Opinion
C.A. No. 98C-08-247 RRC
Submitted: February 26, 2002
Decided: March 22, 2002
On Defendant Century Engineering, Inc.'s Motion for Summary Judgment. GRANTED.
Joseph J. Rhoades, Esquire, and W. Christopher Componovo, Esquire, Attorneys for Plaintiffs.
Stephen P. Casarino, Esquire, Attorney for Defendant Century Engineering.
ORDER
This 22nd day of March, 2002, upon consideration of the submissions of the parties, it appears to this Court that:
1. Currently before the Court is a motion for summary judgment filed by Defendant Century Engineering, Inc. ("Century" or "Century Engineering") directed towards plaintiffs Anne Rafferty (individually and as administratrix of Joseph A. Rafferty, Sr.'s estate), Joseph A. Rafferty, Jr., James J. Rafferty, and Brigid M. Rafferty (collectively "Plaintiffs"). The parties agree that there are no material facts in dispute and that Century is potentially liable only if it owed a legal duty to have ensured the workplace safety of employees of the Hartman Walsh Painting Company ("Hartman Walsh"), who was the employer of Joseph A. Rafferty, Sr., at the time of his death in an employment-related accident. For the reasons below, Century's motion is GRANTED.
There were originally numerous other defendants named, all of who (excepting KTA/SET Environmental) have been dismissed from the case. KTA/SET Environmental had been engaged by Hartman Walsh to perform "periodic ambient air monitoring, worker exposure monitoring, and site safety checklists." Dep. of Daniel P. Adley at 10.
2. This is a wrongful death case stemming from an accident that occurred on August 30, 1996, while Joseph A. Rafferty, Sr. ("Decedent") was working for Hartman Walsh. Hartman Walsh had contracted with the State of Delaware, specifically the Delaware Department of Transportation ("DelDOT"), to perform the environmentally sensitive painting of the bridge on Interstate I-95 that crosses the Brandywine River in the City of Wilmington (the "Brandywine Bridge Project"). Century Engineering was employed to ensure that the Brandywine Bridge Project was generally performed according to plan. On August 30, 1996, while in the employ of Hartman Walsh, Decedent fell approximately 72 feet to his death. Plaintiffs assert that "Century had a contractual obligation with the State to insure that Hartman Walsh complied with the State's safe work practice provisions as set forth in the [DelDOT-Century Engineering Contract]."
Pls.' Resp. ¶ 4.
The issue before the Court is whether, under the particular facts of this case, Century had a duty to ensure the safety of Hartman Walsh employees such as Decedent. To accomplish this, the Court must determine what degree of "control" (if any) that Century exhibited over Hartman Walsh's performance of its work; the Court must consider the contracts that the parties made and whether Century voluntarily assumed a duty to ensure the safety of Hartman Walsh employees through an examination of relevant testimony.
3. There are several writings relevant to the issue at hand: a contract titled "Open End Full Service Engineering/Architectural Contract for Delaware Turnpike Administration between the Delaware Department of Transportation and Century Engineering, Inc." (the "DelDOT-Century Engineering Contract"); the "State of Delaware Standard Specifications July 85" (the "Standard Specifications"); and a contract between DelDOT and Hartman Walsh (the "DelDOT-Hartman Walsh Contract"). The relevant provisions of each of these writings will be addressed seriatim.
Regarding Century Engineering's responsibilities for the Brandywine Bridge Project, the DelDOT-Century Engineering Contract provides that:
[Century] shall provide a field organization with competent personnel to perform construction surveys, and inspection of materials and workmanship to assure that the construction complies with the plans and specifications. [Century] shall assign to the field a Resident Engineer to be in charge, and inspectors, survey parties, laboratory technicians, and office employees of adequate numbers and qualifications to control the work in a manner commensurate with sound engineering and construction practice. The quality and extent of the field control of the construction by [Century] shall be subject to the approval of the Turnpike Engineer.
The DelDOT-Century Engineering Contract also provides that:
[Hartman Walsh] shall be responsible for the safety of the general public, the work force and equipment, and the work site. It is not intended that [DelDOT] or [Century Engineering] assume [Hartman Walsh's] sole and absolute responsibility for the safety of the general public, the work force and equipment, and the work site.
Additionally, the Standard Specifications (which the DelDOT-Century Engineering Contract incorporates) provide, in pertinent part, as follows:
[DelDOT] or [Century Engineering] or their authorized agents shall incur no personal liability as a result of carrying out any of the provisions of the [DelDOT-Century Engineering Contract], as the result of exercising any power or authority granted to them thereby, or as the result of any act by [Hartman Walsh]. In such matters they act as the agents and representatives of the State.
The Standard Specifications also describe Century's authority:
[Century] is the Administrator of the contract and not a Supervisor of the work. All work shall be performed to the satisfaction of [Century], but in no case shall [Hartman Walsh] be relieved of complete responsibility [Century] shall decide all questions which may arise as to the quality and acceptability of materials furnished and work performed and as to the manner of performance and rate of progress of the work. . . .
[Century] has the authority to suspend the work, wholly or in part, due to the failure of the contractor to correct conditions unsafe for the general public; for failure to carry out provisions of the contract; . . . and for conditions considered unsuitable for the prosecution of the work or for any other condition or reason deemed to be in the public interest. [Hartman Walsh] shall be responsible for all safety on the project, except that [Century] shall be responsible for any safety precautions which [it] may specifically require in writing which are inconsistent with acceptable engineering practice.
[Century's] authority to impose any contract sanction, including suspension of the work, withholding payments, or the like, shall not relieve [Hartman Walsh] of sole and absolute responsibility for the project, performance of the work and the safety of workmen and the general public. . . .
The Standard Specifications also provide the authority vested in any inspector that Century employed in the performance of its contract:
Inspectors, acting under the authority of [Century Engineering], are administrators of the contract and not supervisors of the work. . . . Such inspection may extend to all or any part of the work. . . .[The inspector] shall call the attention of [Hartman Walsh] to any failure of the work . . . to conform to the plans or the specifications and the contract. [The inspector] shall have the authority to . . . suspend the work until any questions at issue can be referred to and decided by [Century Engineering]. Such inspection will not relieve [Hartman Walsh] from [its] obligation to perform the work in accordance with the requirements of the plans, specifications and contract.
The inspector shall in no case act as foreman or perform other duties for [Hartman Walsh], nor interfere with the management of the work by [Hartman Walsh]. Any advice which the inspector may give [Hartman Walsh] shall in no way be construed as binding [Century Engineering] in any way or releasing [Hartman Walsh] from fulfilling all of the terms of the contract.
. . . .
The DelDOT-Hartman Walsh Contract provides, in pertinent part, that:
[Hartman Walsh] shall and will provide and furnish all the material, machinery, implements, appliances, and tools, and perform the work and labor required to perform partial cleaning and painting of the existing steel structure. . . .
Additionally, "Supplemental Specifications/Special Provisions" (which are part of the DelDOT-Hartman Walsh Contract) provide as follows:
In the performance of the contract [Hartman Walsh] shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation. . . . . [Hartman Walsh] shall provide all safeguards, safety devices, and protective equipment and take any other needed actions as it determines . . . to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.
4. In addition to the language of the contracts themselves, the Court has considered the deposition testimony of various persons performing under those contracts.
William Thatcher, Manager of Expressway Operations for DelDOT at the time of Decedent's death, testified as follows:
A. Century Engineering was basically to do the inspection of the project as per the plans and specifications of the contract.
. . . .
Q. "Inspection" is a broad term. Can you be more specific with respect to what you thought Century Engineering was going to do as it related to inspection?
A. Basically, the contract would be put out to . . . the painting contractor to remove lead paint from the bridge, to capsulate the lead paint or basically take it [sic] environmentally safe and then take it away, whatever the contract may have read. To do bearing repairs and to do primer and to paint the bridge. And it was [Century's] job to basically make sure that [Hartman Walsh] [was] doing what the contract called for, to remove the paint properly and to repaint the bridge.
Thatcher Dep. at 12-13. (Ex. B to Def.'s Mot.)
Thatcher also testified to workplace safety on the Brandywine Bridge Project:
Q. Do you know what [the DelDOT-Century Contract] says with regard to safety of [Hartman Walsh's] employees?
A. I believe it clearly says that [Hartman Walsh] is responsible for the safety of [its] employees during the working of the contract.
Q. And not Century?
A. That's correct.
Q. And that is spelled out in the contract itself?
A. That's correct. It is in the [S]tandard [S]pecifications for state construction.
Id. at 36.
Thatcher's testimony is in accord with testimony given by William Kostecki, Hartman Walsh's on-site foreman:
Q. What is your understanding of the role that Century played on this job?
A. Century was mainly concerned with the paint application and the type of coating [Hartman Walsh] was putting on. [Century] [was] making sure that [Hartman Walsh] did the proper abatement and the environmental issues, [made] sure [Hartman Walsh] [wasn't] polluting the area around [the Brandywine Bridge Project]. That was pretty much what they were concerned with.
Q. Did Century get involved in the manner in which [Hartman Walsh employees] did their work?
A. Only if they saw something that would, you know, harm the environment.
Q. Okay. Like would Century, for instance, get involved in the lanyard system that [Hartman Walsh employees] used?
A. No. They had nothing to do with our safety lanyards, no.
Kostecki Dep. at 89. (Ex. E to Def.'s Mot.)
Additionally, Joseph Pfeiffer (the Resident Engineer that Century employed on the Brandywine Bridge Project as required by the DelDOT-Century Engineering Contract) testified to general workplace safety:
Q. Prior to the Brandywine River Project, were you familiar with the fact that at times to accomplish the task of painting the underside of the bridge painting[,] contractors would have to resort to the use of scaffolding?
A. Yes.
Q. And which [the contractors] would provide; is that correct?
A. Exactly.
Q. Were you also familiar with the fact that, when scaffolding was being used or perhaps even when [lifts such as the one Decedent fell from] were being used, that fall protection was necessary to be employed by the individuals that were working there?
A. That really was not my concern, sir. I was not involved with the safety of these workers.
Q. I'm not asking you whether it was your concern. . . . . But my question was: [w]ere you aware that fall protection was something that needed to be employed during the course of these jobs?
A. I knew the contractor had to provide safety wherever. . . [the] prescribed plan . . . [dictated that the individual contractor] had to provide [safety measures] for his men, yes.
Pfeiffer Dep. at 57-58. (Ex. C to Def.'s Mot.)
Mr. Pfeiffer also testified as to the day-to-day operations of Century vis-à-vis Hartman Walsh's performance of its contract:
Q. Was [William Keene, Century's on-site construction inspector] required as part of his job to keep regular written record of everything that [Hartman Walsh] did on a daily basis?
A. Any day, depending on the job . . . he's required to turn in an inspector daily report [IDR] every day, even for Saturday and Sunday. You write in there no work. On a workday contract he has to turn it in for every day they work. He might have to turn it in for a day they didn't work and indicate a no charge day and give a reason.
Legally, you can go revert back to it should there be a problem with liquidated damages. He makes out an IDR analysis of the operations that took place.
Pfeiffer Dep. at 106-107. (Pls.' App. at 34-35)
William B. Keene, Jr., was Century's on-site construction inspector, as required by the Standard Specifications; he testified as follows:
Q. In preparation for [the Brandywine Bridge Project], did you learn in any way anything about fall protection issues?
A. No.
Q. Did you read the fall protection plan of [Hartman Walsh] after [they were] awarded the job?
A. No.
Q. Were you given it?
A. I believe I was given it.
. . . .
Q. Okay. Well, I guess my question is, you said to me earlier on in the deposition, and I'll be paraphrasing, but I think you said that your job was to inspect the project to make sure that there was compliance by [Hartman Walsh] with the contract specifications?
A. Correct.
Q. Okay . . . was the provision of . . . adequate fall protection by [Hartman Walsh] part of the contract specifications?
A. It was — yes.
Q. Okay. And . . . you never read those fall protection provisions to determine whether or not [Hartman Walsh] was, in fact, complying with them. Is that correct?
A. That is correct.
Keene Dep. at 19-20. (Pls.' App. at 95-96)
Joseph E. Cronin served as Century's construction inspector when Mr. Keene was not present at the Brandywine Bridge Project; he testified as follows:
Q. Now, you said earlier that you are provided with — and, again, if I'm mischaracterizing what you said, you can certainly correct me — you said that you were provided with safety programs of the contractors. And you said that the purpose of that was so if you happened to see something that was contrary to the safety program, you could point it out —
A. Correct?
Q. — is that correct?
A. That's correct.
Q. Is that customary, that you would be provided with the safety programs, as either a construction inspector or resident inspector, so you could familiarize yourself with them?
A. That is correct. Normally we get a program of the whole safety. And I look at the environmental issues of how are they going to contain the waste, how are they going to contain their wastewater, what's their requirements for making sure that their men wash their hands before they go out of the containment. Everything to protect the environment.
Q. Are you given any other information or any other safety programs besides the environmental safety programs?
A. No. This is environmental compliance. This is — what part of my job entails is I make sure there are no emission or that grit is totally, 100% contained and encapsulated and recycled. . . .
Q. Are you given fall protection programs to make reference to if need be?
A. No.
Q. And when you say "no," are you saying no, you're not presently doing that, or as a resident inspector, you've never done that?
A. I've never received a fall protection or worker safety program. For painting I receive an environmental compliance program, the safety program, how they're going to take care and comply with environmental stipulations in the contract.
Cronin Dep. at 18-19. (Pls.' App. at 190-191)
Regarding "safety" issues outside of the environmental concerns associated with the Brandywine Bridge Project, Mr. Cronin testified:
Q. Is there any requirement . . . that there's an independent safety consultant that needs to be hired to check out the job to make sure that it's done safely?
A. Usually a plan is submitted, a safety plan is submitted . . . and it is approved by the Department of Transportation. And I'm just am [sic] given a copy of it. I do not — it's not my responsibility for the company's safety. I just have a copy of what their safety plan is. So if I see something by chance, I, you know, would be aware that it's a violation. But we — most of the safety plans contain environmental, how they try to comply environmentally with the specifications . . . such as with the containment and their handling of the wastewater and the handling of the grit.
Cronin Dep. at 11. (Pls.' App. at 188).
5. In its motion, Century Engineering argues that the "sole" responsibility for the safety of Hartman Walsh's employees rested with Hartman Walsh itself. Century points to the language of the DelDOT-Century Engineering Contract that states that Hartman Walsh had absolute responsibility for worksite safety. Thus, Century argues that it had no duty to Hartman Walsh employees.
In response, Plaintiffs argue that the State of Delaware and Century Engineering had a "long standing agency relationship," and that "in agreeing to serve as the agent of the State to assure that the construction work complied with the plans and specifications, Century undertook to determine that all of the specifications were complied with. . . ."; Plaintiffs argue that Century had a "contractual obligation" to ensure that Hartman Walsh complied with the State's "safe work practice provisions" included in the DelDOT-Hartman Walsh contract. Beyond the contracts, Plaintiffs argue that "a review . . . [of] the records provided and the testimony given, leads to the inescapable conclusion that Century [owed Decedent and Hartman Walsh a duty,] and that its failure to [ensure that the project was proceeding in a safe manner] was the cause of [Decedent's] death." Plaintiffs argue that Century maintained a "level of control" sufficient to create that duty necessary for Century to ensure workplace safety.
6. Summary judgment is granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The Court must view the facts in a light most favorable to the non-moving party. Where the parties agree that there are no material facts in dispute (as the parties have done here), the issue the Court must decide when faced with an injury to an independent contractor's employee is whether the landowner or general contractor owed that employee any duty. Where no duty exists, then summary judgment in favor of the landowner or general contractor against the injured independent contractor's employee is appropriate.
Super.Ct.Civ.R. 56(c); Burkhart v. Davies, 602 A.2d 56 (Del. 1991).
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992).
Century was hired to "be responsible for engineering/architectural and construction inspection services. . . ." DelDOT-Century Engineering Contract Section I. (Ex. A to Def.'s Mot.) While Century is thus neither a landowner nor a general contractor per se, the legal analysis of the liability that Century may face is substantially the same as that of a landowner or general contractor; the Court will conduct its analysis accordingly.
See, e.g., Seeney v. Dover Country Club Apartments, Inc., 318 A.2d 619, 623 (Del.Super. 1974) (stating that where defendant moved for summary judgment on ground that there was no material fact in dispute (and plaintiff agreed) but defendant was not liable as a matter of law, defendant's liability was contingent upon existence of some breach of a duty to plaintiff).
Id.
7. Generally, an owner or general contractor does not have a duty to protect the employees of an independent contractor from the hazards of completing the contract. An owner or general contractor has a duty to protect an independent contractor's employees when the owner or contractor "retains active control over the manner in which the work is carried out and the methods used." As this Court has previously held, "[w]hile the concept of active control is an elastic one, it is not inferred from mere retention by the owner or contractor of the right to inspect or to supervise the work for conformity with the contract." The right to control "must go directly to the manner or methods used by the independent contractor in [the independent contractor's] performance of the delegated tasks."
O'Connor v. Diamond State Tel. Co., 503 A.2d 661, 663 (Del.Super. 1985) (holding that neither telephone company that owned poles nor contractor that had license to hang lines on poles owed duty to independent contractor's employee who was injured while attaching a line to such a telephone pole).
Id. at 663.
Seeney, 318 A.2d at 621.
Id.
However, a duty to ensure workplace safety can be imposed upon a party who "by agreement or otherwise, undertakes responsibility for implementing the required safety measures." Where a breach of this duty causes injury to a worker, the responsible party can be held liable under traditional principles of negligence law. A party does not necessarily assume responsibility for implementing workplace safety measures by reporting to an independent contractor observed safety violations, particularly where the independent contractor is contractually required to maintain workplace safety.
Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1092 (Del.Super. 1994) (finding in part that subcontractor's contractual agreement to abide by OSHA regulations did not impose additional responsibility or liability with regard to the employee of another subcontractor, as the parties could have agreed to that if that had been their intent).
Bryant v. Delmarva Power Light Co. et al., Del. Super., C.A. No. 89C-08-070, Babiarz, J. (Oct. 2, 1995) (Mem. Op) (holding in part that owner of land/general contractor could not be held liable to plaintiff in negligence because of a lack of duty where the owner/general contractor had neither exercised active control over plaintiff nor voluntarily assumed responsibility for plaintiff's safety).
Id. at 27.
Id. at 19.
Here, Plaintiffs argue that Century Engineering maintained the degree of "control" necessary to hold Century potentially liable for Decedents death. Plaintiffs point to examples such as Century's ability to halt Hartman Walsh's performance of its contract; to Century's acknowledgement that Hartman Walsh was required to employ a safety program in the performance of its contract; to Century's apparent ability to dictate how Hartman Walsh could control traffic flow on top of the bridge; and to Century's "day-to-day operations" in the performance of both its own contract and in Century's administration of the DelDOT-Hartman Walsh Contract.
The Court initially notes that the DelDOT-Century Engineering Contract and the attendant Standard Specifications provide that Hartman Walsh was responsible not only for its own worker's safety, but also the safety of the worksite, of the equipment Hartman Walsh utilized, and of the general public. The Court also notes that the DelDOT-Hartman Walsh Contract and the attendant Supplemental Specifications make it clear that Hartman Walsh's contract required caution to be exercised in its performance (Hartman Walsh "shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation"). Also, both the DelDOT-Century Engineering Contract and the Standard Specifications provide that that Hartman Walsh's safety responsibility was "sole and absolute." While it is true that Century had an ability to "shut down" Hartman Walsh's performance, the Standard Specifications indicate that any such ability was for the benefit of the "general public," and that any such performance suspension would not have otherwise relieved Hartman Walsh of its sole liability insofar as Century was concerned; the same can be said of any ability to regulate traffic flow that Hartman Walsh may have possessed. Considering that Century was to ensure that Hartman Walsh performed its contract in an environmentally safe manner, it is apparent that any ability Century retained was more akin to ensuring contract compliance than "controlling" the manner and methods by which Hartman Walsh fulfilled its contractual duties (such as employment of safety measures). Those cases in which Delaware courts have found liability based on "control" have involved more extensive "supervision" than that exercised by Century Engineering here.
See, e.g., Rabar v. DuPont de Nemours Co., 415 A.2d 499 (Del.Super. 1980) implied overruling on other grounds recognized by Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1092 (Del.Super. 1994) (finding that defendant had retained sufficient control of the work area where defendant dictated the number of workers to be used by the subcontractor and supplied all construction materials, tools, equipment, and facilities); Cook v. E.I. duPont de Nemours and Co., Del. Super., C.A. No. 99C-01-023, Ableman, J. (Aug. 20, 2001) (Mem. Op.) (holding in part that a sufficient degree of control warranting landowner being held liable for plaintiff's injuries existed where the landowner provided tools to plaintiff, the landowner directed and restricted the movements of contract employees, and the landowner inspected contractor's on-site offices and vehicles).
Plaintiffs also point to the fact that Century was aware that Hartman Walsh needed to have a safety plan in place in order to secure its contract with DelDOT. However, it is of no great import that Century was aware of this fact, considering that the evidence indicates that Century was primarily responsible for the environmental aspects of the DelDOT-Hartman Walsh Contract. As Mr. Cronin testified, it was not Century's obligation to be responsible for Hartman Walsh's safety — Century had a copy of Hartman Walsh's safety plan essentially so that Century "would be aware [of any safety] violation," i.e., so Century could monitor Hartman Walsh's compliance with Hartman Walsh's own contract — and Hartman Walsh's contract itself stated that Hartman Walsh would protect the life and health of its employees on the job as well as the safety of the public.
The Court finds analogous support for this holding in Bryant v. Delmarva Power Light Co. et al. In Bryant, the defendants (certain utility providers who had contracted for reconstruction of a utility tower located in the Delaware River, and the engineer the utility providers employed to ensure the independent contractor there was complying with the reconstruction contract) "pointed out and required correction of OSHA violations by contractors, addressed safety at project meetings, and allegedly retained the right to shut down the project if it was unsafe," and in the case of the engineer, "report[ed] any unsafe practices [on the part of the independent contractor] . . . to [the utility defendants]." However, the Court found that both the utility defendants' field representatives and the engineer employed by them were engaged in a supervisory capacity not rising to the level of assumption of responsibility for workplace safety; the parties were on-site merely to "advise" of any observed safety violations. The Bryant court found that "[a] property owner does not voluntarily assume responsibility for workplace safety by advising [its] independent contractor of observed safety violations where the independent contractor is contractually required to maintain workplace safety," and that "one does not assume legal responsibility for implementing safety measures by merely reporting observed accidents and unsafe practices."
Del. Super., C.A. No. 89C-08-070, Babiarz, J. (Oct. 2, 1995) (Mem. Op.).
Bryant at 18.
Id. at 26.
Id. at 19.
Id. at 27.
Plaintiffs rely on Bryant for the proposition that "Century can . . . be found to have owed plaintiff a duty under the theory that it retained possessory control over the work premises during the work project." However, having found that Century did not actively retain "control" over Hartman Walsh's performance despite Century's apparent ability to "shut down" the Brandywine Bridge Project and to monitor how Hartman Walsh regulated traffic flow on top of the bridge, the Court declines to find that Century retained possessory control sufficient to act as a predicate for Century's liability.
Pls.' Resp. at 17
8. Plaintiffs cite Cook v. E.I. duPont de Nemours and Co for the proposition that Century sufficiently "interjected itself" into the day-to-day affairs of Hartman Walsh's performance of its contract, particularly with regard to Century's ability to cite Hartman Walsh for safety violations and to issue IDRs, that Century can now be held liable for Decedent's death. However, the facts that the Cook Court relied upon in finding the potential for landowner liability are not present in this case.
Del. Super., C.A. No. 99C-01-023, Ableman, J. (Aug. 20, 2001) (Mem. Op.)
See Cook at 10.
Here, the IDRs were simply an administrative tool that Century used to ensure that Hartman Walsh was complying with its contract; this is borne out by Joseph Pfeiffer's testimony that "you can go revert back to [the IDRs] should there be a problem with liquidated damages." Additionally, the facts that compelled the Court in Cook to rule that the landowner there may face potential liability (the landowner provided tools to plaintiff, the landowner directed and restricted the movements of contract employees, and the landowner inspected contractor's on-site offices and vehicles), are at least in part contractually committed in this case to Hartman Walsh alone (Hartman Walsh "shall and will provide and furnish all the material, machinery, implements, appliances, and tools. . . ."). Therefore, Cook is inapposite.
Pfeiffer Dep. at 106-107. (Pls.' App. at 34-35).
9. Plaintiffs have submitted expert testimony to the effect that Century "had an obligation, according to applicable construction industry standards, to insure a safe work environment for [Decedent] on the day of the incident in question and [Century's] failure to do so constituted a departure from and violation of those standards resulting in [Decedent's] death." However, the existence of a custom, although relevant in establishing an applicable standard of care, does not establish the existence of a legal duty. Having found that Century owed Decedent no duty insofar as workplace safety was concerned, the Court need not consider the expert testimony submitted by Plaintiffs.
Pls.' Resp. at 20.
Bryant at 20 (citing Delmarva Power Light v. Stout, 380 A.2d 1365, 1367 (Del.Supr. 1977)).
10. The existence of a duty will always be a fact-specific inquiry. A general contractor (and those in similar positions), while ensuring other parties' contract compliance, will normally be expected to oversee to some degree the safety precautions those other contractors employ; not every such exercise of oversight will necessarily lead to a finding of control or to a voluntary assumption of responsibility for workplace safety not otherwise required by contract. Summary judgment is appropriate here because, there being no material facts in dispute, and looking at the facts in the light most favorable to Plaintiffs, Century has not exhibited that degree of control over Hartman Walsh's performance so that Century had a duty to ensure Decedent's safety; nor did Century voluntarily assume responsibility for the safety of Hartman Walsh's employees. Accordingly, Century's Motion for Summary Judgment is GRANTED.
See Kilgore v. R.J. Kroener, Inc. and Wallworks, Inc., Del. Super., C.A. No. 00C-08-147, Cooch, J. (March 14, 2002) (Letter Op.) (holding that, under the particular facts of that case, general contractor had no duty to ensure the safety of independent contractor's employees where general contractor neither maintained active control nor voluntarily assumed responsibility for independent contractor's workplace safety and independent contractor owned and erected scaffolding from which plaintiff fell).
IT IS SO ORDERED.