Opinion
C.A. No. 03C-03-026-RFS.
Submitted: May 26, 2005.
August 19, 2005.
Colin M. Shalk, Esquire, Casarino, Christman, Shalk, P.A., Wilmington, DE.
William D. Fletcher, Jr., Esquire, Schmittinger Rodriguez, Dover, DE.
Mary Sherlock, Esquire, Brown, Shiels, Beauregard, Chasanov, Dover, DE.
Dear Counsel:
Pending before this Court are summary judgment motions filed by Defendants Country Life Homes, Inc., ("Country Life Homes") and Quality Mechanical, Inc., ("Quality Mechanical"). For the foregoing reasons, both defendant's Motions for Summary Judgment are granted.
BACKGROUND
The plaintiff, James R.J. Pettit ("Pettit"), was an employee of Wilson Builders ("Wilson"). Wilson, a siding subcontractor, had a contract with defendant Country Life Homes to perform work on a residential townhouse construction project named Plantations East in Sussex County. Co-defendant Quality Mechanical was the electrical subcontractor for the project.
On the construction site, Country Life Homes provided a temporary power source for its subcontractors use. It was installed by Delaware Electrical Cooperative. By law, the temporary power source, or junction box, must be set up by a licensed electrician and inspected by a state inspector. Only the electrician and the power company know a junction box's electrical capacity.
On April 6, 2001, Pettit was working on the job site, cutting pieces of cedar siding with a miter saw. Pettit was familiar with this saw as he had used it on prior occasions. In order for the saw to operate, the trigger on the saw must be continuously depressed. If the trigger is released, power to the saw is simultaneously cut-off. The saw Pettit was using was plugged into and powered by the junction box that had been placed by Delaware Electrical Cooperative.
Michael Cooper, an employee of defendant Quality Mechanical, plugged an extension cord into an empty outlet on the junction box while Pettit was operating his saw. Pettit's saw immediately lost power. Pettit yelled to Cooper that his saw shut off, and Cooper hit the reset buttons on the junction box. During this time, Pettit was continuously depressing the trigger on the saw. Power was briefly restored to the saw before the electrical circuit was tripped again. After the saw came on and shut off for the third and final time, Pettit released the trigger and began walking away from the table. Pettit testified that at that moment, the saw activated itself and cut off his right thumb. According to Pettit, he was not depressing the trigger when the saw sliced off his right thumb.
STANDARD OF REVIEW
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the nonexistence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party meets its burden, the burden shifts to the nonmoving party to establish the existence of material issues of fact. Id. at 681. The Court views the evidence in a light most favorable to the nonmoving party. Id. at 680.
Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion, the burden shifts and the nonmoving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp., 477 U.S. 317, 322-23 (1986). Generally, actions based on negligence are not a proper subject for summary judgment. The moving party must show the absence of all material issues of fact relating to negligence. Ebersole v. Lowengrub, 180 A.2d 467, 469 (Del. 1962). If material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is not appropriate. Ebersole, 180 A.2d at 470.
DISCUSSION
I. Proximate CauseThe determinative issue in this case focuses on whether the defendants' actions proximately caused Pettit's injuries. The issue of proximate cause is normally a jury question. Mazda Motor Corp. v. Lindahl, 706 A.2d 526, 533 (Del.Super.Ct. 1998). A plaintiff may establish that a defendant's conduct proximately caused injuries based upon an inference from competent evidence, yet such a finding must relate to a matter which is within a lay person's scope of knowledge. Money v. Manville Corp. Asbestos Disease Compensation Trust Fund, 596 A.2d 1372, 1375 (Del. 1991). If the subject in issue is one within the knowledge of experts only, and not within the common knowledge of laymen, it is necessary for the Plaintiff to introduce expert testimony in order to establish a prima facie case. Id. Because of their scientific, technical or other specialized knowledge, expert witnesses will sometimes be necessary to assist the trier of fact in understanding evidence or in determining a fact at issue. Eskin v. Carden, 842 A.2d 1222, 1227 (Del. 2004). Where determination of proximate cause requires an understanding beyond the ken of the jury, the absence of expert testimony is fatal. Mazda Motor Corp., 706 A.2d at 533.
Pettit opposes defendants' motions for summary judgment on the grounds that genuine issues of material facts exist. Pettit contends that an expert is not needed to determine the safe use of electrical cords and outlets, the proper usage of a junction box, the negligent use of a power source, or that the saw was defective. Except to say that the dangerous propensities of electricity are well known and within the ken of the ordinary jury, this Court need not address whether an expert is required to determine the safe use of electricity, the negligent use of an electrical source, or the proper usage of a junction box. Pettit's contentions in the complaint and sworn deposition testimony about the saw regaining power without the trigger being depressed are fatal to his argument. While at the hospital, Pettit reflected on the accident and wrote a brief account of the events leading up to the loss of his thumb. In the note, Pettit stated, "After the second time the power went out I released the switch and start to turn to the left to go see what the problem was myself. As I was turning to walk around the cutting table the saw came back on." Likewise, Pettit stated in his complaint in paragraph 9 that he "switched his saw "off" and turned to investigate the second power stoppage, tuning (sic) to walk around a table saw, the saw started up and the blade pulled his shirt sleeve into the table saw blade, cutting off his right thumb." Nowhere does Pettit indicate to this Court how he is going to prove the table saw in question was defective and restarted without the trigger being depressed.
Pettit maintained the position that the saw was defective throughout the pre-trial proceedings, and up until the beginning of oral arguments on summary judgment. Belatedly, Pettit's attorney attempted a change of position that the saw was not defective. In fact, Pettit's attorney suggested that the only possible inference from the facts implies that the saw was not defective and Pettit must have been holding down the trigger when his thumb was severed.
However, this complaint was signed by the attorney representing Pettit in compliance with Superior Court Rule 11, and it is binding on Pettit. Pettit repeatedly emphasized to this Court that he did not hold the trigger on the saw when it turned on and cut his thumb. In a motion for summary judgment, it is the court's responsibility to rule on the actual and not a hypothetical record. Rochester v. Katalan, 320 A.2d 704 (Del. 1974). What Pettit now proposes is for this Court to ignore the record that has been created largely by him and make inferences based upon counsel's suggestions to avoid an adverse decision. There is no other eyewitness testimony than Pettit's account of the incident. At this late stage of the proceeding, Pettit must accept and cannot now repudiate his allegations and sworn deposition testimony that the saw restarted at a time when he did not hold the trigger.
The Court notes that the attorney currently representing Pettit is not the same attorney that filed the original complaint.
Even assuming for purposes of argument only that Pettit somehow met his burden on the present record, Pettit nonetheless has failed to provide expert testimony regarding the saw. In the case at hand, Pettit's complaint charges that the saw restarted without the trigger being depressed and defendants' actions proximately caused his injuries. Pettit must show a connection or legal cause between defendants' actions and his injuries. Proximate cause has long been defined in Delaware as:
"That direct cause without which [an] accident would not have occurred." In other words, a proximate cause is one "which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred." Duphily v. Delaware Electric Cooperative, Inc., 662 A.2d 821, 829 (Del. 1995).
It is Pettit's contention that the saw reactivated itself during a period of time when the trigger was not depressed. Pettit must prove that defendants' actions were a cause of his injuries and, but for defendants negligence, Pettit's thumb would not have been severed. There is no evidence in the record that indicates the defendants' behavior proximately caused Pettit's injuries. How a saw reactivates itself without the trigger being depressed is outside the scope and common knowledge of the average juror. During Pettit's deposition, he was asked "Do you have an explanation of why that blade could move with your hand not on that lever?", and Pettit replied "No, ma'am." Mr. Wilson also testified that he has no idea how the saw reactivated itself. Mr. Wilson was asked, "Have you ever had that experience with the machine? That is, when you don't have your hand on the handle, there is actually a burst of power into the machine?" and he similarly replied "No." There is currently nothing in the record that would properly explain how a saw could become re-engaged without the trigger being depressed. An expert is needed to provide a jury with the technical, scientific, or mechanical information necessary to explain this occurrence. Defendants have successfully shifted the burden of proof to Pettit.
James R.J. Pettit Dep. at 42.
John B. Wilson Dep. at 114.
Consequently, Pettit must demonstrate to this Court that genuine issues of material fact exist. In order to do so, Pettit must introduce expert testimony to demonstrate not only that Quality Mechanical owed him a duty and breached that duty, but that the alleged breach was the proximate cause of the injury. The trial schedule deadline of June 1, 2004, to retain an expert witness passed without Pettit retaining one. The failure to retain an expert is fatal to Pettit's case because there is no way for this Court to determine whether defendants' actions proximately caused Pettit's injuries, without the testimony of an expert. After a review the record and the evidence in a light most favorable to Pettit, general issues of material fact do not exist. There is no evidence that defendants' actions proximately caused Pettit's injuries. Defendants' Motions for Summary Judgment are GRANTED.
CONCLUSION
Considering the foregoing, Defendant Quality Mechanical's and Defendant Country Life Homes' Motions for Summary Judgment are GRANTED.