Opinion
C.A. No. 01C-06-100 SCD
May 6, 2002
ORDER
This 6th day of May, in consideration of the defendant's motion for summary judgment, it appears that:
1. The action arises from an accident that occurred on February 15, 2002, on property owned or controlled by Hardcore Composites. The plaintiff claims injuries resulting when pilings rolled off a forklift, striking him. The forklift was owned by Diamond State Terminal and operated by an employee of Diamond State, Robert W. Purcell. Purcell is not a party in this litigation.
2. The defendant argues that the claim is barred because at the time of the incident Purcell was a special or borrowed employee; therefore, the plaintiff's exclusive remedy is workers compensation.
3. There are no issues of fact. That being the case, the claim can be resolved as a matter of law.
Porter v. Pathfinder Services, Inc., Del. Supr., 683 A.2d 40, 42 (1996).
4. The evidence shows that on the morning of the accident, the owner of Diamond State Terminal, Joseph F. Somers, Jr. received a call from someone at Hardcore Composites asking for a little help moving some pilings. There was no consideration requested or received for the service, and this had not happened before. Somers decided to be generous to his neighbor, and sent Purcell and the forklift over to help out for a short time, a half an hour to an hour. During that time period, Purcell was instructed to lift pilings, the pilings shifted, rolled off the forklift and struck the plaintiff.
5. It is clear that Purcell was working at the direction of employees of Hardcore Composites, on work which furthered the interests of that company and were of no benefit to Diamond State Terminal, Co. Those being the undisputed facts, Purcell was a special employee of Hardcore Composites as a matter of law.
Id.
WHEREFORE, the motion for summary judgment is GRANTED.
IT IS SO ORDERED.