Opinion
C.A. No. 04C-03-286 PLA.
Submitted: August 3, 2007.
Decided: September 18, 2007.
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS GRANTED, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS DENIED.
This 18th day of September, 2007, upon consideration of Cross-Motions for Summary Judgment filed by Plaintiff Delmarva Power Light Co. ("Delmarva) and Defendant First South Utility Construction, Inc. ("First South"), it appears to the Court that:
1. First South contracted with P.F. Net to complete bore drilling work along Pennsylvania Avenue in Wilmington, Delaware in preparation for the installation of underground fiber optic cables.
Docket 65, Ex. B.
2. On February 19, 2002, First South subcontracted the installation work to Shaffer Construction Co. ("Shaffer").
Id. Shaffer settled with Delmarva Power Light Co. and is no longer a party to this litigation. See Docket 77.
3.. On March 15, 2002, Shaffer transmitted to Miss Utility a Notice of Intent to excavate. First South also filed a Notice to Excavate with Miss Utility. Shaffer then commenced installation on March 19, 2002.
Id., Ex. C.
Docket 73, Ex. K.
4. Delmarva Power Light Co. ("Delmarva") alleged that on March 27, 2002, Shaffer damaged its underground utility cable located near 1800 Pennsylvania Avenue. Both parties admit that First South subcontracted the work to Shaffer. Moreover, both parties admit that Delmarva sustained utility damage at the time of Shaffer's work.
In First South's response to Delmarva's motion for summary judgment, Delmarva does not deny that a Shaffer employee caused the damage to Delmarva's utility lines. See Docket 71, ¶ 10 (denying only that First South's employee, "Chuck," was present when the accident occurred). This Court assumes, therefore, that the parties agree that Shaffer's boring caused the damage to Delmarva's utility lines.
5. Now before the Court are cross-motions for summary judgment. Delmarva submits that it is entitled to summary judgment because First South is liable to Delmarva for any damages Shaffer caused to Delmarva's property. Specifically, Delmarva argues that First South failed to dig any test holes before Shaffer began digging as required by the Underground Utility Damage Prevention and Safety Act ("the Act").Furthermore, Delmarva submits that First South controlled the work because First South, and not Shaffer, contacted Jay Pearson, a Public Works Inspector for the Delaware Department of Transportation, to report a broken utility duct bank. Delmarva also claims that First South had an employee at the site when the damage occurred. As a result, Delmarva argues that First South is liable as an excavator for its failure to prevent damages to Delmarva's underground lines.
26 Del. C. § 806 states, in pertinent part:
Prior to undertaking any excavation or demolition activities, it shall be the duty of each excavator to . . . [e]xcavate prudently and carefully and to take all reasonable steps necessary to properly protect, support and backfill underground utility lines. This protection shall include but may not be limited to hand digging, within the limits of the planned excavation or demolition, starting two feet of either side of the extremities of the underground utility line for other than parallel type excavations and at reasonable distances along the line of excavation for parallel type excavations[.]Id. § 806(a)(7).
6. Delmarva further argues that First South is vicariously liable for Shaffer's actions because (1) First South had a non-delegable duty under the Act as an excavator to prevent property damage; and (2) First South is liable for the damage caused by Shaffer, even though Shaffer is an independent contractor, under the "peculiar risk doctrine."
7. In response, First South submits that it is entitled to summary judgment because it owed Delmarva no legal duty. Specifically, First South argues, not only did it not engage in any bore drilling, but it delegated the entire job to Shaffer as an independent contractor, and it exercised no control over the manner in which Shaffer drilled. As a result, Shaffer, rather than First South, is an excavator, and Shaffer alone is liable for any violation of the Act.
8. First South also submits that it is not vicariously liable for Shaffer's alleged negligence because it did not owe a non-delegable duty to Delmarva. First South argues that if any duty was owed, Shaffer alone owed it to Delmarva because Shaffer controlled the worksite as the subcontractor. First South further argues that the "peculiar risk doctrine" is inapplicable here because First South was never in privity with Delmarva. Lastly, First South argues that the "peculiar risk doctrine" is applicable only where a third party sustains personal injury as distinguished from property damage.
9. When considering a motion for summary judgment, the Court's function is to examine the record to ascertain whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. The court must "view the evidence in the light most favorable to the non-moving party." When both parties file cross-motions for summary judgment, however, there may still be genuine issues of material fact. The party filing a motion for summary judgment "concedes the absence of a factual issue and the truth of the nonmoving party's allegations only for purposes of its own motion, and does not waive its right to assert that there are disputed facts that preclude summary judgment in favor of the other party." Only where there are no genuine issues of material fact and one party is entitled to judgment as a matter of law will this court grant a party's motion for summary judgment. This Court, therefore, must determine if either party has presented a genuine issue of material fact.
Super Ct. Civ. R. 56(c).
See Super. Ct. Civ. R. 56(c); Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 880 (Del.Super.Ct. 2005).
Mason v. United Services Auto. Ass'n, 697 A.2d 388, 392 (Del. 1997).
Id.
Dunlap v. State Farm Fire and Cas. Co., 2007 WL 2390682, at *7 (Del.Super.Ct. Aug. 3, 2007).
Id.
10. Initially, this Court must determine whether First South is an excavator under the Act. An excavator is "any person, including those acting either as an employer or employee, intending to perform or performing excavation or demolition work." To intend something is "to desire that a consequence will follow from one's conduct." An excavation is "any operation in which earth, rock or other material in the ground is moved, removed or otherwise displaced or disturbed by means of any tools, equipment or explosives and includes . . . boring. . . ."
26 Del. C. § 802(8). First South is a "person" within the meaning of the act. See 26 Del. C. § 802(10) ("`Person' shall mean any individual, firm, joint venture, partnership, corporation, association, municipality, other political subdivision, state or federal governmental unit, department or agency, state cooperative association, joint stock association and shall include any assignee, trustee, receiver or personal representative thereof.") (emphasis added).
See Bryan A. Garner, A Dictionary of Modern Legal Usage 457 (2nd ed. 1995) (defining "intend" to mean "to desire that a consequence will follow from one's conduct").
Id. § 802(7).
11. In this case, there is no material dispute that Shaffer conducted the drilling that resulted in damage to Delmarva's property. First South filed a notice to excavate and hired an independent contractor to perform the work pursuant to a subcontract agreement with Shaffer. That First South subcontracted the work is immaterial; by agreeing to complete the boring work, First South intended to excavate within the meaning of the Act. Moreover, while there is a factual dispute as to whether a First South employee was present when Shaffer struck the underground utility lines, that issue has no effect upon whether First South qualifies as an excavator under the act. In the final analysis, the Court finds that First South is an excavator.
See Docket 65, ¶ 2 ("First South contracted with P.F. Net to complete the bore drilling work in order to install underground fiber optic cables. . . .").
Delmarva argues that First South foreman "Chuck" met with Jay Pearson, a Delaware Public Works Inspector, as evidence that First South was an excavator under the act. Docket 73, ¶ 5. Delmarva also argues that Pearson met with Lonny, a First South employee, who controlled the boring crew. Id. In response, First South argues that Delmarva has admitted that no witnesses will testify to seeing any First South employee performing any boring work. Docket 65, Ex. G. The Court, however, finds that the presence or absence of a First South employee is not dispositive of the determination of whether First South is an excavator under the Act because First South admits that it contracted with P.F. Net, subcontracted with Shaffer to install fiber optic lines, and filed a Notice of Excavation.
12. The Court next turns to a determination of whether First South, as an excavator, failed to discharge its duties under the Act so as to be liable to Delmarva. Under the Act, an excavator must adopt certain procedures before beginning any excavation to determine whether underground utilities exist in the ground so as to avoid any harm to property, persons, or existing utility services. One procedure in which an excavator must engage is "hand digging, within the limits of the planned excavation or demolition, starting two feet of either side of the extremities of the underground utility line for other than parallel type excavations and at reasonable distances along the line of excavation for parallel type excavations[.]"
Id. § 806(a)(7).
13. The parties agree that neither First South nor Shaffer engaged in hand digging. As an excavator, First South had a statutory duty to take certain precautions, including hand digging, to avoid damage to underground utility lines. While Shaffer could have discharged this duty on behalf of First South, Shaffer failed to do so. Because Shaffer and First South each concede that they did not engage in the statutorily-required hand digging, and First South employed Shaffer as its subcontractor, the Court finds that First South failed to discharge its duties as an excavator. First South is therefore liable to Delmarva for any damage caused as a direct result of its failure to take adequate precautions.
14. The second issue raised in these motions is whether First South is vicariously liable for Shaffer's alleged negligence. "At common law the general rule is that an employer of an independent contractor is not liable for injuries caused by the independent contractor's negligence in the performance of his work." There are, however, three broad exceptions where an employer is liable for injuries caused by an independent contractor: (1) where the employer is negligent in "selecting, instructing, or supervising the contractor"; (2) where the employer has non-delegable duties that arise out of a special relation toward the public or particular plaintiff; and (3) where the work for which the employer and independent contractor contracted is "specially, peculiarly, or `inherently' dangerous." Delmarva claims that exceptions two and three apply; namely, that First South is liable because it has a non-delegable duty under the Act toward the public and Delmarva, and First South is liable because the work for which it contracted poses a peculiar risk.
Bowles v. White Oak, Inc., 1988 WL 97901, at *2 (Del.Super.Ct. Sept. 15, 1988) (citing Restatement (Second) of Torts § 409).
Id.
15. Whether First South owes a duty to Delmarva is a question of law. The Act imposes a duty upon an excavator to hand dig in order to prevent damage to existing underground utility lines. The statute is silent as to whether an excavator may delegate that duty to a subcontractor so as to avoid liability for the subcontractor's failure to hand dig. In deciding this question, the Court may only engage in the process of statutory interpretation where the statute "is ambiguous and its meaning cannot be clearly ascertained." A statute is ambiguous "when it is reasonably susceptible of different conclusions or interpretations" or when an interpretation will lead to an absurd result.
See id. at *8 (citing W. Prosser W. Keeton, The Law of Torts, § 37 (5th ed. 1984)) ("The question of duty is traditionally for the Court.").
Newtowne Vill. Serv. Corp. v. Newtowne Road Dev. Co., Inc., 772 A.2d 172, 175 (Del. 2001).
Id.
16. Section 806 of the Act explicitly states, "[p]rior to undertaking any excavation or demolition activities, it shall be the duty of each excavator" to engage in hand digging. When the legislature uses the verb "shall," generally it indicates a mandatory requirement unless the context of the statute suggests otherwise. In this case, there is no context suggesting that "shall" should be interpreted to be permissive. Because the Act provides separate sections that list the different duties for other parties involved in excavation, it appears that the Legislature specifically created excavator-specific duties rather than general duties that may be fulfilled by any party involved in excavation. Moreover, the Legislature explicitly created the Act to provide guidance to those performing excavation operations to avoid harm to others. Notwithstanding the fact that First South never performed any boring, it nevertheless intended to excavate within the meaning of the Act. Considering that the Legislature's stated purpose in creating the statute is to protect the public from harm, and protect existing underground utility lines, allowing an excavator who subcontracts these duties to be exempt from liability would not further the purposes of the statute and would lead to an undesirable result. Accordingly, the Court finds that First South had a non-delegable duty established by the Act and is vicariously liable for any negligence of Shaffer.
See 26 Del. C. § 806(a) (emphasis added).
Miller v. Spicer, 602 A.2d 65, 67 (Del. 1991).
See, e.g., 26 Del. C. §§ 803-804 (establishing duties for an operator); 26 Del. C. § 805 (establishing duties of a designer); 26 Del. C. § 806 (establishing duties of an excavator); 26 Del. C. § 807 (establishing duties for an approved notification center)
26 Del. C. § 801.
See Cole v. Bd. of Dental Exam'rs, 1999 WL 167728, at *8 (Del.Super.Ct. Feb. 10, 1999) ("It is the duty of the court to consider the particular language of the statute, the subject matter, the purpose for which the statute was enacted and its purpose, the relation of that provision to the general object intended to be secured by the act and the consequences of contrary construction."); see also Restatement (Second) of Torts § 413, cmt e. (1965) ("The fact that the contract under which the work is done provides that the contractor shall take the necessary special precautions does not necessarily relieve the employer from liability, since he may be liable under the rule stated in § 416."). Section 416 states,
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.Id. § 416.
17. The foregoing view is supported by National Fire Insurance Co. v. Westgate Construction Co. In that case, the Delaware District Court, applying Delaware law, held that a general contractor, hired by the plaintiff to install a fireplace in his home, was liable for property damage resulting from a subcontractor's faulty installation. The court explained:
227 F. Supp. 835 (D. Del. 1964).
Nat'l Fire Ins. Co., 227 F. Supp. at 837.
[I]nherent in any contract on the part of a general contractor to erect or repair a building is the obligation to do the work in a careful and workmanlike manner, . . . and it would be indefensible to permit the general contractor to shrug off his contractual duties in this regard by arguing that the negligence was not his but that of an independent subcontractor employed by him."
Nat'l Fire Ins. Co., 227 F. Supp. at 837.
The Court further noted that the plaintiff could have maintained an action in tort, using the contract as the source of the duty:
Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience and faithfulness the thing to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of contract. . . . The contract creates the relation out of which grows the duty to use care.
Id. at 838.
18. While Delmarva and First South were not in contractual privity, as were the parties in National Fire Insurance Co., the Court is nonetheless persuaded that the Act "creates the relation out of which grows the duty to use care" and imposes upon First South the duty to ensure that proper precautions, including hand digging, were taken before beginning the excavation. Where the independent contractor breaches that duty, the general contractor is liable in tort. First South, like the general contractor in National Fire Insurance Co., may not "shrug off" its statutory duties by arguing that any negligence was that of Shaffer rather than its own. As a result, the Court finds that First South breached its non-delegable duty to Delmarva and is vicariously liable for damages to Delmarva.
This Court stresses that it does not mean to suggest that an excavator itself must conduct the hand digging. Excavators are permitted to subcontract the work to independent contractors, and those independent contractors can fulfill the statutory duty of conducting hand digging on behalf of the excavator. The Court, however, concludes that an excavator cannot escape liability if the subcontractor fails to fulfill the excavator's statutorily-imposed duties merely by subcontracting with an independent contractor who performs all of the work.
19. The Court next turns to the question of whether First South is liable under the peculiar risk doctrine. Under the peculiar risk doctrine,
[O]ne who employs an independent contractor to do work which the employer should recognize as likely to create a peculiar risk of physical harm unless special precautions are taken, is subject to liability for injuries caused by the absence of such precautions if the employer fails to provide for such precautions.
Bowles, 1998 WL 97901 at *6.
A peculiar risk is one that is "peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable man would recognize the necessity of taking special precautions." Examples of situations where Delaware courts have applied the doctrine include excavations, demolishing buildings and manufacture or use of explosives. This Court has, however, limited the peculiar risk doctrine to prevent employers of independent contractors from having to "step in and make themselves conversant with all activities of their independent contractors."
Bryant v. Delmarva Power Light Co., 1995 WL 653987, at *6 (Del.Super.Ct. Oct. 2, 1995) (citing Bowles, 1988 WL 97901 at *6).
Bowles, 1988 WL 97901 at *6 (citing Restatement (Second) of Torts § 413 cmt. c. (1965)).
Bryant, 1995 WL 653987 at *6.
20. In Langrell v. Harrington, wherein the defendant had hired an independent contractor to tear down the walls of a theater, he was held liable to the plaintiff for property damage caused by the dynamite blasting. In finding for the plaintiff, the court noted that
Langrell v. Harrington, 41 A.2d 457 (Del.Super.Ct. 1945).
[A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be averted, is bound to see to the doing of that which is necessary to prevent mischief, and cannot relieve himself of his responsibility by employing some one else, whether it be the contractor employed to do the work from which the danger arises or some independent person, or to do what is necessary to prevent the act he has ordered done from becoming unlawful.
Id. at 462.
The fact that the damage occurred to property rather than an individual did not alter the Court's analysis; the Court held that the defendant's duty of exercising care included preventing damage to the plaintiff's adjacent property. The Court further noted the use of dynamite is inherently dangerous and requires the exercise of great care.
Id. at 463.
Id.
21. My reading of Langrell, together with the language in the Act that requires excavators to take all necessary precautions to prevent damage to persons and property, leads me to conclude that the peculiar risk doctrine applies to this case. As in Langrell, First South contracted all of the duties for excavation to Shaffer. The danger to adjacent buildings caused by the use of dynamite in the Langrell case is not dissimilar to the danger posed to existing utility lines by failing to hand dig test holes, as required by the Act. Both implicate a peculiar risk. First South, like the defendant in Langrell, directed that boring occur and thus must have expected, "in the natural course of things, injurious consequences to his neighbor . . . to arise."
Id. at 463.
22. Moreover, Delaware Courts and the Restatement point specifically to excavation as an activity where the peculiar risk doctrine applies. The parties agree that First South failed to take special precautions to prevent damage to existing utility lines. First South's subcontracting of its duties to Shaffer, without insuring that special precautions were taken, cannot relieve it of liability related to the peculiar risk posed by excavation. The Court therefore concludes that First South is vicariously liable under the peculiar risk doctrine.
Bowles, 1998 WL 97901 at *6 (citing Restatement (Second) of Torts § 413 cmt. c (1965)).
23. For all of the foregoing reasons, the Court holds that First South is liable to Delmarva for damage to its utility lines as it failed as an excavator to discharge its duties under the Act. The Court further concludes that First South is vicariously liable for Shaffer's conduct, as it breached its non-delegable duty under the Act by failing to take special precautions prior to excavation in accordance with the peculiar risk doctrine. Accordingly, Plaintiff's Motion for Summary Judgment is hereby GRANTED and Defendant's Motion for Summary Judgment is hereby DENIED.
IT IS SO ORDERED.