subcontractor and supplied all construction materials, tools, equipment and facilities. However, even in the absence of active control, "a general contractor can . . . be held liable where the general contractor has voluntarily assumed responsibility for workplace safety." "Whether a duty exists is entirely a question of law . . ." to be determined by the court.
Williams, 274 A.2d at 700.
Id. at 701, see also Seeney v. Dover Country Club Apts., Inc., 318 A.2d 619, 621 (Del.Super. 1974) (citing additional cases).
Murson v. Henry Francis DuPont Winterthur Museum, Inc., 2001 WL 8985900 at *1 (Del.Super.).
Rafferty v. Century Eng'g, Inc., 2002 WL 480958 at *7-8 (Del.Super.)
Kilgore v. R.J. Kroener, Inc., 2002 WL 480944 at *6 (Del.Super.); Bryant v. Delmarva Power Light Co., 1995 WL 653987 at *9 (Del.Super.).
Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1092 (Del.Super. 1994).
Hawthorne v. Summit Steel, Inc., 2003 WL 23009254 at *2 (Del.Super.) (internal citation omitted).
Kilgore, 2002 WL 480944 at *7.
O'Donnell argues that the supervisory defendants' actions show they maintained active control over the workplace where he was injured to a degree sufficient to survive a motion for summary judgment. O'Donnell states GM was responsible for the movement of material in and out of the work area and assumed responsibility for safety in its contract with MK. MK, as project manager, had responsibility for monitoring safety activities and thus had active control. JSA had the requisite active control by having a safety plan and supervisor on site, as well as hiring persons responsible for clean-up of the work area. O'Donnell argues the court should consider the totality of the circumstances to determine whether there is active control. O'Donnell asserts that if any individual factor is insufficient, when the factors are considered together, they are sufficient to find active control.
GM counters that it is a matter of the quality of the control asserted that determines whether it had active control. GM denies being in control of the area in which the accident allegedly occurred. GM notes that it did not provide equipment or tools for any employees other than its own. GM emphasizes that a reservation of a right to inspect the work is insufficient to show active control. GM also notes that O'Donnell has only been able to show mere possibilities regarding the source of the fluid on which he slipped. O'Donnell has provided no evidence that GM caused the dangerous condition, or knew or should have known of the dangerous condition. GM thus concludes it is entitled to summary judgment.
JSA argues it did not have any control over the area in which the accident occurred. Having no responsibility for the area, JSA concludes it cannot be held to have active control. JSA points out there is only speculation regarding the source of the fluid, who had control of the area, and who had the responsibility for clean-up of the area. JSA concludes that because it did not have active control over the area in which O'Donnell was allegedly injured, it is entitled to summary judgment.
MK, like GM, states its responsibility was merely supervisory. MK concludes it did not have active control, and thus no duty to O'Donnell, making summary judgment for MK appropriate.
The court concludes none of the supervisory defendants had active control over the area in which O'Donnell was allegedly injured. The court finds the actions of the supervisory defendants were just that — supervisory. The court finds none of the activities rise to the level necessary for a finding of active control. While each defendant's actions must be analyzed under a totality of the circumstances test, the actions of the various defendants may not be lumped together to reach a finding that "someone" must have been responsible. If GM's actions, taken by themselves, do not give rise to liability on the part of GM, combining GM's actions with those of JSA and/or MK cannot raise the level of GM's responsibility such that GM now has liability. The same argument applies to the actions of both JSA and MK.
The court also finds none of the supervisory defendants voluntarily assumed responsibility for workplace safety. There was no evidence presented to show that any of the supervisory defendants had responsibility for workplace safety beyond the initial safety presentations to employees new to the work site. The court concludes a supervisory defendant must retain responsibility for day-to-day safety issues before being shown to have assumed responsibility for overall workplace safety.
The court concludes that neither GM, JSA, nor MK owed any duty to O'Donnell. The court, therefore, GRANTS GM's, JSA's, and MK's Motions for Summary Judgment.
B. Whether Battaglia, Conti, Sylvan, or FATA owed any duty to O'Donnell.
In order for a plaintiff to establish a prima facie case in a negligence action, it is necessary to prove both that an unsafe condition caused the accident and that such unsafe condition was either created by or known to, or should have been known to the defendant. The fundamental question is, therefore, whether or not the only reasonable inference to be drawn is that the defendant(s) were negligent. If more than one reasonable inference can be drawn, it is impermissible to allow the fact-finder to speculate upon the question of whose fault created the unsafe condition.
Wilson, 175 A.2d at 402.
Id.
Id. at 402-03.
O'Donnell argues several of the defendants alleged to have situational responsibility, and, therefore, a duty to him, were working in the area as subcontractors, any of whom could have been the source of the fluid. O'Donnell posits two theories for the source of the fluid. First, the fluid may have leaked from a fork truck that belonged to JSA in the area. Second, the fluid may have leaked from one or more bins in the area into which several of the defendants placed scrap from demolition work. O'Donnell concludes that if it cannot be determined who placed the material in the bin(s) that leaked, everyone who placed material in the bin(s) should be held responsible. O'Donnell argues this is enough to survive a summary judgment motion and allow the jury to decide the matter of liability. O'Donnell also argues the situational defendants may have liability based on voluntary assumption of control of safety issues.
Conti counters it had no connection with any fork truck, so if the first theory of the source of the fluid is correct, it has no liability. Conti states it was not working in the area of the spill on the day of the accident, so its employees could not have been the source of the fluid if the second theory of the source of the fluid is correct. Conti further argues it did not learn of the dangerous condition until after the fall so it can have no responsibility for clean-up. Conti concludes it owed no duty to O'Donnell and summary judgment in its favor is appropriate.
Sylvan states it was not working on the site on the day of the accident. Sylvan's subcontractor, Battaglia, was working on the site that day, but Sylvan did not retain active control over Battaglia's employees. Sylvan concludes it has no liability under either of the theories of the source of the fluid, making summary judgment in its favor appropriate.
Battaglia states it had no fork truck at the site, so it has no liability under the first theory of the source of the fluid. Battaglia further states it was not working in the area on the day of the accident, so it could not have placed anything into the bin(s) that leaked. Furthermore, Battaglia states even if it had put material in the bin(s), it was not handling anything that contained fluid, so it could not have been the source of the fluid under the second theory of the source of the fluid. Battaglia concludes it has no liability, making summary judgment in its favor appropriate.
FATA also argues it had no fork truck at the site, so it cannot be liable under the first theory of the source of the fluid. FATA also states it was doing only precise demolition work and did not place anything containing fluid into the bin(s), so it cannot have been the source of the fluid under the second theory of the source of the fluid. Additionally, FATA did not control the area of the accident and did not know of the existence of the dangerous condition until after the accident, so it cannot be held liable for the accident, making summary judgment in its favor appropriate.
The court concludes the two theories of the source of the fluid amount to mere speculation by O'Donnell as to the cause of the accident. Accordingly, the court concludes it would be error to submit the question of liability to a jury. This court finds the present case presents circumstantial evidence against the Defendants similar to Wilson. In Wilson, the court directed a verdict for defendants on the basis of circumstantial evidence against defendant regarding the cause of her fall in defendants' store. The court finds Wilson also stands for the proposition that a plaintiff may not be able to choose a theory in order to proceed when he lacks support for that theory. In Wilson, the plaintiff proceeded on the theory defendant was negligent without anything to support that theory, other than that the theory "might" be possible. As in Wilson, this court finds O'Donnell has nothing more than speculation as to the cause of his accident.
Id.
Id. at 402.
The court also finds the facts of the present case to be analogous to those in Wilhelm v. Globe Solvent Co. In Wilhelm, the plaintiff was injured when allegedly impure dry-cleaning solvent caught fire and he was burned. The solvent came from two distributors, but plaintiff was unable to determine which one had supplied the defective solvent. The court held that "if the claim [could not] be supported as to any specific defendant, then that defendant should be granted summary judgment."
373 A.2d 218 (Del.Super. 1977).
Id. at 223.
In Wilhelm the court allowed further discovery to enable plaintiff to determine which defendant was responsible for the defective solvent. This court notes that in a motion for summary judgment, the facts must be viewed in a light most favorable to the nonmoving party. In the present case, however, discovery has closed. The court finds that at the present time O'Donnell concedes he does not know the source of the fluid. The court concludes O'Donnell cannot, under any circumstances, show which of the defendants was responsible for the dangerous condition. The court finds no reason not to rule on the summary judgment motion at this time.
Burkhart, 602 A.2d at 59.
The court finds the analysis regarding the defendants alleged to have situational responsibility does not change the conclusion that summary judgment is appropriate for JSA. Even though JSA is alleged to have responsibility for a fork truck that "might" have been the source of the fluid, there is nothing to support this theory over the other. The situation is, therefore, still analogous to those in Wilson and Wilhelm as O'Donnell cannot show JSA was responsible for the dangerous condition. And as noted above, since discovery is closed, the court concludes O'Donnell cannot show who was responsible.
The court finds the facts of the present case distinguishable from those in Howard v. Food Fair Stores, New Castle Inc. In Howard, the plaintiff was injured in a fall on a slippery substance on the floor of the store. The Delaware Supreme Court ruled summary judgment for the defendant store was inappropriate because there was a question of whether the store should have had knowledge of the slippery substance as well as a question of whether the plaintiff was contributorily negligent. In Howard, there was but one defendant who clearly had a duty to see that the store premises were kept in a reasonably safe condition. In the present case, there are multiple defendants, none of whom can be shown to have had a duty to O'Donnell. The court finds the facts of the present case are, therefore, not analogous, and that the reasoning of the court in Wilson and Wilhelm is more appropriately applied to the facts of the present case.
201 A.2d 638 (Del. 1964).
Summary judgment for the situational defendants is, therefore, appropriate. The court GRANTS Battaglia's, Conti's, Sylvan's, AND FATA's Motions for Summary Judgment.
V. CONCLUSION
For the above reasons, the court concludes Plaintiffs have failed to provide evidence that any of the Defendants filing motions for summary judgment owed any duty to O'Donnell. Therefore, Summary Judgment is GRANTED in favor of Defendants General Motors Corporation, Morrison Knudsen, Battaglia Mechanical, Inc., J.S. Alberici Construction Co., Inc., Conti Electric, Inc., Sylvan Industrial Piping Inc., and FATA Automation, Inc.