Opinion
C.A. Nos. 03C-10-277, 03C-05-031.
Submitted: February 12, 2007.
Decided: May 31, 2007.
Upon Defendant, E.I. du Pont de Nemours and Company's Motions for Summary Judgment. GRANTED.
Thomas C. Crumplar, Esquire, JACOBS CRUMPLAR, P.A., Wilmington, Delaware. Attorney for Plaintiffs.
John C. Phillips, Jr., E squire, PHILLIPS, GOLDMAN SPENCE, P.A., Wilmington, Delaware. Attorney for Defendant, E.I. du Pont de Nemours and Company.
MEMORANDUM OPINION
I.
A little over two years ago, this Court issued an opinion in which it addressed the scope of landowner liability in the asbestos litigation. The court determined that, depending upon the nature of the work performed by an employee of a contractor while on the landowner's premises, some contractor employees could pursue claims against landowners for exposure to asbestos while others, as a matter of law, could not. In due course, the Supreme Court of Delaware reviewed Wooleyhan I, clarified the applicable standards, and directed this Court to apply these standards in the asbestos litigation going forward.
In re Asbestos Litig. (Wooleyhan), C.A. Nos. 00C-08-028, 01C-06-1521, 01C-11-239, 02C-03-194, 01C-10-240, 01C-10-173, 02C-01-041, Babiarz, J. (Del.Super.Ct. Feb. 15, 2005) (Mem. Op.) (not available on-line)(" Wooleyhan I").
id.
In re Asbestos Litig. (Wooleyhan), 2006 WL 1214980 (Del. Apr. 12, 2006)(ORDER) (" Wooleyhan II").
One might think that definitive guidance from the State's highest court would settle the matter. Not so. Since Wooleyhan II was decided, this Court has received dozens of motions from landowner defendants claiming that the plaintiff's landowner liability claims are no longer viable as a matter of law. Plaintiffs counter that these defendants have read too much into Wooleyhan II, and argue that the Court's holding there was substantially more narrow than defendants would have the Court believe. After much litigation, the Court, guided by Wooleyhan I and Wooleyhan II, once again will state its view of landowner liability in the asbestos litigation.
Before the Court are several motions for summary judgment in which landowner defendants argue that plaintiffs' various theories of landowner liability fail as a matter of law. The motions address claims brought by two groups of plaintiffs, separated based on the nature of the work they performed while on the defendants' premises. The first group are employees of independent contractors who did not work directly with asbestos (such as painters or other tradesmen), but allege they were exposed to asbestos on the defendants' premises while working along side of other contractors who were working directly with asbestos (hereinafter "group A plaintiffs"). The second group are employees of independent contractors who worked directly with asbestos while on the defendants' premises, such as asbestos installers or asbestos insulators (hereinafter "group B plaintiffs").
The Court's designation of plaintiffs as group A plaintiffs corresponds to the discussion of these claims in Section A of Wooleyhan II.
Similarly, the Court's designation of plaintiffs as group B plaintiffs corresponds to Section B of Wooleyhan II.
In Wooleyhan I and Wooleyhan II, the courts determined that the extent to which a plaintiff might have a cause of action against a landowner arising from exposure to asbestos while on the landowner's premises would depend, in part, upon whether the plaintiff was a group A plaintiff or a group B plaintiff. As will be discussed below, the distinction drawn by the Wooleyhan opinions between plaintiffs based on the nature of the work they performed on the landowner's premises dictates the legal framework within which the plaintiffs' claims must be analyzed. For clarity's sake, the Court will address the motions for summary judgment relating to group A and group B plaintiffs in separate opinions. This, the first of two opinions, will address claims brought by group B plaintiffs — those who worked directly with asbestos on the landowner defendants' premises.
At oral argument, the Court suggested that it might combine its decisions on motions for summary judgment directed to claims of group A and group B plaintiffs in one opinion. On reflection, the Court is now satisfied that a combined opinion would yield a less focused analysis of the issues. Indeed, although there was certainly no way for the court to have anticipated confusion at the time, as will be discussed below, the fact that Wooleyhan I addressed both group A and group B plaintiffs in a single opinion has led to some of the confusion at the center of the extensive motion practice that has followed Wooleyhan II. The landowner motions now before the Court address different theories of liability, present separate and distinct legal and factual issues, and are deserving of separate treatment. Having said this, it is the Court's intention that the two opinions issued today in Wenke/Arterbridge and Helm/Pennington/Stymerski/Toy will be read in tandem so that together they will address the full range of issues implicated by landowner liability claims in the asbestos litigation.
Defendant, E.I. du Pont de Nemours Co. ("DuPont"), has moved for summary judgment in several cases brought against it. DuPont's argument is simple: as a matter of law, group B plaintiffs have no cause of action against landowners for injuries sustained as a consequence of their own work with asbestos while on the landowner's premises. According to DuPont, both Wooleyhan I and Wooleyhan II clearly hold that group B plaintiffs have no legally viable claim against a landowner arising from their exposure to asbestos while working on the landowner's property. In response, the group B plaintiffs concede that, under the Wooleyhan decisions, they may not bri ng claims against landowner defendants based upon Restatement (Second) of Torts § 343 ("Section 343") (codifying the so-called "safe workplace doctrine"). They do not, however, concede that either of the Wooleyhan opinions foreclose all other tort claims that a group B plaintiff might bring against a landowner arising from exposure to asbestos while working on the landowner's property. Herein lies the controversy.
The parties have selected two complaints of group B plaintiffs against DuPont as the vehicles through which they will offer their respective views of the meaning and reach of the Wooleyhan decisions: Henry Wenke ("Wenke") and William Arterbridge ("Arterbridge"), collectively "Plaintiffs." In deciding the motions sub judice, the Court has considered the facts presented in each case but, in doing so, has tried to clarify the legal standards governing landowner liability generally in order to guide the parties going forward in this litigation. For the reasons that follow, the Court has determined that Wooleyhan I and Wooleyhan II both stand for the proposition that group B plaintiffs may not hold landowners accountable for injuries sustained as a result of their work with asbestos while on the landowner's premises. Accordingly, DuPont's motions for summary judgment as to Wenke and Arterbridge must be GRANTED.
II.
A. Henry Wenke .Wenke alleges he was exposed to asbestos on DuPont's premises while installing asbestos pipe insulation for various independent contractors. At his deposition, Wenke testified that he had worked as a pipe insulator for his entire work life and that his first exposure to asbestos on DuPont property occurred when he worked for Armstrong Cork in the 1940's and 1950's at DuPont's Newport plant and the DuPont Experimental Station. He later worked for Delaware Insulation as a member of the Local 42 Asbestos Workers Union. While employed by Delaware Insulation, Wenke worked at various DuPont facilities, including: (1) DuPont Chambers Works plant; (2) the DuPont building; (3) the DuPont Christiana Lab; (4) DuPont's Edgemoor facility; (5) the DuPont Seaford plant; and (6) the DuPont Wilmington Shops.
Transaction Identification Number ("T.I.") T.I. 11999949 at A-3, A-9.
Id.
Id. at A-5.
Id. at A-10.
Id. at A-5.
T.I. 11999949 at A-6 — A-7.
Id. at A-8.
Id. at A-9 — A-10.
Wenke alleges that he developed an asbestos-related disease as a result of his exposure to asbestos while working on these various DuPont properties. He has asserted claims against DuPont based on various theories of landowner and/or premises liability including, but not limited to, a claim that DuPont engaged in active control over the manner and method of his employer's work and/or voluntarily assumed responsibility for safety on each of the identified work sites. For purposes of the motions sub judice, in order to focus the analysis on the question of whether group B plaintiffs may bring claims against landowners as a matter of law, the Court will assume that there is a factual dispute as to whether DuPont exercised some level of control over Wenke's work and/or assumed some responsibility for safety on the DuPont sites identified by Wenke.
T.I. 4332014, Wenke First Amended Complaint.
B. William Arterbridge.
Arterbridge alleges he was exposed to asbestos while he worked through the Local 42 Asbestos Workers Union for various independent contractors from 1946-1976. He worked as a pipe coverer and asbestos insulator throughout his career. Arterbridge provided a chronological chart of the locations of his employment which refers to his work with asbestos on the following DuPont sites: the DuPont Chestnut Run Carruthers Building while working for Johns-Mansville; the DuPont Newport facility while working for Armstrong Cork and Delaware Insulation; the DuPont Edgemoor facility while working for Phillip Carey and Delaware Insulation; the DuPont Wilmington Shops while working for Delaware Insulation; the DuPont Experimental Station while working for Johns-Mansville; the DuPont Louviers facility while working for Delaware Insulation; and the DuPont ChambersWorks while working for Ritterson Corporation. While his exact job duties varied from facility to facility, Arterbridge worked directly with asbestos products at each facility doing such things as insulating valves, patching foamglass insulation, and applying insulation.
T.I. 4530140 at A-2.
Id.
Id. at C-32 — C-43. In addition to the sites identified on the chart, Arterbridge testified at deposition that he worked with asbestos at the DuPont Edgemoor facility as an employee of Philip Carey. T.I. 12444335 at C-31.
Id. at C-32.
Id.
Id.
Id. at C-33.
T.I. 12444335 at C-35, C-38.
Id. at C-35, 38.
Id. at C-42.
See id. at C-32 — C-43.
Like Wenke, Arterbridge alleges that he developed an asbestos-related disease as a result of his exposure to asbestos while working on these various DuPont properties. And, like Wenke, he has asserted claims against DuPont based on various theories of landowner liability including, but not limited to, a claim that DuPont engaged in active control over the manner and method of his employers' work and/or voluntarily assumed responsibility for safety on these sites. For purposes of the motions sub judice, to focus the analysis, the Court will assume that there is a factual dispute as to whether DuPont exercised some level of control over Arterbridge's work and/or assumed some responsibility for safety on the sites identified by Arterbridge.
T.I. 2717305, Arterbridge First Amended Complaint.
III.
A. Roca and Wooleyhan.
All parties acknowledge that the disposition of DuPont's motions will turn on the Court's interpretation of the Wooleyhan decisions. Thus, before the Court discusses the parties' specific contentions in this case, it is appropriate briefly to discuss In re Asbestos Litigation (Roca), a predicate to the Wooleyhan decisions, and then to summarize the Wooleyhan decisions separately so that the contentions here can be put into proper context.
1. Roca.
Before Wooleyhan, this court addressed landowner liability in the asbestos litigation in In re Asbestos Litigation (Roca). Roca involved a group B plaintiff (allegedly exposed while working directly with asbestos) who sought to hold the defendant landowners responsible for his asbestos related injuries under any or all of the following four sections of the Restatement (Second) of Torts: §§ 413, 416, 422, and 427 (together comprising "the peculiar risk doctrine"). The plaintiff acknowledged the general rule that landowners were not liable to employees of independent contractors working on the premises, but argued that the rule did not apply to him because the landowner defendants had "undertaken inherently dangerous activity" on their properties, had "assumed control of the locations where [plaintiff] had worked, and had taken responsibility for all appropriate safety precautions." The court disagreed. Specifically, the court held that the plaintiff was not a member of the class intended to be protected under any exception to the general rule because the plaintiff's exposure occurred as a result of his own work with asbestos. The court reasoned that the exceptions to Section 409 "provide a remedy for harm caused to third persons by contractors or their employees." In this regard, the court pointed not only to the specific language of Section 409, but also to the Introductory Note to Chapter 15 of the Restatement (Second) of Torts which, as a preface to all of the exceptions to Section 409, explains that Chapter 15 refers to "the contractor and his servants" as putative tortfeasors only, not as persons to whom a duty is owed. The Supreme Court of Delaware affirmed this court's grant of summary judgment to the landowner defendants "on the basis of and for the reasons stated by the Superior Court in its memorandum opinion[.]"
2002 WL 31007993 (Del.Super.Ct. Sept. 3, 2002).
See Roca, 2002 WL 31007993, at *1-2 (explaining the peculiar risk doctrine as standing for the general principle that a "landowner who chose to undertake inherently dangerous activity on his land should not escape liability for injuries to others simply by hiring an independent contractor.").
The general rule is codified in the RESTATEMENT (SECOND) OF TORTS at § 409 (1965) ("Section 409"). Hereinafter, the Court will refer to applicable sections of the Restatement (Second) of Torts as "Section ___."
Roca, 2002 WL 31007993, at *1.
Id. at *2.
Id. emphasis supplied). Section 409 provides: "Except as stated in §§ 410-429, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." (emphasis supplied).
Id. See also RESTATEMENT (SECOND) OF TORTS, ch. 15, tp. 1, Intro. Cmt. (1965).
In re Asbestos Litig. (Roca), 842 A.2d 1238, 1240 (Del. 2004).
2. Wooleyhan I.
Judge Babiarz issued Wooleyhan I on February 15, 2005, and addressed the claims of both group A and group B plaintiffs in a single opinion. With respect to the group B plaintiffs, as in Roca, the court began its analysis by recognizing the general rule that "an employer who hires an independent contractor is not liable for injuries to others resulting from the conduct of the contractor." The court then acknowledged that the Restatement (Second) of Torts recognizes several exceptions to the general rule as set forth in Chapter 15, Sections 410-429. Relying upon Roca, the court held:
The Court will focus on Wooleyhan I's treatment of group B plaintiffs here. The companion opinion in In re Asbestos Litigation (Helm, Pennington, Stymerski Toy), C.A. Nos. 01C-11-239, 02C-03-219, 01C-06-151, 02C-08-093, Slights, J. (Del.Super.Ct. May 31, 2007) (Mem. Op.), will discuss the Wooleyhan opinions in the context of claims against landowners brought by group A plaintiffs.
Wooleyhan I, Mem. Op. at 4 (citing Section 409)
Id. (noting that the exceptions appear in "Sections 410-429 inclusive")
[T]he plain language of § 409 provides that '[e]xcept as stated in §§ 410-29, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.' In other words, Chapter 15 provides a remedy for a third person, that is, for 'another,' but not for a contractor or his employees who have contracted to perform the work which causes the injury. None of the exceptions to the general rule apply to Plaintiffs who were exposed to asbestos as part of their own work. For these Plaintiffs the discussion of Chapter 15 liability ends here.
Id. at 5 (emphasis in original).
Based on this interpretation of Section 409, and the exceptions to that rule set forth in Chapter 15, the court granted the landowner motions for summary judgment with respect to all claims brought by group B plaintiffs pursuant to Chapter 15, including claims based on the landowner's alleged active control over the manner and methods of the contractor's work. The court also rejected the claims that the landowners assumed responsibility for implementing safety measures on the site pursuant to Section 324A.
Id. at 18.
3. Wooleyhan II.
In Wooleyhan II, the Supreme Court of Delaware affirmed Wooleyhan I's grant of summary judgment to landowners defending claims brought by group B plaintiffs. In what is now referred to as the "Section B" portion of that opinion, the Court began its analysis by endorsing the "general rule" of no landowner liability to employees of contractors working on the property as set forth in Section 409. The Court then examined the conclusion in Wooleyhan I that "no exception to the general rule was applicable" to plaintiffs who were employed by contractors "who have contracted to perform the work which causes the injury." After summarizing the parties' arguments, the Court concluded that, by granting the landowner defendants' motions for summary judgment as to all claims of the group B plaintiffs, Wooleyhan I "necessarily reflected" the trial court's determination that Section 343 is not available as a basis to hold a landowner liable to an employee of an independent contractor when the "contractor, through its work, causes the condition" that gives rise to the employee's injury. The Court affirmed, holding: "the employees of an independent contractor may not invoke § 343 of the Restatement to establish landowner liability for injuries caused by conditions created by their independent contractor-employer."
See Wooleyhan II, 2006 WL 1214980.
Id. at *3 (quoting Wooleyhan I).
Id. A review of Wooleyhan I reveals that the court did not expressly address the question of whether group B plaintiffs could pursue claims under Section 343. Wooleyhan II concluded that this ruling was implicit in the lower court's holding, however, because Wooleyhan I granted the landowner defendants' motions for summary judgment as to all claims of group B plaintiffs, including their Section 343 claims.
Id.
The Court then addressed Wooleyhan I's "rejection" of plaintiffs' argument that the landowner defendants should be liable (presumably to both group B and group A plaintiffs) because the landowners "(1) exercised control over the means and methods by which their work was performed and (2) had undertaken responsibility for implementing necessary safety measures but negligently failed to do so." As to these claims, the Court held: "[w]e agree with the Superior Court's rejection of these contentions for the reasons set forth in its Opinion." Accordingly, the Court affirmed Wooleyhan I's grant of summary judgment to the landowner defendants as to all claims asserted by group B plaintiffs, including the determination that group B plaintiffs could not, as a matter of law, pursue claims based on active control or assumption of duty.
Id.
Id.
B. DuPont's Contentions.
DuPont argues that the Supreme Court in Wooleyhan II could not have been clearer in its endorsement of Wooleyhan I's holding that group B plaintiffs cannot, as a matter of law, avail themselves of Sections 324A, 343, or the Chapter 15 exceptions to Section 409. DuPont characterizes Plaintiffs' effort to distinguish the Wooleyhan opinions as nothing more than an "attempt to re-open the record and turn back the clock on Wooleyhan in this separate action." According to DuPont, both Wooleyhan opinions clearly and unequivocally reject landowner liability claims by group B plaintiffs, and this Court need only follow this clear precedent to dispose of the motions DuPont has brought here.
DuPont Ltr. Feb. 9, 2007 at 2.
Id.
C. Plaintiffs' Contentions.
Plaintiffs argue that Wooleyhan II only precludes group B plaintiffs from pursuing claims against landowners pursuant to Section 343. The Supreme Court, according to Plaintiffs, did not intend to depart from prior cases allowing employees of independent contractors to recover against landowners under theories of control of the workplace and other sections of the Restatement. Plaintiffs contend that "[t]he sole issue before the Supreme Court in Wooleyhan . . . was whether the lower court erred in not requiring as a threshold matter that the Plaintiffs must first prove a Defendant's control before proceeding with a Section 343 claim." They argue that any mention in Wooleyhan II of the active control and voluntary assumption of safety theories is "best understood as dicta[.]" As to Wooleyhan I, Plaintiffs argue that this court's rejection of the group B plaintiffs' claims based on active control or voluntary assumption of duty flies in the face of decades of Delaware premises liability case law, and derives from an incorrect assessment of the principles underlying Section 409 and the various exceptions to the general rule expressed in Chapter 15.
T.I.13628611 at 1-2
Id. at 2.
Id.
Id. at 4.
Id. at 4-5.
IV.
The Court's principal function when considering a motion for summary judgment is to examine the record to determine whether genuine issues of material fact exist. Summary judgment will be granted only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. If, however, the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record sub judice, then summary judgment will not be granted.The moving party bears the initial burden of demonstrating that the undisputed facts support his legal claims. If the motion is properly supported, then the burden shifts to the non-moving party to demonstrate that there are material issues of fact for resolution by the ultimate fact-finder and/or, in the case of a defense motion, that the defendant's attack on the legal viability of the plaintiff's claim is unfounded. When reviewing the record, the Court must view the evidence in the light most favorable to the non-moving party.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citing Ebersole, 180 A.2d at 470).
See Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
See United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. 1997);
V.
Both parties have offered vastly different interpretations of precedent that each concedes will control the outcome of the motions before the Court. Because both parties acknowledge that Wooleyhan II is controlling, the Court easily could dispose of these motions by interpreting this precedent and applying it to the undisputed facts of record. This would be the easy approach but not necessarily the best approach in this instance. Given the degree to which the parties disagree as to the meaning of the Wooleyhan decisions, and the extent to which both parties have attempted to place their view of the decisions within a settled framework of Delaware premises liability law, the Court has determined that it must do the same. That is, before interpreting the Wooleyhan decisions, the Court will first consider where they fit in the broader realm of Delaware premises liability law. The Court will then apply the Wooleyhan decisions to the undisputed facts of record in this case to resolve DuPont's motions.
Brzoska, 668 A.2d at 1364.
A. The Development of Landowner Duties To Employees of Independent Contractors and The Unification of Delaware's Common Law and The Restatement.
The law historically has recognized that in the typical relationship between a landowner and contractor, the landowner rightfully expects the contractor to bring his skill and experience to bear on the project he has hired the contractor to perform. Under these circumstances, the contractor is solely accountable for the negligence of his own employees, even when this negligence causes injury on the landowner's property. Thus, Delaware has long recognized the general rule that "an owner or general contractor does not have a duty to protect an independent contractor's employees from the hazards of completing the contract." Delaware courts will not impose a duty upon the landowner in this circumstance because the relationship between landowner and contractor is such that the contractor possesses superior knowledge of the dangers inherent in the work to be performed.
O'Connor v. Diamond State Tel., 503 A.2d 661 (Del.Super.Ct. 1985).
Id. at 663. See also Bowles v. White Oak, Inc., 1988 WL 97901, at *2 (Del.Super.Ct. Sept. 15, 1988) ("an employer of an independent contractor is not liable for injuries caused by the independent contractor's negligence in the performance of his work.").
Vorous v. Cochran, 249 A.2d 746, 747 (Del.Super.Ct. 1965).
As with most "general rules," the common law has developed exceptions to the rule regarding landowner liability vis a vis employees of independent contractors. The early cases finding exceptions to the general rule have one common thread-under the circumstances present on the work site, the landowner, not the contractor, was in the best position to prevent the injury to a third party. For instance, the Divisional Court of England held a landowner liable for injuries to an adjacent landowner caused by the negligence of an independent contractor he hired to replace a structural foundation. The court held that the general rule of non-liability did not shield the defendant landowner from liability "for injury caused by an act certain to be attended with injurious consequences" because the defendant, by virtue of his conduct on the work site, was in the best or, at least, equivalent position to prevent the injury to a neighbor.
Bower v. Peate, LR1 Q.B.D. 321, 327 (1875-76).
Id.
Delaware's common law, likewise, has recognized that landowners may, in certain circumstances, owe a duty to employees of contractors who are injured while working on their property. Indeed, our Supreme Court has noted that the "general rule [of no liability] has been substantially eroded by numerous exceptions." In a seminal case, Judge Bush confronted the general rule in Williams v. Cantera, where he addressed the viability of a claim brought by the employee of an independent contractor who was injured while performing the contract work. After considering the parties' contentions regarding whether the landowner owed a duty to his contractor's employee, the court held: "I find the correct rule to be that a landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work unless the owner retains active control over the manner in which the work is carried out and the methods used."
Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. 1997).
274 A.2d 698 (Del.Super.Ct. 1971).
Id. at 699.
Following Williams, Delaware courts regularly have held that "neither an owner nor general contractor has a duty to protect an independent contractor's employee from hazards created by the doing of the contract work or the condition of the premises or the manner in which the work is performed unless the owner or general contractor retains active control over the manner in which the work is carried out and the methods used." And, based on the active control exception, Delaware courts routinely have held that landowners owed duties to employees of contractors who were directly participating in the contract work that caused their injury, i.e., group B plaintiffs. Delaware courts also have recognized that a landowner who voluntarily assumes responsibility for implementing safety measures on the work site may be held accountable when those measures themselves are not reasonable, or when the safety measures are implemented in a negligent manner.
O'Connor, 503 A.2d at 663 (emphasis supplied) (citing Seeney v. Dover Country Club Apartments, Inc., 318 A.2d 619 (Del.Super.Ct. 1974) (in turn citing Williams)).
See, e.g., id.; Bryant v. Delmarva Power Light Co., 1995 WL 653987 (Del.Super.Ct. Oct. 2, 1995) (engaging in active control analysis to address claim of group B plaintiff, without reference to the Restatement); Bowles, 1988 WL 97901, at *2 (same). Indeed, this Court very recently engaged in an active control analysis in a case arguably involving a group B plaintiff in In re Asbestos Litig. (Hudson), 2006 WL 3872846 (Del.Super.Ct. Jan. 11, 2007). There, Harry Hudson, the plaintiff, could have been fairly categorized as a group B plaintiff because he was exposed to asbestos as a direct consequence of his work when he removed asbestos insulation from broken turbines in order to repair them with machine parts he manufactured. Hudson, 2006 WL 3872846, at *1. The Court granted Delmarva Power Light's ("DPL's") motion for summary judgment as to Hudson's claim of active control because it found that DPL did not exercise the requisite degree of control over Hudson's work at its Edgemoor facility to justify the imposition of a duty upon DPL running to Hudson. Id. at *3-4. The issue of whether Hudson had a viable landowner liability claim under Section B of Wooleyhan II was not raised by the parties. Nevertheless, the Court acknowledges that it may have decided Hudson in a manner at odds with the Wooleyhan decisions, assuming Mr. Hudson was, in fact, a group B plaintiff.
See Handler Corp. v. Tlapechco, 901 A.2d 737, 740-41 (Del. 2006).
In most instances, Delaware's common law mirrors any counterpart statements of the law that appear in the Restatement. Like Delaware's common law, the Restatement, at Chapter 15, provides exceptions to the general rule of no landowner liability to employees of independent contractors, including each of the three "recognized exceptions" identified by our Supreme Court. The Chapter 15 exceptions, including the active control and the assumption of duty exceptions, are clearly stated and carefully defined. They are prefaced at Section 409 by the general rule which provides: "Except as stated in §§ 410-429, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." The comments and illustrations that follow Section 409, and each of the Chapter 15 exceptions, all address scenarios where the landowner's conduct combines in some way with conduct of the contractor and his employees to cause injury to a third party. Neither the Court nor the parties have identified one instance within Chapter 15 where the Restatement recognizes a duty on the part of the landowner running to employees of contractors whose own work on the premises creates the hazard that caused the injury. Thus, it would appear that there is some conflict between Delaware's common law and the Restatement, at least with respect to landowner duties to group B plaintiffs. Very likely it was this conflict that caused Judge Babiarz to recognize a need "to unify the common law rule with the applicable provisions of the Restatement." As support for its decision to follow Chapter 15 of the Restatement, Roca cited with approval a decision of the United States Court of Appeals for the Third Circuit wherein the court traced the history of the applicable Restatement provisions to reach its holding that plaintiffs in the same position as the group B plaintiffs here have no bases to pursue claims against landowners under the peculiar risk doctrine:
See id. at 745 ("The Restatement is consistent with Delaware law.").
Id. at 743 n. 17 (referring to active control, voluntary assumption of safety, and retention of possessory control of the work premises).
Section 409 (emphasis supplied). The term "another," as used in the Restatement, "denotes the person whom the actor's conduct affects, and who is alleging the actor's conduct as the basis of his right to recover against him. . . ." Section 3, comment b.
Wooleyhan I, Mem. Op. at 5.
Monk v. Virgin Islands Water Power Auth., 53 F.3d 1381, 1392 (3[rd] Cir. 1995).
An early draft of the Second Restatement of Torts included a Special Note that excluded employees of the independent contractor from filing suit under its provisions. That note, which ultimately was not adopted, provided:
Special Note. The rules stated in this Chapter are, in general, not applicable to make the defendant who hires an independent contractor liable to two classes of persons. One consists of the employees, or servants, of the defendant himself . . . The other class of plaintiffs not included in this Chapter consists of the employees of the independent contractor. As the common law developed, the defendant who hired the contractor was under no obligation to the servants of the contractor, and it was the contractor who was responsible for their safety. The one exception which developed was that the servants of the contractor doing work upon the defendant's land were treated as invitees of the defendant, whom he owed a duty of reasonable care to see that the premises were safe. This is still true. In other respects, however, it is still largely true that the defendant has no responsibility to the contractor's servants. One reason why such responsibility has not developed has been that the workman's recovery is now, with relatively few exceptions, regulated by workmen's compensation acts, the theory of which is that the insurance out of which the compensation is to be paid is to be carried by the workman's own employer, and of course premiums are to be calculated on that basis. While workmen's compensation acts not infrequently provide for third-party liability, it has not been regarded as necessary to impose such liability upon one who hired the contractor, since it is to be expected that the cost of the workmen's compensation insurance will be included by the contractor in his contract price for the work, and so will in any case ultimately be borne by the defendant who hires him. Again, when the Sections of this Chapter speak of liability to "another" or "others," or to "third persons," it is to be understood that the employees of the contractor, as well as those of the defendant himself, are not included.
The Court notes that Wooleyhan II held that group B plaintiffs in the asbestos litigation could not pursue claims against landowner defendants based on the "safe workplace doctrine." The Court will discuss this aspect of Wooleyhan II in more detail below.
Monk, 53 F.3d at 1392 (quoting Restatement ch. 15 (Tentative Draft No. 7, 1962)).
According to Monk, this special note was omitted from the Restatement at the recommendation of Professor William L. Prosser, the reporter for the Restatement (Second), because not every state embraced the same policies of workmen's compensation. Nevertheless, Professor Prosser recognized that "certainly the prevailing point of view is that there is no liability on the part of the employer of the independent contractor" to employees of the contractor who are injured doing the contract work. Monk noted that "an overwhelming majority" of state and federal courts have held that landowners owe no duty to plaintiffs who fall within the class designated here as group B plaintiffs. For instance, the Supreme Court of Kansas faced the issue of "whether a landowner is liable for the negligence of an independent contractor which results in a work-related injury to an employee of the independent contractor when the employee is covered by workers compensation." The court held that the landowner was not liable under these circumstances, and cited the following "policy reasons" in support of its holding:
Id. (citing 39 A.L.I. Proc. 244-49 (1962)).
Id. It should be noted that the Restatement is the product of careful study of existing common law, as expressed by courts throughout the country, conducted by the American Law Institute ("ALI"). This work was prompted by "[t]he desire of the legal profession for an orderly statement of our Common Law. . . ." RESTATEMENT IN THE COURTS, HISTORY OF THE INSTITUTE AND THE RESTATEMENT, at 1 (1945). "The Restatement states the law as it would be today decided by the great majority of courts." Id. at 12. "[The ALI] started with the belief that out of the mass of case authority and legal literature could be made clear statements of the rules of the common law today operative in the great majority of our States, expressed as simply as the character of our complex civilization admits." Id. at 19.
See Monk, 53 F.3d at 1392, n. 28, 30.
Dillard v. Strecker, 877 P.2d 371, 374 (Kan. 1994).
(1) The landowner should not have greater liability to an employee of an independent contractor than the liability of the contractor to that employee.
(2) The landowner should not have greater liability to the employees of an independent contractor than the landowner has to the landowner's own employees.
(3) Liability on the part of the landowner would encourage the landowner to use the landowner's less experienced employees rather than an experienced contractor.
(4) Employees of an independent contractor, and their dependents, are protected under the provisions of the workers compensation statutes.
(5) Workers in inherently dangerous jobs are fully aware of the dangers involved and receive compensation accordingly.
(6) Landowners may not have expert knowledge of inherently dangerous work, the risks involved, and the methods of avoiding such risks that an independent contractor engaged in such activity possesses.
(7) Liability on the part of the landowner would create a class of employees, those of an independent contractor, with greater rights than the employees of the landowner for doing the same work.
(8) To allow an employee of an independent contractor covered by workers compensation to invoke the inherently dangerous activity doctrine would (a) reward landowners who, despite their own lack of expertise, chose to perform work negligently resulting in injury to workers, (b) increase the risks to innocent third parties, and (c) punish landowners who seek expert assistance in an effort to avoid liability for injury.
(9) A landowner who engages the services of an independent contractor pays directly or indirectly for the compensation coverage when the landowner contracts with the independent contractor.
Id. at 385.
Although the Supreme Court of Kansas limited its decision to the two theories of landowner liability presented there — the peculiar risk doctrine and breach of a non delegable duty assigned by statute or ordinance — the court cited with approval authority from other jurisdictions that precluded claims brought by plaintiffs similarly situated with the group B plaintiffs here against landowners based on active control and/or assumption of safety on the job site.
Id. at 377, 379 (citing Matteuzzi v. Columbus P'ship, L.P., 866 S.W.2d 128 (Mo. 1993) (holding landowner owed no duty to contractor's employee injured by the contract work even when employee made "claims of direct liability based upon the negligent acts of the landowner."); Ray v. Schneider, 548 A.2d 461 (Conn.App. 1988) (addressing claim of direct negligence against the landowner as opposed to vicarious liability or peculiar risk and finding no landowner duty)).
Like Dillard, Roca also discussed the role that workmen's compens ation p lays in characterizing the relationship between landowner and group B plaintiffs for purposes of defining the landowner's duty. Workmen's compensation is the exclusive remedy for workers whose injuries and/or death "aris[e] out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies." The purpose of this exclusivity provision is to avoid lengthy litigation and provide the employee with prompt compensation irrespective of fault. The independent contractor bears the cost of workmen's compensation insurance premiums and, in exchange, is relieved of tort liability. As this court stated in Roca, "property owners who hire contractors and indirectly pay the cost of such [insurance] coverage, should be similarly shielded" from the claims of employees that arise directly from the contract work. B. The Wooleyhan Decisions Are Consistent With Clear Provisions of the Restatement In Recognizing A Distinction Between Plaintiffs Who Worked With Asbestos Directly and Plaintiffs Who Were Exposed to Asbestos Through The Work of Others.
Id. at 385.
DEL. CODE ANN. tit.19, § 2304.
Page v. Hercules, Inc., 637 A.2d 29, 33 (Del. 1994).
Roca, 2002 WL 31007993, at *3.
Section 409 states a general rule of no employer/landowner liability and then provides very limited exceptions to the rule. According to Wooleyhan I, the word "another," as used in Section 409, indicates that claims are available to third persons only, not to "Plaintiffs who were exposed to asbestos as part of their own work" for the contractor. By affirming Wooleyhan I's interpretation of the Restatement, the Supre me Court endo rsed this court's effort to place "reasonable bounds" on the duty of a landowner to the employee of an independent contractor when that contractor's own work created the hazard that caused the plaintiff's/employee's injury.
Wooleyhan I, Mem. Op. at 5.
KEETON at § 53.
Wooleyhan II, 2006 WL 1214980, at *3.
The exclusion of group B plaintiffs from the class of protected persons under Chapter 15 is consistent with the relationship that exists between the landowner, his contractor, and the contractor's employees. The unique features of this relationship include the contractor's (and his employees') familiarity with the peculiar risks of the contract work, the contractor's legal obligation to procure workmen's compensation coverage for his employees in the event they are injured by the risks of the job, and the fact that the employer/landowner indirectly pays the cost of the coverage in the fees paid to the contractor for the work to be performed.
Id.
The Wooleyhan decisions and the Restatement recognize that the dynamics of the relationship between landowners and group B plaintiffs on the one hand, and landowners and group A plaintiffs on the other, are quite different. Simply stated, group B plaintiffs are injured by the very hazards created by their own work on the property — the work they were contracted by the landowner to perform. Group A plaintiffs, on the other hand, are injured as a result of the work (and negligence) of others including, arguably, the landowner. This difference, according to Wooleyhan I, affirmed by Wooleyhan II, justifies different answers to the question of whether the landowner owes a duty to these different classes of plaintiffs. And, while this distinction may mark a departure from preexisting Delaware law, the departure is supported by the provisions of the Restatement, articulable policy reasons, and the common law as stated by the "overwhelming majority" of jurisdictions elsewhere. Roca and the Wooleyhan decisions do not stand alone in Delaware in their recognition of a legally significant distinction between group A and group B plaintiffs. In Urena v. Capano Homes, the landowner hired a general contractor to build homes on the landowner's property. The general contractor engaged a subcontractor to do roofing work. When it became clear that this subcontractor could not complete the job, the subcontractor hired a second subcontractor to finish the roofing work on the project. The plaintiff was a roofer for the second subcontractor who was injured after a fall while performing the contract work. The plaintiff alleged, inter alia, that the landowner and general contractor were liable under Section 411 for negligent hiring of the first subcontractor. Citing Wooleyhan II, the court rejected this claim on summary judgment, holding that the landowner and general contractor owed no duty to the plaintiff because "a third person for purposes of § 411 does not include an employee of an independent contractor." The court concluded: "As the employee of an independent contractor, plaintiff does not have a claim against the general contractor that hired the subcontractor that hired another subcontractor that hired him. Likewise, the landowner has no liability as a landowner for the reasons stated in [ Wooleyhan II]."
See Monk, 53 F.3d at 1392, n. 28, 30. But see Kinsman v. Unocal Corp., 123 P.3d 931, 942 (Cal. 2005) (explaining that landowner may be liable to employee of independent contractor for injuries sustained on the premises related to "the object of the work of the independent contractor" when the contractor's reasonable inspection of the premises within the scope of his employment would not reveal the hazard). Kinsman made a distinction between the direct negligence of the landowner and vicarious liability of the landowner by virtue of the negligence of his contractor — finding that group B plaintiffs could pursue claims of direct negligence against the landowner but not the claims of vicarious liability. Id. at 937-38. While this is certainly a principled approach to the issue, it is not the approach endorsed in the Wooleyhan decisions.
901 A.2d 145 (Del.Super.Ct. 2006).
Id. at 147-48.
Id.
Id. at 153.
Id. at 154.
Id. at 155.
In this case, the Court rejects the Plaintiffs' argument that Wooleyhan II's affirmance of Wooleyhan I's "rejection" of their claims (based on active control, assumption of safety obligations and other "exceptions to the general rule") was nothing more than dicta. When interpreting Wooleyhan II, this Court cannot ignore the fact that the Supreme Court in an en banc decision affirmed this court's grant of dispositive relief to the landowner defendants on all claims asserted by group B plaintiffs. Active control, assumption of safety obligations, and Section 343 all were alleged by the group B plaintiffs as theories of negligence against the landowners. The court in Wooleyhan I rejected each of these claims when it granted complete dispositve relief to the landowners with respect to all claims of the group B plaintiffs. The Court declines to accept the premise that the Supreme Court was unaware of the procedural posture of the case, or the import of its decision to affirm Wooleyhan I "for the reasons set forth in [that] Opinion." Affirming a trial court's award of dispositive relief is hardly fertile ground for dicta. Plaintiffs erroneously characterize Wooleyhan I's factual analysis of the active control issue by attempting to link that analysis to group B plaintiffs. Clearly, Wooleyhan I's consideration of the claims of group B plaintiffs ended when the court concluded, "[f]or these Plaintiffs the discussion of Chapter 15 liability ends here." The consideration of the active control factors that follows in Wooleyhan I expressly relates to the claims of "Plaintiffs who performed work such as painting." As the court explained, such plaintiffs are "'others' for the purpose of Chapter 15 of the Restatement and, [accordingly] these Plaintiff's (sic) claims under this chapter are viable." As to these group A plaintiffs, the landowner defendants argued that their claims failed as a matter of law because they had not carried their burden to establish that the landowner actively controlled the worksite or assumed the obligation to establish safety measures on the site. The court in Wooleyhan I agreed that the group A plaintiffs had not met their burden to establish landowner control, but held that such control was not a predicate to landowner liability under Section 343. These conclusions, also affirmed in Wooleyhan II, have nothing to do with the viability of the claims asserted by the group B plaintiffs.
See Wooleyhan I, Mem. Op. at 2 ("Defendants' motion for summary judgment is granted as to those Plaintiffs who were exposed to asbestos directly through their own work.").
Wooleyhan II, 2006 WL 1214980, at *3.
Wooleyhan I, Mem. Op. at 5.
Id.
Id.
See Wooleyhan II, 2006 WL 1214980, at *2.
The Court also rejects the group B Plaintiffs' contention that the Wooleyhan opinions address only Chapter 15 claims against the landowner based on vicarious liability for the conduct of the contractor. The court's holding in Wooleyhan I unequivocally rejects the plaintiffs' claims under all of the Chapter 15 exceptions to the general rule, including the active control provisions of Section 414 that involve the direct negligence of the landowner. Wooleyhan II affirmed that decision, and also concluded that group B plaintiffs could not pursue claims of negligence against landowners under Section 343 "for injuries caused by conditions (such as the presence of asbestos) created by their own independent contractor-employer (such as asbestos insulation contractors)." The remaining theory of landowner liability — assumption of safety obligations per Section 324A — fails for the same reason the Chapter 15 and Section 343 theories fall short. As the comments to Section 324A explicitly state: "This Section deals with the liability to third persons." The reference to "third persons" does not include employees of the contractor whose work creates the condition that causes the injury.
Id. at *3.
Section 324A provides:
One who undertakes, gratuitously or for consideration, to render services to another w hic h he should reco gniz e as n eces sary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm suffered because of reliance of the other or the third person upon the undertaking.
See Section 324A, cmt. a.
Wooleyhan I, Mem. Op. at 11-12.
Lastly, the Court finds unpersuasive the Plaintiffs' reliance upon Handler to support their contention that the Supreme Court could not have intended to endorse Wooleyhan I's treatment of their claims. They argue that Handler, decided two months after Wooleyhan II, engaged in a full blown active control analysis, thus revealing that such claims for group B plaintiffs survived in tact after Wooleyhan II. The Plaintiffs have misread Handler's facts. Mr. Handler was a painter employed by a subcontractor to paint homes in a housing development project. Another subcontractor was responsible for providing temporary safety rails on the second floor balcony of each home so that the other trades could perform t heir wo rk safel y. Mr. Handler was injured when he slipped and fell off a balcony that did not have a safety rail. For purposes of the Restatement, therefore, Mr. Handler was a "third person" because he was injured by the hazards created by (and the alleged negligence of) another independent contractor who failed properly to install the safety rail, i.e., he was a group A plaintiff. Handler offers no direct guidance, therefore, with respect to the viability of the claims brought by the group B Plaintiffs here.
Id.
Id.
See Wooleyhan I, Mem. Op. at 5.
The Court is satisfied that DuPont has met its burden of showing that there are no genuine issues of material fact with regard to whether it owed a duty to the group B plaintiffs. Plaintiffs cannot prevail on any set of facts they have presented as predicates for their claims of negligence against DuPont because the hazard to which they were exposed was a direct result of the asbestos insulation work they were contracted to perform at each of the DuPont facilities they have identified. DuPont did not owe these Plaintiffs a duty to protect them from the hazards of their own job. Based on Roca and Wooleyhan, the Court is obliged to conclude that the Wenke and Arterbridge claims fail because they were exposed to asbestos "as a result of their own work or their employers' work with asbestos."
Wooleyhan II, 2006 WL 1214980, at *3.
VI.
Based on the foregoing, DuPont's motions for summary judgment with respect to the claims of both Wenke and Arterbridge are GRANTED. IT IS SO ORDERED.Judge Joseph R. Slights, III Original to Prothonotary
.