Opinion
C.A. Nos. 01C-11-239, 02C-03-219, 01C-06-151, 02C-08-093.
Date Submitted: January 11, 2007.
Date Decided: May 31, 2007.
Upon Defendant E.I. du Pont de Nemours and Company's Motions for Summary Judgment. GRANTED.
Upon Defendant Delmarva Power Light's Motion for Summary Judgment. GRANTED.
Upon Defendant DaimlerChrysler Corporation's Motion for Summary Judgment. GRANTED.
Kathleen D. Hadley, Esquire, LAW OFFICE OF PETER G. ANGELOS, P.C., Wilmington, Delaware. Attorney for Plaintiffs.
John C. Phillips, Jr., Esquire, PHILLIPS, GOLDMAN SPENCE, P.A., Wilmington, Delaware. Attorney for Defendant E.I. du Pont de Nemours and Company.
Robert S. Goldman, Esquire and Lisa C. McLaughlin, Esquire, PHILLIPS, GOLDMAN SPENCE, P.A., Wilmington, Delaware. Attorneys for Defendant Delmarva Power Light Company.
Somers S. Price, Jr., Esquire and James M. Kron, Esquire, POTTER ANDERSON CORROON, LLP, Wilmington, Delaware. Attorneys for Defendant DaimlerChrysler Corporation.
MEMORANDUM OPINION
I.
This is the second of two opinions deciding motions for summary judgment brought by several landowner defendants in the asbestos litigation. The first opinion addressed whether a landowner and/or general contractor owed a duty to an employee of an independent contractor to protect the employee from the hazards of his work with asbestos. Based on clear precedent of this court, affirmed recently by the Supreme Court of Delaware, the Court concluded that a landowner/general contractor owed no duty to protect employees of independent contractors hired to work directly with asbestos from the hazards inherent in their own work. For ease of reference, the Court referred to this category of plaintiffs as "group B plaintiffs," a designation the Court will utilize again here.
In Re Asbestos Litigation (Wenke), C.A. Nos. 03C-10-277, 03C-05-031, Slights, J. (Del.Super.Ct. May 31, 2007) (Mem. Op.)(" Wenke").
As explained in Wenke, the Court referred to these plaintiffs as "group B plaintiffs" because their claims were addressed in Section B of the Supreme Court of Delaware's opinion in In re Asbestos Litig. (Wooleyhan), 2006 WL 1214980 (Del. Apr. 12, 2006)(" Wooleyhan II").
In this opinion, the Court turns to the claims of employees of independent contractors who are exposed to asbestos on the landowner's property not while working directly with asbestos, but while working along side of others who are working directly with asbestos (these plaintiffs were to referred to previously and will be referred to again here as "group A plaintiffs"). Specifically, the Court considers the extent to which landowners may be liable to group A plaintiffs under traditional common law notions of premises liability, including those embodied in Section 343 of the Restatement (Second) of Torts (the so-called "safe workplace doctrine").
The claims of this category of plaintiffs were addressed in Section A of Wooleyhan II.
RESTATEMENT (SECOND) OF TORTS, § 343 (1965)("Section 343").
As was the case in Wenke, the Court must consider the claims of these group A plaintiffs against the backdrop of clear direction provided by our Supreme Court in Wooleyhan II. This opinion will address the issues raised in the remand instructions of Wooleyhan II, along with other related issues identified by the parties in the litigation of the motions currently before the Court. The parties have selected the claims of four plaintiffs as the vehicles through which the Court should consider the broader issues raised by Wooleyhan II. The four plaintiffs are: John Helm ("Helm"), Joseph Pennington ("Pennington"), Robert Stymerski ("Stymerski"), and Harry Toy ("Toy"), collectively "Plaintiffs." Defendant, E.I. du Pont de Nemours and Company ("DuPont"), has moved for summary judgment with respect to the claims of Helm, Pennington, Stymerski, and Toy. Defendant, Delmarva Power Light Company ("DPL"), has moved for summary judgment wit h respect t o Penning ton's claims. Lastly, Defendant, DaimlerChrysler Corporation ("Chrysler"), has moved for summary judgment with respect to Toy's claims. Wooleyhan II recently defined the elements of a Section 343 claim. As explained below, to make a claim under Section 343, the plaintiff must present evidence sufficient to allow the fact-finder to determine that a latent preexisting hazard (in this case asbestos) was on the premises. In addition, the plaintiff must demonstrate that the landowner knew of the asbestos, the plaintiff and his employer did not know of the asbestos or of its hazardous propensities, and the landowner knew that the plaintiff and his employer did not know of the asbestos hazard on the property. Thus, to defeat summary judgment, the plaintiff must point to facts from which the Court may infer both that the landowner appreciated the asbestos-related hazard on his property prior to the plaintiff's encounter with the hazard and that the plaintiff and/or his employer did not. It is this latter aspect of the Plaintiffs' Section 343 claims that was left unresolved in Wooleyhan II and will be the main focus of the Court's opinion here.
Wooleyhan II, supra at *3 (directing on remand that the Court consider the extent to which the landowners knew or should have known that the plaintiff/employee or his contractor/employer did not know of the latent hazard on the premises, and the extent to which a latent hazard "can fairly be characterized as 'preexisting'").
Here again, the parties and the Court agreed that the parties would select plaintiffs whose claims were representative of the larger universe of plaintiffs who have made premises liability claims in the Delaware asbestos litigation. The intent of the Court and the parties is that this opinion and Wenke will extend to other similar claims and that the parties will submit forms of order in accordance with these opinions to dispose of other pending motions for summary judgment that implicate these issues.
When appropriate, the Court will refer to the three defendants collectively as "Defendants."
In addition to Section 343 claims, each of the Plaintiffs raised claims based on non-premises liability theories (e.g. active workplace control), and each of the Defendants moved for summary judgment on these claims. Helm, Pennington and Stymerski declined to respond to the Defendants' motions on the non-Section 343 claims. Toy, however, has answered Chrysler's motion for summary judgment with respect to his claim that Chrysler actively controlled his work on the premises and/or assumed responsibility for his safety. The Court will decide Chrysler's motion as to these claims as well.
For the reasons that follow, the Court has determined that the Plaintiffs have not developed sufficient facts upon which a reasonable fact-finder could determine that the Plaintiffs and/or their employers did not know of the asbestos hazard on the Defendants' properties prior to the Plaintiffs' exposures. Nor have they presented sufficient evidence from which a reasonable fact-finder could draw an inference that the Defendants knew that the Plaintiffs and/or their employers did not know of the asbestos hazard. Accordingly, the Defendants' motions for summary judgment with respect to the Plaintiffs' claims under Section 343 must be GRANTED. Likewise, the record does not contain facts that would allow a reasonable fact-finder to conclude that Chrysler exercised active control over the means and methods by which Toy performed his work on Chrysler's property or that Chrysler undertook responsibility to implement safety measures with respect to such work on the job site. Chrysler's motion for summary judgment as to these theories of liability must also be GRANTED.
II.
A. John HelmHelm alleges that DuPont failed to provide a safe work place while he worked for independent contractors hired to perform services at various DuPont work sites. DuPont disagrees and has moved for summary judgment.
Helm's non-Section 343 claims were addressed by this court in In re Asbestos Litig. (Wooleyhan), CA. No. 00c-08-028, 01C-06-151, 01C-11-239, 02C-03-194, 01C-10-173, 02C-01-041 at 18 (Del.Super.Ct. Feb. 15, 2005)( "Wooleyhan I") (not available from on line services).
1. Helm's Exposure to Asbestos On DuPont Property
From 1973 to present, Helm has been a member of the Local 100 of the International Brotherhood of Painters and Allied Trades. Helm worked as a painter in several buildings at the DuPont Louviers facility ("Louviers") in January and February 1974 doing renovation work. He believes he was exposed to asbestos while working near drywallers, pipe fitters and insulators who were also on the job. Helm could not say, however, whether the products he saw those trades using at Louviers contained asbestos. Accordingly, he has identified two "co-workers" to support his allegation of exposure at Louviers: James Volk and Leonard Rash. Mr. Volk, a pipe fitter for B.F. Shaw, identified several asbestos-containing products that the insulators used at Louviers during the time Helm was there. Mr. Rash also worked for B.F. Shaw at Louviers when Helm was there. His job history indicates that he worked with and around asbestos products, such as asbestos cement and Johns-Manville pipecovering. The record is silent with respect to the specific locations within Louviers where Helm, Volk and Rash worked. Aside from vague references to multiple buildings at Louviers, the record is also silent with respect to the physical layout of the Louviers facility.
Transaction Identification Number, ("T.I."), 11401935 at 3.
Id., Ex. A., Job History at 13; T.I. 11289178, at A-106.
T.I. 11289178, at A-111.
Id.
T.I. 11401935, Ex. T at 1, 55-56.
Id. at 177, Job History at 61; T.I. 11391848, Ex. R (adopted and incorporated by reference by Plaintiffs).
Id. Ex. U, p. 94.
Id.
T.I. 11401935, Ex. A at 77.
Helm worked at the DuPont Newport facility ("Newport") from March to June 1974 as an apprentice painter doing maintenance and new construction. At tha t time the Newport facility was comprised of approximately 143 acres. He testified that he worked "all over the plant." Helm alleges he was exposed to asbestos through the work of other trades on the job, including insulators and pipe fitters. When asked if he believed he was exposed to asbestos-containing products at the Newport site, however, Helm answered "I couldn't tell you."
Id., Ex. A, Job History at 14.
T.I. 114588573, Ex. E.
T.I. 11289178, at A-112.
See T.I. 11401935, Ex. A at 83, Job History at 14. See also T.I. 11391848, Ex. R (adopted and incorporated by reference by Plaintiffs).
T.I. 11401935, Ex. A at 83-84.
Helm offers three witnesses to support his allegation of exposure to asbestos while working at Newport: Franklin Ruffin, Addison Williams, and William F. Nolan. Mr. Ruffin worked at Newport from 1967 to 1984 installing asbestos-containing pipe covering, block, cement, cloth, adhesives, and floor tiles. Mr. Williams worked at Newport as an insulator for Urethane Foam Company from April 1973 to October 1974. While there, he used various asbestos-containing products including firebrick, asbestos cloth, cement, block and pipe covering. Mr. Nolan was also employed by the Urethane Foam Company and worked as an insulator at Newport from May 1973 to May 1974 using various asbestos products.
Id., Ex. V at 35, 45-46, 74.
Id., Ex. W at 1, 5-6, 51-53, Job History at 30.
See id., Ex. W, Job History at 30.
Id., Ex. X, at 114-115, 359-363, 441-445, Job History at 44. See also T.I. 11391848, Ex. R (adopted and incorporated by reference by Plaintiffs).
Mr. Nolan testified that he worked in the blue and red rooms. Neither Ruffin nor Williams were able to state where within the Newport facility they were working at a particular time, and none of the three co-worker witnesses could identify Helm (or his fellow painters) as people they recall working with or along side of while at Newport. Helm, likewise, could not identify Ruffin, Williams or Nolan as his coworkers, nor could he identify the specific contractors around whom he worked when he believes he was exposed to asbestos.
T.I. 11401935, Ex. X at 114.
Id., Exs. V, W, X.
Id., Ex. A at 81.
Helm worked at the DuPont Nemours Building ("Nemours") in March and April 1976 as an apprentice painter doing maintenance work. When asked where in the building he worked, Helm testified: "we were going from one place to another place, so I couldn't tell you exactly where we were at." He saw pipe fitters and electricians also working at the site. His job history lists drywall joint compound as the only asbestos-containing product at Nemours. He was asked at deposition: "Do you believe you were exposed to asbestos when you worked at the Nemours building from March to April 1976?" Helm replied "Not really."
Id., Ex. A, Job History at 23.
T.I. 11289178, at A-112.
Id.
T.I. 11401935, Ex. A, Job History at 23.
T.I. 11289178 at A-114.
2. Helm's Knowledge of the Asbestos Hazard
Helm testified that while working at all three DuPont sites, his work area would be "roped off" from other trades. He was not permitted to paint in dusty conditions and could not paint where the insulators or pipe fitters had not finished working. He suspected that these other trades, including the insulators and drywall finishers, were working with asbestos products. Nevertheless, Helm did not believe that asbestos was harmful until the 1980's when he read about it in newspapers and then began to notice that products that used to contain asbestos were being marketed as asbestos-free. He did not recall seeing asbestos discussed in his union magazine. Helm is generally familiar with OSHA regulations but does not know when they were enacted or whether they governed asbestos work on the DuPont sites.3. DuPont's Knowledge of the Asbestos Hazard
Helm will offer the testimony of Dr. Barry Castleman, Ph.D., an asbestos "historian," who will talk about the "state of the art" within various industries relating to asbestos. Dr. Castleman will testify that the medical and scientific communities were aware that occupational exposure to asbestos was hazardous by the late 1930's. He will then trace the release of this data and subsequent data to various government agencies, trade organizations and other industry-related entities (including individual businesses).According to Helm, DuPont was a member of the Industrial Hygiene Foundation ("IHF") from 1936 to 1991. IHF is an entity that Dr. Castleman will identify as having intimate familiarity with the hazards of asbestos. IHF sent monthly digests to each of its members. Each monthly digest contained abstracts of articles from 65 to 70 scientific journals regarding industrial health and safety issues including asbestos-related hazards. Therefore, Helm asserts, at the very least, DuPont had constructive knowledge of the dangers of asbestos through its exposure to the IHF Digests during the time he worked at DuPont sites.
T.I. 11391848, Ex. E.
Id., Ex. L at 4-5.
Id., Ex. D at 19-20.
Id.
Helm also charges DuPont with actual knowledge of the dangers of asbestos. According to Helm, the head of DuPont's Industrial Hygiene Laboratory, Adrian L. Linch, testified that as of 1956 he subscribed to IHF Digests and other industrial hygiene publications. He also testified that in early 1960 he became concerned about the amount of dust being generated by insulators using asbestos insulation on DuPont sites. Further, Linch recalled that other employees within the DuPont organization brought their concerns regarding the potential hazards of asbestos to his attention.
Id., Ex. F at 25-26.
Id., Ex. F at 35-36.
T.I. 11391848, Ex. F at 38.
Helm also points to the testimony of DuPont construction division safety manager, Kenneth Keuper, and internal memoranda authored by DuPont toxicologist, Dr. G.J. Stopps, as evidence of DuPont's actual knowledge of the asbestos hazard. Mr. Keuper testified that in 1965 or 1966, he issued a dust control policy that required workers to wear respirators around asbestos. He initially began to recommend substitutes for asbestos-containing products between 1959 and 1963 because he believed that asbestos was a health hazard. Dr. Stopps worked at DuPont's Haskell Laboratory for Industrial Medicine and Toxicology from 1958 until 1971. One of Dr. Stopps' duties was to stay current about health issues related to occupational exposure to asbestos by reading literature and attending meetings and lectures. On November 2, 1964, Dr. Stopps stated in a memorandum that "the risks [of asbestos related disease] are highest where the environmental conditions are most difficult to control. . . . [and] well-fitted, respiratory protective devices are the most effective means of protecting the workers." In response to the asbestos hazard at DuPont sites, Dr. Stopps proposed implementing a pulmonary function testing program on all workers exposed to asbestos to ascertain the risks of liability.
Id., Ex. G at 416-417.
Id., Ex. G at 417, 420.
Id., Ex. H at 16, 19.
Id., Ex. H at 33, 71.
T.I. 11391848, Ex. I.
Id.
Dr. Stopps issued another memorandum in June 1966 in which he recognized that asbestos fibers cause chronic pulmonary disease. He recommended several methods to prevent workers from inhaling asbestos fibers. "Customers should be advised that there is some hazard associated with working with asbestos and that strict dust control measures must b e taken." He recommended that workers exposed to asbestos dust wear dust respirators. Dr. Stopps testified that DuPont management agreed at a conference in May 1970 to warn employees of the health dangers posed by asbestos insulation.
Id., Ex. K.
Id., Ex. K.
Id., Ex. K.
Id.
T.I. 11391848, Ex. H at 214-216.
To complete his record on DuPont's knowledge of asbestos hazards, Helm relies on Dr. Orn Eliasson, a specialist in internal and pulmonary medicine, who is expected to testify that exposure to asbestos fibers is dangerous at any level of exposure. Dr. Eliasson will opine that, in the work environment, asbestos fibers "become airborne, and they are, in essence, carried with air streams within a given room, within a given work site, and are dispersed wherever the air may take them."
Id., Ex. L.
Id., Ex. L at 6444.
Dr. Steve Hays, PE, CIH, FACEC, an industrial hygienist, will further explain this concept of "fiber drift." According to Dr. Hays, industrial hygenists are able to determine how far asbestos fibers will travel in various working environments. Fiber drift, according to Dr. Hays, results in asbestos exposure not only to those working with the product, "but [also] to other individuals who are in direct and general proximity to such activity." Helm alleges that DuPont was aware of this phenomenon through its own internal industrial hygiene efforts as well as its exposure to IHF research on the subject.
Id. at 10.
4. DuPont's Knowledge That Contractors Were Ignorant of The Asbestos Hazard
Helm relies on the deposition testimony of Rufus Scrivens and Ingo Zeise to show that DuPont knew that he, and all independent contractors on the DuPont job sites, were ignorant of the dangers of asbestos. Mr. Scrivens was a laborer for DuPont at several different sites from July 1961 to February 1971 through his local union. Although he did not work directly with independent contractors, he observed them enter the DuPont facilities. When they entered the facilities, he saw that they were required to obtain hard hats and identification badges from DuPont personnel. They also received the safety books that were given to DuPont's own employees. Safety meetings were held every Monday morning on the DuPont site by the various independent contractors, but DuPont safety engineers would attend all safety meetings.
T.I. 11391848, Ex. O at 10-11.
Id., Ex. O at 54.
Id., Ex. O at 54-55.
Id., Ex. O at 55.
Id., Ex. O at 56.
Mr. Ziese was a DuPont safety engineer who started as a safety inspector in 1956 and worked his way through the ranks of safety engineer and safety supervisor. During this time, he was responsible for ensuring that DuPont safety policies were implemented at the site. According to Mr. Ziese, DuPont safety rules had to be followed by both DuPont employees and employees of independent contractors. Mr. Ziese spoke with the e m p loyees of independent contractors directly only in "cases of imminent danger." He was not asked directly to comment on whether the independent contractors working on DuPont job sites knew that asbestos was on the sites or the asbestos was hazardous.
Id., Ex. B at 5-6.
T.I. 11391848, Ex. B at 35.
Id. Ex. B at 36.
Mr. Ziese testified that employees of independent contractors were required to attend a safety orientation when they arrived on the site. The orientation educated the workers as to the general safety rules, such as hard hats, ties off, etc., that were in the DuPont safety handbook. DuPont management instructed the contractor's foreman as to which topic(s) to discuss each week at the safety meetings. DuPont's Tool Box Meeting requirement stated that "[t]he purpose of this meeting is to assure that every man on the job receives all the Safety information developed and to renew Safety efforts and thought on a forecasted basis." It further instructed the foremen that "[m]aterial for this meeting can be obtained from DuPont's Weekly Safety Meeting Guide. Other current topics will be supplied through DuPont." DuPont concluded its manual by stressing the importance of avoiding workplace injury and that employees should approach their foreman or a DuPont supervisor if they ever had any questions.
Id., Ex. B at 42-44.
Id., Ex. B at 49.
Id., Ex. P at 18.
Id.
T.I. 11391848, Ex. P at 41.
Helm's testimo ny corroborates Mr. Scrivens' and Mr. Ziese's testimony. Helm recalled safety rules requiring the workers to wear hard hats, safety glasses, and other safety gear. The safety manual also contained rules regarding tying-off ladders and roping-off work areas. Helm testified that when he signed in for his first day of work at a DuPont site, he was given a safety booklet that contained "safety do's and dont's" published and distributed by DuPont. Helm also recalled a DuPont engineer at each job site who was responsible for safety. Helm's employers did not recommend that he wear a dust mask or respirator to reduce his exposure to asbestos, nor did he receive such direction from any DuPont employee.
T.I. 11401935, Ex. A at 86-87.
Id., Ex. A at 87.
Id., Ex. A at 114.
Id., Ex. A at 113, 117.
Id., Ex. S, Interrog. 21.
According to Helm, the evidence of record demonstrates that DuPont took an active role in monitoring safety compliance at its job sites. Through this process, DuPont would have had ample opportunities to warn independent contractors of latent hazards on its sites, including asbestos. DuPont also would have been able to detect the state of its contractors' knowledge (or lack thereof) with regard to such hazards.
B. Joseph Pennington
Pennington has brought claims against both DuPont and DPL arising from his alleged exposure to asbestos while working on their premises. DuPont and DPL seek summary judgment on all claims. In response, Pennington's Answering Brief does not address the Defendants' motions regarding his active control or assumption of safety responsibility claims. Accordingly, the motions as to these claims are deemed unopposed.
T.I. 11288769, at 11-17.
T.I. 11415338.
See Emerald Partners v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. 2003), aff'd, 840 A.2d 641 (Del. 2003) ("It is settled Delaware law that a party waives an argument by not including it in its brief.").
1. Pennington's Exposure to Asbestos On DuPont Property
Pennington alleges he was exposed to asbestos when he worked at the Hotel DuPont from September 1966 to April 1967. Pennington was an apprentice ironworker/welder for Steel Suppliers when he was sent to the Hotel DuPont to work on a new construction project followed by renovation and maintenance. He worked on the roof of the hotel and then on "one or two floors" to install the platform for the air conditioning unit on the top of the hotel. Although he worked around other trades, particularly insulators, Pennington does not know if he was exposed to asbestos at the Hotel DuPont.
T.I. 11400693, at Ex. A, Job History at 22.
Id.
T.I. 11289178, at A-201 — A-202.
Id. at A-203.
Pennington lists several witnesses to support his allegations of exposure to asbestos at the Hotel DuPont: William F. Nolan, Lawrence Purcell, and Thomas Smedley. Mr. Nolan worked at the Hotel DuPont while Pennington was at the site from July 1966 to mid-July 1967. He was an apprentice insulator for D.I. Distributors at that time and used various asbestos products at the site. Mr. Purcell worked at the Hotel DuPont from January 1966 to March 1970. He was employed by B.F. Shaw as a pipe fitter working on renovations and new construction and observed insulators and other trades on the job site. He testified that the insulator's work created asbestos dust. Mr. Smedley was an electrician for DuPont from June 1947 to January 1985 and worked at a different DuPont building each week, including the Hotel DuPont. These three witnesses, and their job histories, confirm the presence of several different asbestos products on the Hotel DuPont site during the time Pennington worked there. They do not, however, place these products in any specific proximity to Pennington because they cannot recall or did not state specifically where they worked on the Hotel DuPont site at any given time.
Id., Ex. S, Job History at 16.
Id.
Id., Ex. T, Job History at 6.
Id.
T.I. 11400693, Ex. T at 125.
Id., Ex. U, Job History at 4.
Id., Ex. U, Job History at 4; Ex. T at 122.
2. Pennington's Knowledge of The Asbestos Hazard
Pennington did not recall that asbestos was ever discussed at his regular union meetings. Nevertheless, he acknowledged that "we probably had something about [it]. But I didn't pay a whole lot of attention . . . I don't ever recall talking about it." His local union began an asbestos-screening program "a few years ago," but he did not get involved. On the job site, Pennington attended safety meetings conducted by his foreman because it was required by DuPont. He is not sure whether the topic of dust, asbestos, masks, or respirators ever came up at these meetings. In any event, he recalled that he did not wear a mask or a respirator at the DuPont site.
T.I. 11400693, Ex. A at 55.
Id.
Id., Ex. A at 56. Mr. Pennington testified at his deposition on April 16, 2003.
Id., Ex. A at 195.
Id.
Id.
3. DuPont's Knowledge of the Asbestos Hazard
Pennington relies upon Helm's evidence to demonstrate DuPont's knowledge of the dangers of asbestos at the time he worked at the Hotel DuPont.
4. DuPont's Knowledge That Contractors Were Ignorant of the Asbestos Hazard
Pennington relies upon Helm's evidence to show that DuPont's safety guidelines and procedures demonstrate that DuPont knew that Pennington and his employer did not know of the dangers of asbestos. Additi onally, while working at the Hotel DuPont, Pennington testified that he had to follow DuPont's safety rules, such as the requirement to wear a hard hat and tie off ladders. A DuPont safety man would patrol the site and advise Pennington's foreman that an employee was not tied off or did not have his hard hat on. Then, the foreman, at the direction of the DuPont safety man, would instruct the employee to follow the DuPont safety rule. The same process was followed when the DuPont safety man wanted to remove an employee — "he would call my foreman and say, I want the man off the project, and you had to get him off."
T.I. 11400693, Ex. A at 191.
Id., Ex. A at 192.
Id., Ex. A at 198.
Pennington would attend safety meetings conducted by his foreman because it was required by DuPont. He is not sure whether the topic of dust, asbestos, masks, or respirators ever came up at these meetings. He did not wear a mask or a respirator at the DuPont site. Likewise, Mr. Nolan testified that he did not wear a respirator or dust mask at the DuPont site as they were not required or made available to employees. Mr. Smedley testified that he did not work with a respirator until 1984, and then only because he "fought for it."
Id., Ex. A at 195.
Id.
Id.
T.I. 11400693, Ex. S at 362.
Id., Ex. U at 24.
5. Pennington's Exposure to Asbestos on DPL Property
Pennington worked as an ironworker for independent contractors at DPL's Edgemoor facility ("Edgemoor") on three separate occasions: from mid-January to April 1968, from October 1968 to January 1970, and from mid-July to August 1973. During his first job at Edgemoor, Pennington worked for Steel Suppliers. For his second tour at Edgemoor he worked for Raytheon Engineers Constructors. He then returned to Steel Suppliers for his third and final job at the DPL facility. Pennington testified, "I strongly believe that any time I went on the Edgemoor Plant, and you went inside that building, you were exposed to asbestos."
T.I. 11288769, at A-1, A-5 — A-6, A-10 — A-11.
Id. at A-5 — A-6.
T.I. 11415338, Ex. A, Job History at 31.
Id., Ex. A at 41.
Id., Ex. A at 167.
During his first job at Edgemoor, Pennington alleges he was exposed to asbestos while he did both maintenance and new construction work. He worked throughout the plant; half of his work was inside the plant and half was outside. When he was working in an area of new construction, Pennington believes that he worked in proximity to asbestos because he worked around insulators installing new insulation. When doing maintenance work, Pennington believes he was exposed to asbestos because he had to remove insulation if it impeded his job as an ironworker. Although he now believes he was exposed to asbestos, Pennington could not confirm his exposure on his own. Thus, Pennington points to co-worker testimony to make the exposure connection.
T.I. 11288769, at A-7.
Id.
Id., at A-8 — A-9.
T.I. 11415338, Ex. A at 162.
Id., Ex. A at 168-169.
Pennington cites to the testimony and work history of Ronald J. Czajkowski to support his claims of exposure at Edgemoor. Mr. Czajkowski was an insulator for Delaware Insulation beginning in 1961. Between 1964 and 1975, he worked at several DPL sites, including Edgemoor, performing maintenance work on turbines which required the use of several asbestos-containing products. The specific location of this work within Edgemoor is not clear. Likewise, the record is silent as to whether Mr. Czajkowski knew Pennington or ever saw him (or other Steel Suppliers employees) on the job at Edgemoor.
T.I. 11415338, Ex. F at 4-7, 9-10; Ex. F, Job History at 16.
Pennington returned to Edgemoor from October 1968 to January 1970 to help in the construction of a new addition to an existing building. When he began working at the site, the workers had just begun to set the steel. By the time he left in January 1970, the last piece of steel had been erected, and his work had moved inside for revisions. Pennington believes (but cannot confirm) that "[asbestos] insulation was all over the place" because he worked around pipecoverers and insulators.
T.I. 11288769, at A-1 — A-2.
Id. at A-2.
Id. at A-2.
Id. at A-3.
Pennington offers the testimony and work history of William Schroeder, an employee of Delaware Insulation, to support his claim of asbestos exposure during his second project at Edgemoor. In his work as a turbine repairman, Mr. Schroeder recalls using several different asbestos-containing products, including pipe covering and cement. The record is silent with respect to the specific location of this work within the Edgemoor facility. And, again, the record does not indicate whether Mr. Schroeder knew Pennington or ever saw him (or other Raytheon employees) on the job at Edgemoor.
T.I. 11415338, Ex. C at 8, 9, Job History at 64.
Id., Ex. C at 54; Ex. C, Job History at 64.
From mid-July to August 1973, Pennington removed old steel and replaced it with new steel at Edgemoor in Unit 5. Pennington identified insulation in proximity to his work because he had to "squeez[e] in between the pipes" to weld steel, and the pipes were covered in both new and old insulation. He assumed the insulation contained asbestos. The record does not indicate the layout and/or size of Unit 5.
T.I. 11288769 at A-3; T.I. 11415338, Ex. A at 89.
T.I. 11415338, Ex. A at 168.
Id., Ex. A at 168-169.
Pennington also alleges that he was exposed to asbestos on this occasion because insulators were working right behind him installing insulation on the premises. "As soon as we got our steel up, the fitters come up and put their pipes up. If we were two floors up, they come in and start the pipes. They stayed right with us." He worked in dirty conditions with both new and old insulation covering pipes. He described his work in detail:
T.I. 11288769, at A-4.
T.I. 11415338, Ex. A at 167-168.
[W]e went up on one oven there . . . it is hard to say what was old [insulation] and what was new. It is so dirty in there and black in there. There was stuff up there that had been there for years. We were working there. And there again, pipes were all over the place. We are squeezing between pipes. In this one section there, they had the bigger pipe. There again, we had to wrap in blankets to get down between it because we were welding underneath of it. . . . What that was wrapped with was insulation. Whether it was asbestos or not, there again, I keep stressing,
Id., Ex. A at 167-68. It is important to note that Pennington's testimony in this regard remained consistent throughout his description of each of his three work encounters at Edgemoor: he could not say whether the materials he encountered contained asbestos. He relied upon the "co-worker" testimony to make that link.
Pennington relies upon the deposition testimony of three witnesses to support his claims that he was exposed to asbestos at the Edgemoor facility during his third tour at the facility: Morris Hitchens, Robert Ferris and Marvin Weaver. Mr. Hitchens was a pipe fitter at Edgemoor from mid-July 1971 to September 1973. Mr. Hitchens performed new construction somewhere in Unit 5 and used Garlock Gaskets, although he did not testify whether the Garlock Gaskets contained asbestos. Mr. Ferris worked at Edgemoor from mid-January 1973 to mid-August 1973 as an insulator for American Industrial Contracting, Inc. Mr. Weaver was an insulator for Delaware Insulation at Edgemoor from March 1973 to September 1973. The record does not indicate the specific location of either Mr. Ferris' or Mr. Weaver's work within the Edgemoor facility. Nor does it show that either man knew or saw Pennington (or other Steel Suppliers employees) at the facility.
Id., Ex. B, Job History at 43.
Id., Ex. B at 58, 93.
T.I. 11415338, Ex. D, Job History at 31, 59.
Id., Ex. E at 12, 13, 15, Job History at 60.
6. DPL's Knowledge of the Asbestos Hazard
Pennington relies on the testimony of Dr. Castleman, as discussed above, to demonstrate that DPL knew of the dangers of asbestos at the time he worked at Edgemoor. He relies upon the testimony of Dr. Eliasson and Dr. Hays, as discussed above, to show that the asbestos to which he was exposed while at Edgemoor circulated throughout the facility and was a danger to his health.
7. DPL's Knowledge That Contractors Were Ignorant of The Asbestos Hazard
According to Pennington, DPL selectively enforced its safety regulations, such as when to "tie off." Although safety directives came from Pennington's foreman, it was understood that the foreman was following DPL guidelines. Messrs. Schroeder and Czajkowski testified that DPL supervisors required the contractors' employees to comply with its safety rules. Messrs. Hitchens and Weaver testified that their employers held safety meetings three times a week at Edgemoor, occasionally attended by DPL employees, and asbestos was not discussed. Mr. Weaver sometimes wore a paper mask that Delaware Insulation gave him. According to Pennington, DPL would have known that its contractors were not aware of the dangers of asbestos because its safety managers were on site and knew that proper safety precautions were not being taken by the contractors' employees.
Id., Ex. A at 177.
Id.
Id., Ex. C at 51, 54; Ex. F at 26-27, 37-38.
Id., Ex. B at 149; Ex. E at 17.
T.I. 11415338, Ex. B at 149; Ex. E at 17.
Id., Ex. E at 26.
C. Robert Stymerski
Stymerski's only remaining claim against DuPont is a Section 343 safe workplace claim. This court previously granted DuPont's Motion for Summary Judgment as to the remainder of Stymerski's claims. Stymerski adopts and incorporates by reference the facts and exhibits cited in Pennington's case regarding DuPont's knowledge of the hazards of asbestos and its safety practices on its job sites.
See Wooleyhan I, at 18.
T.I. 11399234 at 3.
1. Stymerski's Exposure to Asbestos on DuPont Property
Stymerski alleges that he was exposed to asbestos at the DuPont Brandywine Building while he was working as an ironworker on a new construction project for Cornell Co., Inc. from November 1969 to January 1970. At the time Stymerski began his work on the building, the construction was "a quarter of the way done. It was up out of the ground[.]" Stymerski testified that he believes he was exposed to asbestos-containing materials from other trades working around him: "They had insulators there. They were mixing their mortar, or whatever you call it, to do their jobs. The pipe fitters were working the piping." Stymerski acknowledged that he did not know the composition of the products the other trades were using or the names of the products. He stated "I know they [insulators and pipe fitters] had, like, block insulation that they were putting on pipes and stuff like that. Of course, they would mix a dry bag, two bags of — I guess it is a cement they would seal them with."
T.I. 11399234, Ex. A, Job History at 10, 48.
Id., Ex. A at 48.
Id., Ex. A at 50.
Id., Ex. A at 51, 56-57.
T.I. 11289178 at A-269.
Stymerski did not know whether any of the products he saw the other trades using contained asbestos. His written job history, prepared for litigation, describes the asbestos-containing products he was exposed to, such as pipecovering, block, cement, fireproofing, blankets, and gaskets. Stymerski also mentioned that he personally handled fire blankets for two weeks to protect people working under him when he welded or burned steel. There is no indication as to where in the Brandywine Building Stymerski performed his work.
Id.
T.I. 11399234, Ex. A, Job History at 10.
T.I. 11289178, at A-266 — A-267.
Stymerski relies upon the testimony of Mr. Alvah King, a pipe fitter who worked at the Brandywine Building from mid-October 1969 to February 1970, to establish his exposure to asbestos products. Mr. King installed pipe throughout the elevator shaft of the twenty-two story building. He recalled other trades spraying asbestos fireproofing material on the beams through the sh afts for "about two months in the beginning when there was a lot of exposed be ams," meaning from mid-October to mid-December 1969. He personally used several different asbestos-containing products during the course of his work. Mr. King does not identify Stymerski as a co-worker or recall working with others in Stymerski's trade.
T.I. 11399234, Ex. T at 9-12.
Id., Ex. T at 53-54.
Id., Ex. T at 55.
Id., Ex. T, Job History at 56.
Id., Ex. T at 12.
2. Stymerski's Knowledge of the Asbestos Hazard
Stymerksi stated that he did not know asbestos was dangerous to his health, nor did he receive any warnings about asbestos, until the mid-1980's. His own union did not warn him until approximately 2001, when he was instructed to have his chest x-rayed to screen for asbestos-related diseases. Stymerski testified that while working at the Brandywine Building, "we kind of made our own safety rules," such as when to rope off a work area to protect others and when to wear a hard hat. His foreman also held daily safety meetings but did not raise the issues of dust or asbestos exposure. DuPont did not tell him to wear a respirator for protection from asbestos prior to the mid-1980's.
Id., Ex. S, Interrog. 22.
T.I. 11399234, Ex. A at 16-17.
Id., Ex. A at 53.
Id., Ex. A at 54.
Id., Ex. T at 106.
3. DuPont's Knowledge of the Asbestos Hazard
Stymerski relies upon Helm's evidence to demonstrate DuPont's knowledge of the dangers of asbestos at the time he worked at the DuPont Brandywine Building. He relies upon the testimony of Dr. Eliasson and Dr. Hays to show that the asbestos to which he was exposed while at the DuPont Brandywine Building was transient and a danger to his health.
4. DuPont's Knowledge That Contractors Were Ignorant of the Asbestos Hazard
Stymerski relies upon Helm's evidence regarding DuPont's safety practices to show that DuPont knew that Stymerski and his employer did not know of the dangers of asbestos.
D. Harry Toy
Toy has sued both DuPont and Chrysler on various theories of landowner liability, including active control, assumption of safety, and Section 343. He also initially sued Chrysler on a products liability theory claiming exposure to asbestos-containing products manufactured by Chrysler. Both DuPont and Chrysler have moved for summary judgment on all claims. Toy did not respond to DuPont's motion as it relates to his active control or assumption of safety responsibility claims. Therefore, he has waived his opposition to DuPont's motion as to those claims. He also did not respond to Chrysler's motion on his product liability claim and has, therefore, waived his opposition to Chrysler's motion on that claim as well.
T.I. 11391929.
See supra, n. 82.
Id. See T.I. 4803701, at 16; T.I. 11415517, at 14.
1. Toy's Exposure to Asbestos on DuPont Property
Toy was a sheet metal worker out of the Local 19 Sheet Metal Workers union and worked in that capacity on seven different occasions at several DuPont locations: (1) Hotel DuPont from December 1950 to August 1952 as an employee of J.E. Workman, Incorporated; (2) Hotel DuPont from August 1952 to mid-August 1953 as an employee of Glazar Bros., Inc. on the thirteenth floor; (3) DuPont Chestnut Run from October 1953 to January 1954 as an employee of I.D. Griffith, Inc.; (4) DuPont Experimental Station from mid-November to mid-December 1957 as an employee of Johns Manville International, Inc.;(5) DuPont Seaford from April 1962 to mid-March 1963 as an employee of I.D. Griffith, Inc.; (6) DuPont Seaford from May 1963 to January 1964 as an employee of I.D. Griffith, Inc.; and (7) DuPont Chestnut Run from April to July 1968 as an employee of I.D. Griffith, Inc. At each DuPont facility, Toy performed various tasks in proximity to other trades who were working with various products such as pipe covering, block, cement, gaskets, packing, and plaster. He could not say, however, whether any of these products contained asbestos. Indeed, as to all sites except DuPont Seaford, Toy testified that he did not know if he was exposed to asbestos during the course of his work. And, with the exception of his work at the DuPont Seaford facility, Toy did not identify "co-workers" who could place asbestos containing products in his vicinity at the various DuPont facilities where he worked.
T.I. 11391929, Ex. A, Job History at 25.
Id., Ex. A, Job History at 30.
Id., Ex. A, Job History at 35.
Id., Ex. A, Job History at 51.
Id., Ex. A, Job History at 77.
Id., Ex. A, Job History at 79.
T.I. 11391929, Ex. A, Job History at 98.
Id., Ex. A, Job History, passim. For purposes of this opinion, the Court has assumed (without deciding) that Toy's contracted-for work at either DuPont or Chrysler did not call for him to work directly with asbestos, but rather that he was exposed to asbestos, if it all, while working along side other trades who were working directly with asbestos. In other words, the Court assumes that Toy is a group A plaintiff.
See, e.g., T.I. 11289178, at A-275, A-277, A-278, A-281.
Id. at A-138, A-140, A-141, A-278.
With respect to Toy's wo rk at DuP ont's Se aford fa cility, the record reveals that during the relevant time frame this facility was comprised of approximately 618 acres. Toy worked around pipe fitters and insulators while he was in the sheet metal shop, which was adjacent to the pipe fitters' shop and across from the insulating shop. Toy testified "I was doing a couple things. For a while I was in the drafting room drawing, and then I was asked to go in the sheet metal shop as a superintendent . . . But when I was drawing, I was constantly out in the [pipe fitter, insulator, and metal] shops measuring things up that they needed to be manufactured." Toy testified, "I was working in that area, in all those areas, where the asbestos [was] being used" by pipe-coverers. He also testified that he was exposed to sweeping compounds because "I am in the plant while they are sweeping and cleaning it up . . . there is always somebody sweeping." Although he believes he was exposed to asbestos at the Seaford facility, Toy testified that he did not know whether the insulators and pipecoverers were using asbestos-containing products.
T.I. 11458573, Ex. E.
Id., Ex. A at 118, 120-121.
Id., Ex. A at 118.
T.I. 11289178, at A-279.
T.I. 11391929, Ex. A at 167.
T.I. 11289178, at A-279.
Toy relies upon the testimony of several co-worker witnesses who worked at the Seaford plant to verify that the products he was exposed to contained asbestos: Anthony Kotowski, Okey Vannoy, John W. Wilson, Jr., Fred Nichols, John V. Ryan, Jr., Lee Hyland, Marvin P. Weaver and Joseph W. Marowski. Mr. Kotowski was an insulator for Delaware Insulation at the DuPont Seaford plant from July 1963 to mid-April 1964. He worked in the spinning, boiler, and dowtherm rooms. With the exception of the distinct pink color of Careytemp insulation, he testified that he had no way of knowing which products he was using because someone would bring him the insulation after it was removed from its packing. Mr. Vannoy was a pipe fitter for B.F. Shaw at the Seaford plant from December 1959 to August 1965. He testified that he observed insulators on the site using and applying asbestos-containing products. Mr. Vannoy worked in several places throughout the plant. Mr. Wilson worked for Delaware Insulation as a helper when he was at the Seaford site from mid-October 1963 to mid-April 1964. His job was to carry materials from the shop to the warehouse and to score and cut block. He also worked in the spinning room. Mr. Wilson testified that the job site was "very dusty."
T.I. 11391929, Ex. U, Job History at 10; Ex. W at 208, Job History at 33; Ex. X, Job History at 4; Ex. Y, Job History at 10; Ex. Y, Job History at 9.
T.I. 11391929, Ex. S at 208.
Id., Ex. S at 208-209.
Id., Ex. S at 209-210.
Id., Ex. T, Job History at 31.
Id., Ex. T at 73.
Id., Ex. T at 74.
T.I. 11391929, Ex. U, Job History at 10.
Id., Ex. U at 15, 16.
Id., Ex. U at 16.
Id., Ex. U at 279-280.
Mr. Nichols was an electrician for Hatzel Buehler Inc. when he worked at the Seaford facility from June 1960 to November 1964. In his job history, Mr. Nichols identifies asbestos pipecovering, block, and cement manufactured by Armstrong and Johns-Manville as products he saw used at the Seaford plant. Mr. Ryan worked for Delaware Insulation at DuPont Seaford in November and December of 1963 and testified that he used all of the asbestos-containing products listed in his job history. Mr. Hyland worked for Delaware Insulation at DuPont Seaford from June 1963 to September 1966. Mr. Weaver worked for Delaware Insulation from May 1963 to August 1963 while at the Seaford site. Mr. Marowski also worked for Delaware Insulation while at the Seaford site from June 1963 to June 1965. He applied pipecovering to tanks, vessels and pipes and performed maintenance work. He described the packaging of Pabco's Caltemp insulation in detail and recalled that it was white in color and "a lot of dust would come out of it" when he sawed it. He also testified that he personally applied Forty-Eight insulating blankets to tanks with Unibestos products. Messrs. Nichols, Ryan, Hyland, Weaver and Marowski could not identify Toy (or his fellow Local 19 employees) as co-workers, nor did any of them indicate where within the Seaford facility they worked.
Id., Ex. V, Job History at 25.
Id.
T.I. 11391929, Ex. W, Job History at 33.
Id., Ex. X, Job History at 4.
Id., Ex. Y, Job History at 10.
Id., Ex. Z, Job History at 9.
Id.
Id., Ex. Y at 149-150.
T.I. 11391929, Ex. Y at 149-150.
2. Toy's Knowledge of the Asbestos Hazard
Toy testified that he attended safety meetings at the DuPont facilities that were run by his foreman. He did not recall the topics of asbestos or dust being discussed at these meetings. Altho ugh some of his co-worker witnesses recall seeing a safety movie at the DuPont sites, Toy does not recall seeing the movie and certainly doesn't recall seeing a movie that addressed the hazards of asbestos.
T.I. 11289178 at A-286.
Id.
Id. at A-287.
Later, in discussing his work at Chrysler, Toy again referenced safety meetings conducted by his foreman every Monday morning. Those meetings concerned "ladders and other safety stuff." Toy did not recall whether asbestos was discussed at the meetings. When pressed on the issue, Toy testified: "They didn't even know what . . . asbestos was back then."
T.I. 11289243, HTD at 273.
T.I. 14077873, Ex. A at 273.
Id., Ex. A at 260.
3. DuPont's Knowledge of the Asbestos Hazard
Toy adopts the facts and exhibits cited in Helm's motion regarding DuPont's knowledge of the hazards of asbestos.
T.I. 11391929 at 3.
4. DuPont's Knowledge That Contractors Were Ignorant of The Asbestos Hazard
Toy relies upon Helm's evidence regarding DuPont's safety practices to show that DuPont knew that Toy and his employers did not know of the dangers of asbestos. Toy confirms that his foreman ran the safety meetings at the DuPont sites, but with some direction from DuPont. Mr. Vannoy also recalled weekly safety meeting at the Seaford plant, but did not recall discussions about asbestos. Mr. Nichols testified that his employer did not give him a mask when he was working at DuPont, and that he never asked for one. Mr. Hyland recalled an "indoctrination period" where "there was a movie, a lecture, a pamphlet that was handed out to you that you were expected to read and sign. So you clearly understood all the safety requirements of the DuPont job." The movie was not about asbestos, but a general safety movie. Mr. Hyland did not recall anything in the safety pamphlet he read about air masks or asbestos. He also recalled weekly safety meetings held by DuPont personnel. Asbestos was never discussed at these meetings.
Id.
T.I. 11289178 at A-286.
T.I. 11391929, Ex. T at 36-37.
Id., Ex. V at 68-69.
Id., Ex. X at 377.
Id., Ex. X at 378.
Id., Ex. X at 379.
Id., Ex. X at 377.
T.I. 11391929, Ex. X at 378.
5 . Toy's Exposure to Asbestos on Chrysler Property
Toy worked at the Chrysler Newark plant ("Newark plant") from November 1956 to May 1957, mid-June to September 1957, and September and October 1957 as a sheet metal worker. He was employed by Peter Dalton, Inc., J.V. Dean Company, and Triangle Sheet Metal Works, Inc., respectively. He did renovation work from November 1956 to May 1957 and maintenance work from mid-June to September 1957 and again in September and October 1957. He ran ductwork, installed spray booth, and installed ovens. He was present when pipes were torn out and new pipes were installed. When he installed ductwork, he believes he was exposed to asbestos left behind by the pipe fitters and the insulators working above him. During his second time at the Newark plant, Toy testified that he put in a new oven for cars and spray booths, but did not tear out ductwork because the conversion of the plant from tanks to cars had already been completed. He did not personally work with asbestos, but he believes he was exposed to asbestos because "there was pipe work there and pipe covering there, and that's why I figured I was exposed to it." On his third tour at the Newark plant, Toy installed large ductwork and believes he was exposed to asbestos working adjacent to pipecovering. He was asked at his deposition, "Do you have a specific recollection of working with or being around any material that contained asbestos when you worked at the Chrysler Plant?" Toy answered, "No, I can't say — I can't say I do."
T.I. 14077873, Ex. A, Job History at 44, 48, 49.
Id.
Id.
Id., Ex. A at 88.
Id.
Id., Ex. A at 89.
T.I. 14077873, Ex. A at 90-91.
Id., Ex. A at 91.
Id., Ex. A at 90-92.
T.I. 11289243, Ex. E at 255.
Id.
Toy relies upon the prior testimony and job histories of several co-worker witnesses to support his claim of exposure to asbestos at the Newark plant: James Short, Jack Page, Edward Wainwright, Raymond Townsend, Sr., John Greer, and Matthew Taylor. Mr. Short worked with asbestos at the Newark plant from November 1956 to mid-April 1957 for Howard P. Foley Co. as a pipe fitter. Mr. Page was a painter for Metro Industrial Painting Corp. at the Newark plant from mid-March to November 1957. He recalled seeing cement and Kaylo products being used by other tradesmen at the site. Mr. Wainwright worked with asbestos at the Newark plant from December 1956 to mid-January 1957 as a pipe fitter for Howard P. Foley Co. Mr. Townsend did welding and fitting work at the Newark plant from January to March 1957 as an employee of Corbits Inc., and from April to July 1957 as an employee of Batesons Inc. He worked inside the plant near insulators in the process of converting the plant from an aircraft plant into an automobile production plant. Mr. Greer was a painter for Metro Industrial Painting Corp. when he was at the Newark plant from October 1956 to March 1957 and again from April to May 1957. Mr. Greer's job history states that he worked around insulators and other trades while the facility was converted to an automobile production plant. Mr. Greer testified that insulators created dust when they cut, mixed and applied asbestos insulation. He, and other workers in his vicinity, would inhale the dust as it was released. Mr. Taylor was a millwright at Chrysler from June 1952 to January 1989. He worked in all areas of the Newark plant doing "everything in steel that a carpenter does in wood." He occasionally assisted in the installation of asbestos insulation. None of Toy's co-worker witnesses give any indication of the specific location of their work within the Newark plant.
T.I. 11415517, Ex. B, Job History at 47.
Id., Ex. C, Job History at 9.
Id., Ex. C at 57.
Id., Ex. D, Job History at 25.
Id., Ex. E, Job History at 21-22.
Id.
T.I. 11415517, Ex. F, Job History at 15, 17.
Id.
Id., Ex. F at 125.
Id., Ex. F at 125-126.
Id., Ex G at 3.
Id., Ex. G at 4.
T.I. 11415517, Ex. G at 5.
6. Chrysler's Knowledge of the Asbestos Hazard
Toy alleges that Chrysler had both constructive and actual knowledge of the dangers of asbestos at the times he worked at the Newark plant because: (1) Chrysler subscribed to the IHF Digests; (2) Dr. Castleman will testify that "it was an established fact in the medical and scientific literature that occupational exposure to asbestos caused fatal disease in asbestos product users[;]" and (3) Chrysler knew that asbestos inhalation in large quantities was a health hazard as early as the 1930's. Toy also points to Chrysler's answers to interrogatories as admissions of Chrysler's knowledge that asbestos was hazardous: "[s]ince 1925, Chrysler has manufactured automobiles that include asbestos-containing products, in some form or another;" and "[i]n the 1930's Chrysler recognized that raw asbestos fiber inhalation in large quantities could cause or contribute to pulmonary disease." Finally, Toy notes that Mr. Alva Rush, a senior Chrysler corporate representative, attended the Seventh Saranac Symposium from September 22-26, 1952. Some of the topics discussed at the symposium included "Occupational Pulmonary Cancer," "Pulmonary Cancer in Asbestos Workers," "Carcinoma in the Lungs of Asbestos Weavers," "Pulmonary Function Studies in Men Exposed for 10 or More Years to Inhalation of Asbestos Fibers," and "Compensation for Disability and Death Resulting from the Pneumoconisios."
Id. at 6-9. The Court notes that the relevance of Toy's reference to Chrysler's membership in IHF i s di min ish ed b y the fact that Ch rysler di d not jo in t hat orga niz ati on u nti l af ter Toy had worked at Chrysler his last time. Chrysler was an IHF member from 1965 to 1970 and from 1974 to 1978; Toy worked at the Chrysler Newark plant in 1956 and 1957. See Id., Ex. A, Job History at 44, 48, 49; Exs. J, K, L. The references to Dr. Castleman's expected testimony are the same as those relied upon by Helm and summarized above, as are Toy's references to the expert testimony on "fiber drift."
T.I. 11415517, Ex. K, No. 2.
Id., Ex. O, B36.
Id., Ex. S.
7. Chrysler's Knowledge That Contractors Were Ignorant of the Asbestos Hazard
Toy testified that during the two times he worked at Chrysler, his employer's foreman directed and supervised his daily work. His job related instructions came solely from his foreman, not Chrysler personnel. He also brought his own hand tools to the job and his employer supplied safety equipment, power tools, and materials — no one else supplied him with any tools. Toy regularly attended safety meetings that were led by his foreman. He did not have any contact with Chrysler employees. If a Chrysler employee attempted to give Toy instructions about how he should perform his work, Toy would tell that person to speak with his foreman. Nevertheless, according to Toy, Chrysler knew or should have known that independent contractors working at its plant were not taking adequate safety precautions to protect them from asbestos exposure. Thus, Chrysler must have known that the contractors were not aware of the asbestos hazard.
T.I. 4348997, Ex B ("HTD") at 271.
Id., HTD at 277.
Id., HTD at 271-272.
Id., HTD at 273.
Id., HTD at 274.
Id., HTD at 277. To support his argument that Chrysler controlled the work site, Toy refers to the testimony of Chrysler employee, Herbert Rissel. Mr. Rissel began working at the Chrysler plant in 1969. Toy worked at the Chrysler Newark plant in 1956 and 1957. The Court will not summarize Mr. Rissell's deposition testimony because there is no basis in the record to conclude that any of the measures Chrysler may have taken to control the work area after 1969 were in place when Toy worked at the Chrysler Newark plant more than ten years earlier.
III.
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, "but not to decide such issues." Summary judgment will be granted if, after viewing the record in a light most favorable to a non-moving party, 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, then summary judgment will not be granted.
Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973).
Merrill, 606 A.2d at 99-100; Dorr-Oliver, 312 A.2d at 325.
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). See also Cook v. City of Harrington, 1990 WL 35244, at *3 (Del. Su per. Ct. Feb . 22, 1990) (citing Ebersole, 180 A.2d at 467) ("Summary judgment will not be granted under any circumstances when the record indicates . . . that it is desirable to inquire more throughly into the facts in order to clarify the application of law to the circumstances.").
The moving party bears the initial burden of demonstrating that the undisputed facts support his claims or defenses. 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 or, in the case of a defense motion, that the defense(s) raised are legally deficient. In deciding whether the non-moving party has satisfied its burden, the Court asks the same question it asks when considering a motion for judgment during trial: "whether a reasonable juror could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for 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).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (internal citations omitted) (emphasis in original).
Id.
As stated, when reviewing the record, the Court must view the evidence in the light most favorable to the non-moving party. In this regard, the Court "will accept as established all undisputed factual assertions, made by either party, and accept the non-movant's version of any disputed facts. From those accepted facts the court will draw all rational inferences in favor of the non-moving party." The Court must "take the plausible inference most favorable to the nonmoving party" when "a fact can give rise to multiple plausible inferences." In other words, summary judgment is inappropriate if an undisputed fact would prompt reasonable people to draw different inferences.
See United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. 1997); Brzoska, 668 A.2d at 1364.
Merrill, 606 A.2d at 99-100 (internal citations omitted).
Penn Supermarkets, Inc. v. New Castle Shopping Inc., 2004 WL 2633302, at *4 (Del.Ch. 2004) (denying defendant's motion for summary judgment where question of fact was subject to competing, reasonable inferences).
Motorola, Inc. v. Amkor Tech., Inc., 849 A.2d 931, 936 (Del. 2004).
The presumption afforded the non-moving party in the summary judgment analysis is not absolute. The Court must decline to draw an inference for the non-moving party if the record is devoid of facts upon which the inference reasonably can be based. "Where there is no precedent fact, there can be no inference; an inference cannot flow from the nonexistence of a fact, or from a complete absence of evidence as to the particular fact." Nor can "[a]n inference be based on surmise, speculation, conjecture, or guess, or on imagination or supposition."
See Dyer v. Knue, 186 Cal. Rptr. 2d 348, 359 (Cal. Dist. Ct. App. 1960) (stating "It is axiomatic that an inference may not be based on suspicion alone, or imagination, speculation, supposition, surmise, conjecture, or guesswork."); Strnod v. Abadie, 181 Cal. Rptr. 2d 737, 740 (Cal.Dist.Ct.App. 1960)("A legal inference cannot flow from the nonexistence of a fact; it can be drawn only from a fact actually established.").
32A C.J.S. Evidence § 1341 at 763 (1996).
Id.
IV.
As the asbestos litigation enters its fourth decade, plaintiffs who allege they have contracted disease as a result of exposure to asbestos have tested various theories of liability against several classes of defendants, including producers of asbestos, manufacturers of asbestos products, suppliers of asbestos products, installers of asbestos products, and landowners on whose property asbestos was located. With respect to landowners, the theories fall under two broad categories. The first includes claims that arise from the landowner's status as an employer who hires independent contractors to perform services on his property. These claims derive from the common law that imposes a duty upon the landowner to protect the employees of an independent contractor working on his property, in certain limited and well-defined instances, such as when the landowner takes an active role in some aspect of the work being performed on his property.The second category of claims derive from the landowner's status as an owner or possessor of land who has opened his property to business invitees. These claims rely upon common law premises liability principles and do not focus on the landowner's role in the work being performed, but rather on the landowner's role in maintaining his property in a manner that will provide a safe workplace. Thus, in these instances, a plaintiff need not prove that the landowner controlled the work in order to pursue a claim. Conversely, if the plaintiff is able to establish landowner control over the work or the workplace, he need not attempt to prove the rather onerous elements of the safe workplace doctrine (as discussed below). It is not unusual, therefore, for a plaintiff to allege both theories as alternative bases for recovery.
A. Section 343 — The Safe Workplace Doctrine
Although the group A Plaintiffs sub judice have advanced several theories of liability against these landowner Defendants, their showcase claim is that the Defendants failed to provide a safe workplace for contractors to perform work on their properties. Until very recently, the safe workplace doctrine was not a feature of the landowner liability landscape in the Delaware asbestos litigation. In April, 2006, the landscape changed when the Supreme Court of Delaware recognized that Section 343 offered a viable basis upon which a landowner could be held liable to the employee of an independent contractor for failing to provide a safe work place, even when the landowner did not control the work being performed on his property. While not necessarily a departure from prior Delaware law, Wooleyhan II marked an expansion of landowner liability in the asbestos litigation.
See In re Asbestos Litig. (Wooleyhan), CA. No. 00c-08-028, 01C-06-151, 01C-11-239, 02C-03-194, 01C-10-173, 02C-01-041 at 18 (Del.Super.Ct. Feb. 15, 2005)( "Wooleyhan I") (not available from on line services), aff'd in part, rev'd in part, In re Asbestos Litig. (Wooleyhan), 2006 WL 1214980 (Del. Apr. 12, 2006)(" Wooleyhan II").
Compare Handler v. Tlapechco, 901 A.2d 737, 743 (Del. 2006) (discussing typical landowner liability claims) with Wooleyhan II, 2006 WL 1214980, at *2 (recognizing the safe workplace doctrine as a viable basis upon which to impose landowner liability in the asbestos context).
In many instances, basic principles of premises liability will come into play when analyzing the viability of a claim brought by the employee of an independent contractor against a landowner for exposure to asbesto s on the lan downer's proper ty. For instance, it is appropriate to consider the employee's status on the land vis a vis the landowner (e.g. invitee, licensee, trespasser, etc.) at the time of injury in order to determine the scope of the landowner's duty to the employee. But the contractor/landowner scenario will also present substantial variations from the typical premises liability case. When considering the claim of a worker injured on a defendant's property because of hazards created by other contractors, the law recognizes that the injured worker is a more sophisticated invitee than, for instance, the customer who enters the supermarket to shop for groceries. Contractors are hired to perform a job and they are expected to take steps to protect themselves and their employees from known hazards of the job, and known hazards of the job site, without direction from the landowner.
The parties do not dispute that the employee of an independent contractor hired to work on the landowner's property is an invitee for purposes of the safe workplace doctrine. See Croom v. Pressley, 1994 WL 466013, at *3 (Del.Super.Ct. July 29, 1994)("A business invitee is one who enters another's land as a result of an implied invitation for the mutual benefit of both him and the landowner.").
See Kinsman v. Unocal Corp., 123 P.3d 931, 939-40 (Cal. 2005).
In the workplace dynamic, the common law recognizes that when assessing landowner liability, attention must be paid not only to what the landowner and the contractor knew of the hazards on the job, but also to what the landowner knew or didn't know of the contractor's appreciation of the hazards. Only when the landowner knows or should know that the contractor and his employees are ignorant of the hazards will the landowner owe a duty to warn the contractor or his employees of the hazards. It is against this backdrop that Delaware's version of the so-called "safe workplace doctrine" has emerged in the asbestos litigation.
Id.
Section 343, entitled Dangerous Conditions Known To or Discoverable By Possessor, is the codification of the safe workplace doctrine. It provides:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.
RESTATEMENT (SECOND) OF TORTS § 343 (1965).
Delaware law has long recognized that Section 343 imposes a duty upon landowners to ensure their property is maintained in a reasonably safe condition for business invitees and to warn of any latent dangers present on the land at the time the invitee enters the property. The duty is imposed when the landowner's knowledge of the danger on his land is "superior" to the invitee's knowledge. Indeed, to prevail under Section 343, plaintiff must prove that the landowner knew or should have known that the invitee did not know of the danger. Wooleyhan II adopted Section 343 in the asbestos context and added some additional layers to the analysis. Citing a California decision, Kinsman v. Unocal Corporation (" Kinsman"), the Court set forth three elements a plaintiff must prove to make a prima facie case under Section 343 in Delaware:
Niblett v. Pennsylvania R.R. Co., 158 A.2d 580, 582 (Del.Super.Ct. 1960).
Id.
Id.
123 P.3d 931 (Cal. 2005).
(1) the Landowner knew, or reasonably should have known, of a concealed, previously existing hazardous condition on its premises; (2) the Landowner knew, or reasonably should have known that the contractor and its employees did not know, and could not reasonably have been expected to know, of the hazardous condition; and (3) the Landowner nonetheless failed to warn the contractor or to take other appropriate action to prevent the injury.
Wooleyhan II, 2006 WL 1214980, at * 1 (emphasis supplied).
The highlighted language reflects proof not required in Section 343. Indeed, one commentator has suggested that, in the asbestos context, Kinsman, upon which Wooleyhan II relies, actually triggers six distinct inquiries (arguably three more than what is called for in Section 343):
1. Did the facility owner know, or should it have known, that the particular materials on the premises that allegedly caused the plaintiff's injury contained asbestos?
2. If so, was the facility owner aware at the time, or should it have been aware at the time, of the dangers of asbestos?
If the answer is no to either of these questions, the analysis ends and the facility owner escapes liability. If the answer is yes to both questions, the analysis continues:
3. Did the independent contractor know, or should it have known, that the particular materials on the premises that allegedly caused the plaintiff's injury contained asbestos?
4. If so, was the independent contractor aware at the time, or should it have been aware at the time, of the dangers of asbestos?
If the answer is yes to both these inquiries, the analysis concludes and no liability attaches to the facility owner. If the answer is no to either question, the analysis continues:
5. Did the facility owner know, or should it have known, that the independent contractor was unaware of, or could not have reasonably learned about, the hazard posed by the asbestos-containing materials on the premises?
If the answer is no to this question, the analysis ends and the premises owner is not liable for the plaintiff's injuries. If the answer is yes, the analysis continues:
6. Did the facility owner properly inform the contractor about the hazard posed by the asbestos-containing materials on the premises?
Martens, Practice Tips: The Expanded Liability Analysis In Premises Asbestos Cases, 28 Los Angeles Lawyer 20, 22 (Aug. 2006).
This six-part inquiry offers a clear analytical road map by which to navigate through the Kinsman/Wooleyhan II elements. The Court will follow it, with two additions. First, as a predicate to any showing of landowner liability, the asbestos plaintiff must prove that he was exposed to asbestos while on the landowner's property in a manner that caused him injury. This inquiry will be added to the analysis. Second, Wooleyhan II requires that initially the Court, and later the fact-finder if appropriate, inquire whether the asbestos that allegedly injured the plaintiff was "a concealed, preexisting hazardous condition on the [landowner's] premises?" Because this was a point of emphasis in the parties' arguments here, the Court will add this separate inquiry to the analysis, even though it may well be implicated by other aspects of the six-part analysis recited above.
Wooleyhan II, 2006 WL 1214980, at * 2.
1. Did The Defendants Know of Asbestos on Their Properties?
None of the Defendants have suggested that they did not know that asbestos was being used on their properties. Indeed, as to Helm and Stymerski, this Court already has determined that they have demonstrated genuine issues of fact both as to the Defendants' knowledge of asbestos on their properties and their knowledge that asbestos was dangerous. This conclusion was affirmed in Wooleyhan II and is the law of the case. In these cases, the Defendants have chosen to draw the battle lines elsewhere; whether the Defendants knew asbestos was on their properties is not in play here.
See T.I. 14882236, In re Asbestos Litig., C.A. Nos: 01C-11-239 (ASB); 02C-03-219 (ASB); 01C-06-151 (ASB); 02C-08-093 (ASB); Slights J., (Del.Super.Ct. Nov. 1, 2006) (Motion Tr.)18:6-8 ("Transcript") (Defense counsel stated: "[T]hat's not the basis of our motion . . . [t]he landowner's lack of knowledge is irrelevant to what we're talking about today.").
Wooleyhan I, Mem. Op. at 18.
See Wooleyhan II, 2006 WL 1214980 at *2, n. 9 ("The Superior Court concluded, and we do not question, that there are genuine issues of material fact with respect to the Landowners' knowledge and the employees' knowledge about the hazards of asbestos."). See also Hudak v. Procek, 806 A.2d 140, 154 (Del. 2002)("When facts have remained constant throughout the subsequent course of the same litigation, the trial court's previous rulings applying legal principles to a constant set of facts generally establish the 'law of the case.'") (citation omitted).
a. Have the Plaintiffs Demonstrated Exposure?
Implicit in the first inquiry is the notion that exposure to asbestos on the landowner's property caused the plaintiff's injury. In Delaware, "in order to survive summary judgment," the plaintiff:
must offer evidence that at the time [the defendant's asbestos product] was present on the site he was in the area where [the product] was used, near that area, walked past that area, or was in a building adjacent to where [the product] was used if open windows or doors would allow asbestos fibers to be carried to the area where the plaintiff was working. . . . Implicit within this product nexus standard is the requirement that the particular defendant's product to which the plaintiff alleges exposure must be susceptible to releasing fibers which are capable of ingestion or respiration into the plaintiff's body.
Merganthaler v. Asbestos Corp. of America, 1988 WL 116405, at *1-2 (Del.Super.Ct. Oct. 25, 1988) (citations omitted).
This standard, known as the "product nexus standard," is meant to ensure that the plaintiff presents "a factual connection in space and time between a particular plaintiff and a particular defendant's product." In the landowner liability context, the identity of a particular defendant's product is not required in the plaintiff's prima facie case against the landowner. The "factual connection" that must be made is the exposure of a particular plaintiff to some asbestos-containing product in friable form at a particular place and time while the plaintiff was on the landowner's property.
Id.
See Farrall v. A.C. S., Inc., 1988 WL 55309, at *2 (Del.Super.Ct. May 11, 1988) (finding that the product nexus approach "should be followed in determining whether the owner or one in control of the premises should be held liable to a business invitee for a noxious or toxic condition existing in that area."). Obviously, the identity of the product manufacturer or distributor may become relevant to the landowner's cross claims.
In the cases sub judice, none of the Plaintiffs could state as fact that they were exposed to asbestos-containing materials on the Defendants' properties. Instead, they relied upon co-workers — other employees who worked on the same property at the same time as the Plaintiffs (whether known to them or not) — to piece together circumstantial evidence that would allow an inference of exposure. The Defendants have challenged this co-worker evidence on several grounds. First, they contend that the puzzle pieces don't fit, i.e., the co-workers cannot place the Plaintiffs in adequate temporal or spacial proximity to asbestos to allow an inference of exposure. Second, they argue that the form of the testimony of the co-workers is suspect, either because it is unsworn or because it was not taken in a manner that would allow its admission at trial. Finally, Defendants challenge the use of co-workers to defeat summary judgment when the witnesses were not identified in discovery in this case. At oral argument, the parties urged the Court to provide guidance with respect to the use of co-worker evidence to establish exposure in a landowner liability case. The Court will endeavor to do so even though, as best as the Court can discern, that guidance already exists.
See, e.g., In re Asbestos Litig: Carter Trial Group. C.A. No . 91C-07-0 61, at 2, Conaway, M. (Sept. 4, 1992) (REPORT) (discussing the means by which the exposure case is pieced together like a "jigsaw puzzle.").
To defeat summary judgment in a case where the plaintiff himself is not able to establish exposure, a co-worker must be able to place the plaintiff in the vicinity of a specific location on the defendant's property, at a specific time, where friable asbestos is present. To do so, there must be some meaningful intersection between the plaintiff and the co-worker on the property, both in place and time. Temporal proximity likely will be easier to determine from the record. The plaintiff will testify regarding the time frame he worked on the defendant's property and the co-worker will do the same. In most instances, overlap will be obvious. Establishing spacial proximity will pose more of a challenge to the plaintiff. The more confined the property, the easier it will be for the co-worker to meet the spacial proximity test. In larger facilities, it is incumbent upon the plaintiff to describe the location of his own work within the facility with sufficient detail to allow the Court to compare that description to the description of the location of the asbestos offered by the co-worker in order to determine if an inference of exposure is reasonable.
See Merganthaler, 1988 WL 116405 at *1-2; Farrall, 1988 WL 167320 at *2.
In re Asbestos Litig: Carter Trial Group. C.A. No. 91C-07-061, at 2, Conaway, M. (Sept. 4, 1992) (REPORT).
Id.
The facilities at issue in these motions are, by any measure, large. For instance, DuPont Louviers is comprised of multiple buildings; DuPont Newport is comprised of 143 acres; the Hotel DuPont has multiple floors as does the DuPont Brandywine Building; DuPont Chestnut Run is comprised of 235 acres; the Experimental Station 136 acres; and DuPont Seaford 618 acres. The record is devoid of evidence describing the physical plant of either DPL's or Chrysler's facilities. To meet the spacial proximity test in order to establish an inference of exposure, each plaintiff was obliged to do more than place his co-worker witnesses in the defendants' facilities at the same time the plaintiff was there. The plaintiff must present evidence that would allow an inference that he was in close enough proximity to a specific location within the defendant's facility at a time when the co-worker can confirm that friable asbestos was present such that the plaintiff could have been exposed to that asbestos (even if by "fiber drift").
See T.I. 1145873, Ex. E.
See Clark v. A. C. S., Inc., C.A. No. 82C-DE-26 ASB, Poppiti, J. (Del.Super.Ct. Sept. 3, 1985) (ORDER at 5) (noting that in a large facility, plaintiff must do more than simply place asbestos on the site in order to establish exposure).
In the cases before the Court, the puzzle pieces created by the Plaintiffs and their co-worker witnesses do not fit and, consequently, do not create an image of the Plaintiffs in spacial proximity to friable asbestos on the Defendants' properties. Helm does not state where within Louviers or the Nemours Building he worked when he was allegedly exposed to asbestos-containing products, and his "co-workers" (Volk and Rash) do not indicate where they worked either. At Newport, Helm worked "all over" and it is unclear if working "all over" included the blue and red rooms identified by Mr. Nolan. Pennington did not know if he was exposed to asbestos at the Hotel DuPont and his "co-workers" do not place themselves in proximity to Pennington or workers in his trade. Likewise, Stymerski did not know if the products he saw being used at the DuPont Brandywine Building contained asbestos and the record does not indicate where in the building he and Mr. King worked.
The record does not indicate where Pennington worked at DPL Edgemoor for his first two tours, nor can the Court piece together where Mr. Czajkowski and Mr. Schroeder worked in relation to Pennington. During his third tour at DPL Edgemoor, Pennington testified he worked in Unit 5, just like Mr. Hitchens, but there is no indication as to the size and layout of Unit 5. While Mr. Hitchens' testimony may place asbestos-containing products in Unit 5, there is no basis in the record to conclude that those products were anywhere near Pennington.
With respect to Toy's work at DuPont facilities, Toy did not identify co-workers except at the Seaford plant. At Seaford, Toy did not indicate where he worked within the large plant. While Mr. Kotowski and Mr. Wilson identified specific rooms where they worked with asbestos-containing products, the Court has no information from which to infer that Toy worked in those rooms. The same deficiencies plague Toy's claim of exposure at Chrysler's Newark facilities because neither Toy nor his co-worker witnesses specify where in the plant they performed their work.
In addition to the substance of the co-worker testimony, the Court must look at the circumstances pursuant to which the testimony was recorded. When considering a motion for summary judgment, and responses thereto, the Court must be mindful that the summary judgment record cannot be comprised of inadmissible evidence. Absent extraordinary circumstances, unsworn co-worker statements are inadmissible hearsa y. Prior sworn testimony of a co-worker will be admissible only if the defendant against whom the testimony is offered "had an opportunity . . . to develop the testimony by direct, cross or redirect examination," or, if recorded by prior deposition, only if the party "was present or represented at the taking of the deposition or had reasonable notice thereof." Of course, if the co-worker is available for deposition, a sworn affidavit that complies with Superior Court Civil Rule 56 will work to inject facts into the record.
Hills Stores Co. v. Bozic, 769 A.2d 88, 102 (Del.Ch. 2000)("The non-moving party must submit admissible evidence sufficient to generate a factual issue for trial or suffer an adverse judgment.").
See, e.g., D.R.E. 807.
D.R.E. 804(b)(1) (assuming witness is "unavailable.").
SUPER. CT . CIV. R. 32(a).
Finally, the Court notes that it has already determined that co-worker, or "product nexus" witnesses, must be properly identified in discovery before they may be used to defeat a motion for summary judgment or testify at trial. It is unclear whether this was done with respect to the co-worker witnesses upon whom Plaintiffs rely here.
Stigliano v. Nosroc Corp., 2006 WL 3492209 (Del.Super.Ct. Oct. 26, 2006).
In this case, four Plaintiffs collectively have identified more than a dozen co-worker witnesses to establish exposure at ten different facilities. The quality and likely admissibility of the co-worker testimony varies in substantial degree. While the Court has grave doubts that these co-worker witnesses satisfy the standards governing the use of such testimony (as reviewed above), the Court declines to decide that issue here because the motions as presented call for the resolution of other, more pressing issues further down the analytical stream. Suffice it say, the Court will consider the adequacy of the Plaintiffs' exposure evidence later in these proceedings if called upon to do so. For now, the Court will assume that Plaintiffs have presented sufficient evidence to create an inference of exposure to friable asbestos on the landowner's property.
b. Have the Plaintiffs Established a Concealed, Previously Existing Hazardous Condition on Defendants' Premises?
As stated, Wooleyhan II requires plaintiffs to show not only that the landowner knew asbestos was hazardous, but also that asbestos was a "concealed, previously existing, [and] hazardous" condition on the landowner's premises. The Supreme Court did not define the term "concealed, previously existing condition" but did observe that "[c]laims of this nature [based on Section 343] may present the perplexing question of when a latent hazardous condition on the land can fairly be characterized as 'preexisting.'" Defendants argue that the term "previously existing" must be measured from the t ime the landowner cedes control of the property to the independent contractor. According to the Defendants, if the asbestos arrived on the property after the landowner cedes control, then the presence of asbestos cannot, as a matter of law, be "previously existing" at the time the plaintiff is exposed to it. They argue that any other interpretation of "previously existing" would require the landowner "to inspect and to know what every contractor is doing that it hires," even when it is not in control of the work or the work site.
Id.
Wooleyhan II, 2006 WL 1214980, at *2.
T.I. 14882236, Transcript 39:6-10.
Id. 97:8-13.
In response, Plaintiffs argue that both Wooleyhan I and Wooleyhan II reject the notion that landowner control is analytically relevant under Section 343. Instead, Plaintiffs posit that "previously existing" means "[the hazard] has to be in existence before it can cause the injury and before there's a duty to warn about it." According to Plaintiffs, asbestos fibers are a "previously existing" condition if they are present on the property before the plaintiff "takes in that first breath of asbestos-contaminated dust," regardless of other circumstances.
Id. 63:7-9.
Id. 85:11-14.
Id. 69:15-17.
Both parties have focused only on the term "previously existing" without regard to the fact that Wooleyhan II also included the term "conceded" to further describe the hazard that must be shown to exist on the property. By limiting their focus, the parties have not given full credit to this aspect of the Supreme Court's decision.
Defendants have staked their argument on the notion of landowner control — that a condition is not preexisting if the landowner does not control the activities on his property at the time of the invitee's entry on the property. This argument is strikingly similar to the landowners' arguments in Wooleyhan I and Wooleyhan II. In Wooleyhan I, the landowners argued that a landowner cannot be charged with knowledge of a condition created on his land if he does not control the activities on his land at the time the condition arose. This court explained that a duty is imposed upon a landowner to warn invitees of a latent danger if the landowner knows of the danger "without reference to who is controlling day-to-day operations." The court reasoned that Section 343 liability depends on the landowner's "awareness of a hidden danger and the other party's lack of such awareness," not the degree of landowner control over the work.
Wooleyhan I, Mem. Op. at 3.
Id. at 16.
Id.
The landowners appealed this court's denial of summary judgment and argued, inter alia, that "they may not be held liable for the acts of their contractors unless they are shown to have exercised sufficient control over those contractor's activities." The Supreme Court rejected this argument:
Wooleyhan II, 2006 WL 1214980, at *2.
That is not a correct statement of the law. Although a landowner that exercises control over the means and methods of its contractor's work may expose itself to liability for that reason, the absence of control does not necessarily defeat liability under § 343. Even where a latent, preexisting hazard ous con ditio n is cre ated by o ne independent contractor performing work on the land, the landowner who knows about the latent condition may not avoid legal responsibility for injuries caused to employees of other contractors working on its premises, if the landowner knows that the other contractors and their employees are unaware of the risk created by the latent condition, and fails to give an appropriate warning of that risk or to take other appropriate action.
Id. (emphasis in original).
Although the Supreme Court did not specifically address Defendant's control argument as it applies to the term "previously existing," it stated very clearly that the active control doctrine and the safe workplace doctrine are separate theories of liability, and that control has no place in the determination of whether the landowner provided a safe workplace. The respective knowledge of the parties, not control of the work or the premises, will animate the Section 343 analysis.
Id.
The conclusion that landowner control is not relevant under Section 343 is consistent with traditional notions of tort law. As this court is prone to say, the existence of a duty is dependent upon the nature of the relationship between the parties. Early cases focused heavily on affirmative acts and misconduct of a party, otherwise known as misfeasance, to determine whether that party owed a duty of care to another. The relationship between the parties in a case involving misfeasance is characterized by the harm that may reasonably be expected to result from the defendant 's conduct. It is a far more difficult task to determine whether the requisite legal relationship exists to trigger a duty when the defendant simply fails to act. Nonfeasance is "passive inaction or a failure to take steps to protect [others] from harm." Courts have held defendants to an affirmative duty to act when there is "some definite relation between the parties, of such a character that social policy justifies the imposition of a duty to act." The relationship often arises when the plaintiff can reasonably expect protection from injury because the defendant stands to gain an economic or other benefit from the plaintiff and the defendant has the power to protect the plaintiff from harm. "The largest single group upon whom the duty of affirmative conduct has been imposed are the owners and occupiers of land[.]"
See Kuczynski v. McLaughlin, 834 A.2d 150, 155 (Del.Super.Ct. 2003).
W. PAGE KEETON, PROSSER KEETON ON TO R T S, § 53 (5th ed. 1984).
Id.
Id.
Id.
Id.
Id.
The active control theory embodied in Section 414 imposes liability on the landowner for his own affirmative misconduct — misfeasance. A landowner is not liable for the acts or omissions of an independent contractor on his land under the active control theory unless he exercises control over the manner and methods of the contractor's work. It is appropriate to hold the landowner liable for injuries to a third party because that party would not have been injured if the landowner had not directed the work to be done in a negligent manner.
See RESTATEMENT (SECOND) OF TORTS, § 414 (1965) ("One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to control with reasonable care.").
See Handler, 901 A.2d at 740-41 (recognizing t hat a landowner may be liable to the employee of an independent contractor injured on his premises if the plaintiff demonstrates that the landowner actively controlled the manner and method of the independent contractor's work).
On the other hand, Section 343 imposes liability on a landowner for its "failure to take steps to protect [business invitees] from harm" — nonfeasance — because the nature of his relationship with the invitee creates a duty to act when the landowner knows or should know that the invitee will encounter a dangerous condition on the property, but only if it can also be proven that the landowner knew that the invitee was unaware of the danger. In such circumstances, the landowner owes a duty to inform the invitee of the dangerous condition. This duty exists whether the landowner is in control of the property or not.
KEETON at § 56.
See Wooleyhan II, 2006 WL 1214980, at *2.
The Plaintiffs' proffered definition of "previously existing" also misses the mark. To be sure, at first glance, the Plaint iffs' de finiti on is ap pealin g in its simplic ity. Under the Plaintiffs' definition, if the condition existed at the moment the plaintiff encountered it, then the condition was "previously existing." Simple indeed. Yet Wooleyhan II is clear: proof that a hazardous condition existed on the landowner's property prior to the plaintiff's exposure to the condition is not sufficient to sustain a claim under Section 343. Rather, a plaintiff must establish that the "previously existing hazardous condition" was one of which the landowner was aware (or should have been aware) and that it was "concealed" from the plaintiff and his employer. Both concepts — landowner knowledge and concealed hazard — modify the requirement of a "previously existing" hazard and help to define the term or, at least, place the term in proper context for practical application.
Neither Wooleyhan II nor Kinsman define the term "concealed," although Kinsman does observe:
There is no reason to distinguish conceptually between premises liability based on a hazardous substance that is concealed because it is invisible to the contractor and known only to the landowner and a hazardous substance that is concealed because it is visible but is known to be hazardous only to the landowner. If the hazard is not reasonably apparent, and is known only to the landowner, it is a concealed hazard, whether or not the substance creating the hazard is visible.
Kinsman, 123 P.3d at 943.
Thus, the definition of "concealed" must allow for the possibility that a plaintiff saw asbestos being used on the landowner's property but did not appreciate that it was hazardous at the time of exposure. Here again, the practical application of the term is tied to the state of knowledge of the parties. As explained in Kinsman:
[W]hen there is a known safety hazard on a [landowner's] premises that can be addressed through reasonable safety precautions on the part of the independent contractor, . . . the [landowner] generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor's employee if the contractor fails to do so. We see no persuasive reason why this principle should not apply when the safety hazard is caused by a preexisting condition on the property, rather than by the method by which the work is conducted. However, if the hazard is concealed from the contractor, but known to the landowner, the rule must be different. A landowner cannot effectively delegate to the contractor responsibility for the safety of its employees if it fails to disclose critical information needed to fulfill that responsibility, and therefore the landowner would be liable to the contractor's employees if the employee's injury is attributable to an undisclosed hazard.
Id. at 939-40. This holding was endorsed in Wooleyhan II:
Even where a latent, preexisting hazardous condition is created by one independent contractor performing work on the land, the landowner who knows about the latent condition may not avoid legal responsibility for injuries caused to employees of other contractors working on its premises, if the landowner knows that the other contractors and their employees are unaware of the risk created by the latent condition, and fails to give an appropriate warning of that risk or to take other appropriate action.2006 WL 1214980, at *2.
The Plaintiffs' definition of "previously existing" would shift from contractor to landowner the obligation to warn at the moment an employee/invitee encounters the hazard, regardless of whether the landowner knew of the hazard, and regardless of whether the contractor knew of the hazard. This construction of the term would run afoul of perhaps the most essential aspect of the Kinsman and Wooleyhan II decisions — liability will not attach under Section 343 unless the landowner knew or should have known of the hazard and knew or should have known that the contractor and his employees did not know of the hazard. "Concealed" and "previously existing" must be read together; both modify "hazardous condition." Accordingly, the Court concludes that a hazardous condition on property is "concealed [and] previously existing" when the landowner actually or constructively knows of its existence, the plaintiff and his employer do not, and it exists on the property before the plaintiff encounters it.
While this analysis is fact-intensive, at the end of the day, the outcome will always turn on the state of the parties' knowledge at the time of the alleged exposure. For instance, when the asbestos to which the plaintiff alleges he was exposed has been on the property for years, and is disturbed during a new work project, plaintiff will more readily prove that it was concealed and previously existing if he can establish that he did not know of the hazard. Pennington's first work experience at Edgemoor, for instance, would fit this scenario if he could establish that neither he nor his employer were aware of the asbestos hazard. On the other hand, a plaintiff may have more difficulty establishing that asbestos newly introduced on the job as part of an installation project was "previously existing" because it will be more difficult to establish that the landowner was aware of the presence of the new asbestos on his property at the time of exposure. Pennington's description of the new asbestos installation project that was ongoing during his second tour at Edgemoor would fit this scenario.
The Court's construction of "previously existing" comports with "currently existing" Delaware law. In DiOssi v. Maroney, the defendant landowners hosted a party where alcohol was served to minors. The landowners hired the plaintiff as a valet to park cars for their guests, presumably when the party began at 10: 00 p.m. The plaintiff was injured when he was struck at 4:30 a.m. by a car driven by an intoxicated minor from the party. The Supreme Court held that the presence of intoxicated minors was a dangerous condition because the landowners knew that minors were attending the party and they served alcohol at the party without proper supervision. The dangerous condition, intoxicated minors, did not exist on the property when the plaintiff began his work on the property at 10:00p.m, but did exist on the property before the plaintiff encountered the intoxicated minor driving a car at 4:30 a.m. The hazard was "previously existing" because the defendant was aware of it and it was present on the property before the plaintiff encountered it.
See DiOssi v. Maroney, 548 A.2d 1361, 1368 (Del. 1988) (holding that underage drinking posed an unreasonable risk of harm to valet at private party because the landowners knew of the presence of a large number of minors at the party, that they were serving alcohol at the party and there was a significant risk that the minors would imbibe in alcohol at the party).
Id. at 1363 n. 3.
Id.
On the other hand, in Hamm v. Ramuno, the landowner removed structural supports on his property without realizing that he had created a dangerous condition. The plaintiff entered the property thereafter and was injured when part of the structure collapsed. Even though the hazard was present before the plaintiff entered the premises, he was precluded from recovery because there was no way for the landowner to know the condition was dangerous.
Hamm v. Ramuno, 281 A.2d 601, 603 (Del. 1971). See also DiOssi v. Capano, 1977 WL 185679, at *1 (Del.Super.Ct. Dec. 12, 1977) (finding that landowner not liable for defect in a ladder used on its land by a subcontractor because it did not know, and had no way of knowing, that the ladder was on its land and that it was defective).
Hamm, 281 A.2d at 603.
The Court already has determined that genuine issues of fact exist as to whether each of the Defendants knew of the presence of friable asbestos on their properties and as to whether the Defendants knew that such asbestos was hazardous. The Court also has assumed for purposes of these motions that each of the Plaintiffs was exposed to friable asbestos — a hazard that was present prior to and at the time they encountered it. Still left to be determined is whether the hazard was "concealed." This inquiry necessarily implicates the state of each of the Plaintiffs' knowledge, and the state of knowledge of the contractor for whom he worked, at the time of the alleged exposure. Since this same question is at the center of later aspects of the safe workplace analysis, the Court will defer its discussion of the "concealed, preexisting" nature of the hazard until then.
2. Did The Defendants Know That Asbestos Was Dangerous?
As noted above, the parties do not meaningfully dispute that there is sufficient evidence in the record to create an issue of fact as to whether each of the Defendants knew that asbestos was dangerous at the time of the Plaintiffs' exposures. To the extent there is a dispute, the Court is satisfied that Plaintiffs' state of the art evidence, coupled with their evidence linking Defendants to published bulletins regarding the asbestos hazard, and the active steps taken within the organizations to address the asbestos hazard, sufficiently establish facts from which an inference of knowledge may be drawn.
3. Did The Contractor And His Employees Know That Materials On The Defendants' Premises Contained Asbestos?
The record with respect to each Plaintiff's familiarity with asbestos differs both in the degree to which the facts are developed and the extent of the individual knowledge revealed there. For his part, Helm now believes that materials used by other trades contained asbestos, but candidly admits that he has no personal knowledge to support this belief. Pennington also believes asbestos was on site based on the testimony of installers he has relied upon to establish exposure. Stymerski stated he saw different types of products at the DuPont Brandywine Building but could not say for certain whether they contained asbestos. Finally, Toy was unable to say whether or not he was exposed to asbestos when he worked at the Hotel DuPont or at Chestnut Run. On other DuPont jobs, however, Toy indicated that he thought he was exposed to asbestos on the job site even though he did not know if other trades actually used asbestos containing materials.
T.I. 11401935, Ex. A at 57-58.
T.I. 11288769, at A-8, A-9; T.I. 11289178, at A-197, A-203.
T.I. 11399234, Ex. A at 51, 56-57; T.I. 11289178 at A-268, A-269.
T.I. 11289178, at A-275, A-277, A-278.
Id. at A-279; T.I. 11391929, Ex. A at 118-121 (describing his work around asbestos at DuPont Seaford). It should be emphasized here that a plaintiff's knowledge that asbestos was on the site does not translate to knowledge that asbestos was hazardous or knowledge that the plaintiff was being exposed to harmful asbestos fibers. See Kinsman, 123 P.3d at 942-43. Thus, the mere fact that a plaintiff knew asbestos was on site will not defeat his Section 343 claim if he presents facts that would allow a fact-finder to conclude that he did not appreciate that asbestos was hazardous.
Entirely absent from the record is any evidence that might reveal the fund of knowledge regarding the presence of asbestos on the Defendants' property possessed by or available to each of the Plaintiffs' various employers at the time of the alleged exposures. Both Kinsman and Wooleyhan II speak not only of the plaintiff's (the employee's) knowledge of asbestos, but also of his employer's (the contractor's) knowledge of asbestos. This suggests that the plaintiff must establish that both the contractor and its employees were unaware that asbestos was on the job site in order to prevail on this element of the claim. As best as the Court can discern, the employer's knowledge (or lack thereof) simply was not addressed in discovery. In the absence of any evidence on this issue, the Court is unable to draw a reasonable inference regarding the state of the Plaintiffs' employers' (the contractors') knowledge of the presence of asbestos on the Defendants' properties at the time of the alleged exposures. Consequently, the Court must conclude that Plaintiffs have failed to present any facts upon which a reasonable fact-finder could conclude that their employers were unaware that asbestos was on the various job sites they have identified.
See Kinsman, 123 P.3d at 940; Wooleyhan II, 2006 WL 1214980, at *2.
Strnod, 181 Cal. Rptr. 2d at 740 (Cal.Dist.Ct.App. 1960)("A legal inference cannot flow from the nonexistence of a fact; it can be drawn only from a fact actually established.").
Anderson, 477 U.S. at 251 (motion for summary judgment calls upon the court to determine whether there is sufficient evidence from which a reasonable juror could find that the plaintiff could carry his burden at trial, based upon the material brought to the Court's attention by the parties).
4. Were The Contractors and Their Employees Aware of the Dangers of Asbestos?
Obviously, to the extent the Plaintiffs have indicated that they did not know that asbestos was present on the Defendants' property at the time of their exposure, the question of whether they appreciated the asbestos hazard is superfluous to the Section 343 analysis. Assuming arguendo that the facts could support an inference that Plaintiffs knew that asbestos was on their job sites, the Court would next have to determine if the record contains evidence that would support an inference that the employees did not appreciate that asbestos was dangerous at the time of exposure. In accordance with Wooleyhan II, after determining the state of the Plaintiff employee's knowledge with regard to the asbestos hazard, the analysis then turns to the state of the Plaintiffs' employers' knowledge.
At this point it is necessary to highlight a key distinction between traditional premises liability law and the safe workplace doctrine. In Delaware, the fact that a business invitee might have appreciated the danger of a hazardous condition at the time he encountered it would not, alone, defeat his claim against the landowner for premises liability. The trial court would instruct the jury that it could consider the relative degrees of fault of the plaintiff/invitee and defendant/landowner under Delaware's comparative negligence statute in order to determine if the plaintiff could recover. See Koutoufaris v. Dick, 604 A.2d 390, 398 (Del. 1992); 10 Del. C. § 8132 (declaring that plaintiff's contributory negligence in a claim of negligence "shall not bar a recovery by the plaintiff . . . where such negligence was not greater than the negligence of the defendant . . . but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff."). The safe workplace doctrine, however, incorporates the plaintiff's (and his employer's) lack of knowledge into the prima facie elements of the plaintiff's claim. See Wooleyhan II, 2006 WL 1214980, at *2; Kinsman, 123 P.2d at 946. Comparative negligence is not implicated under these circumstances.
Helm testified that he did not believe that asbestos was harmful until the 1980's when he read about it in newspapers. Likewise, Stymerski testified that he did not know asbestos was dangerous to his health, nor did he receive any warnings about asbestos, until the mid-1980's. As to these Plaintiffs, the Court is satisfied that they have presented facts from which a jury could conclude that they were not aware of the hazards of asbestos at the time they were working on DuPont properties.
T.I. 11401935, Ex. A at 57-58, 61, 111.
T.I. 11399234, Ex. A at 16-17; Ex. S, Interrog. 22.
The record is less clear with respect to whether Pennington or Toy appreciated the hazards of asbestos. Both recalled that the issue was not discussed during safety meetings, either by their employers or the landowners on whose property they were working. Yet neither Plaintiff was questioned directly regarding his appreciation of the asbestos hazard. Thus, the Court is left to consider the circumstantial evidence of their knowledge. To be sure, it is difficult to know what is going through someone's mind at any given time. In recognition of this reality, this court regularly instructs our jurors that they may determine a party's state of mind from circumstantial evidence. Before the inference of state of mind can be drawn, however, there must be some evidence upon which it can be based.
T.I. 11400693, Ex. A at 195; T.I. 11289178, at A-286; T.I. 14077873, Ex. A at 273.
See Walls v. State, 2005 WL 4536483, at *3 (Del.Super.Ct. Dec. 29, 2005) (affirming trial court's instruction that the jury may "draw a reasonable conclusion about the defendant's state of mind from the facts and circumstances surrounding the act the defendant is alleged to have committed."). See also 29 AM. JUR. 2D Evidence § 557 (2007) ("Knowledge, like intent, is a state of mind and may be proved by circumstantial evidence, since direct evidence on such facts is rarely available."). Cf. Niblett, 158 A.2d at 582 (noting that in some instances "the condition itself constitutes adequate warning.").
See 32A C.J.S. Evidence § 1341 at 763 (1996). Needless to say, in most instances, the fact-finder will not have to infer the state of mind of the plaintiff because the record will contain some direct evidence of his state of mind (e.g., his own testimony) by the time discovery closes.
For his part, Toy offers at least some evidence that would allow an inference of his ignorance of the asbestos hazard. Although he was by no means clear in his testimony on this issue, when pressed, he dismissed the idea that he may have appreciated the hazards of asbestos by saying: "They didn't even know what . . . asbestos was back then." A reasonable jury could take that statement as meaning that asbestos was not "on his radar screen" at the time he worked on the DuPont and Chrysler sites.
T.I. 14077873, Ex. A at 260.
The Court cannot, however, conclude on this record that a reasonable fact-finder could determine that Pennington did not know of the hazards of asbestos at the time he allegedly was exposed to it on the DuPont and DPL properties. The mere fact that he cannot recall whether the issue was discussed at on-site safety meetings is not sufficient to create an inference that Pennington did not know of the hazards of asbestos at the time of his alleged exposure. Likewise, the fact that DPL did not require him to wear a mask or other protective gear does not support the inference that Pennington lacked knowledge either of the hazards of asbestos or his likely exposure to it while performing his work. To draw that inference would be nothing more than speculation.
32A C.J.S. Evidence § 1341 at 763 (1996).
Turning to the employer's knowledge of the hazards of asbestos, once again, the record is wanting. There is simply no evidence in the record from which the fact-finder could conclude one way or the other what the Plaintiffs' employers knew or didn't know about the hazards of asbestos. Neither the Plaintiffs nor any of their co-worker witnesses addressed the issue directly. The most they were asked to do was to comment on whether asbestos was discussed at safety meetings. Some said no; others could not recall. The mere fact that asbestos was not addressed by the employer at safety meetings cannot, alone, create a genuine issue of fact on this issue, even when viewed in a light most favorable to the Plaintiffs. To attempt to explain the employer's failure to discuss asbestos at safety meetings would require pure speculation in the absence of further evidence that might (even circumstantially) reveal the employer's motive.
See T.I. 11288769, at A-210; T.I. 11400693, Ex. A at 195; T.I.11289178, at A0286; T.I. 14007873, Ex. A at 273; T.I. 11399234, Ex. A at 54.
The universe of potential evidence regarding the state of the employer's knowledge is as boundless as one's imagination. For instance, a plaintiff could present evidence regarding: how long the plaintiffs' employers had been in business or of the scope of the work they performed; the qualifications or backgrounds of the employers or their managers; whether the employers may have expressed their knowledge of the asbestos hazard outside of safety meetings, such as in employee handbooks, bulletins or other communications; whether the employers ever expressed a lack of knowledge of the asbestos hazard, or even expressed ignorance regarding the nature of the work the other trades were performing on the sites at issue (either before or after the alleged exposure); the specific tasks the employers were hired to perform on the defendants' job sites, or of the nature and extent of the delegation of responsibilities from landowner to contractor; the dissemination (or lack thereof) of trade or government data, literature, or regulations relating to asbestos among various trades or industries, and/or expert testimony on the state of the general public's knowledge of the asbestos hazard at the time of the alleged exposures and/or the state of knowledge within particular trades or industries.
Remarkably, there is no evidence that employers (at any level of management) have ever been asked to address the state of their knowledge of the asbestos hazard at any time during the extensive discovery that has occurred over the last thirty years of the Delaware asbestos litigation.
Cf. Kinsman, 123 P.2d at 943 (discussing the type of evidence that might be proffered to demonstrate the contractor's knowledge (or lack thereof) and recognizing the inherent difficulties in comparing the knowledge of the landowner against the knowledge of the contractor).
See Kinsman, 123 P.2d at 946 n. 6 (summarizing the testimony of Dr. Castleman — a Plaintiffs' expert in this case — to the effect that the asbestos hazard was not widely known among the general public until the 1970's.). This evidence does not exist in the record sub judice. Dr. Castleman does not refer to the level of knowledge of the asbestos hazard available to the various trades in which the Plaintiffs worked in the few pages of his testimony that Plaintiffs have provided to the Court, nor do Plaintiffs proffer that he will testify to the knowledge of the various relevant trades in their briefs. See T.I. 11391848, Ex. L.
Finally, and importantly, there is absolutely no evidence in the record from which a fact-finder could conclude that the Plaintiffs or their employers "could not reasonably have ascertained the hazard" of asbestos on the landowners' properties before or at the time of the alleged exposures. Indeed, the Court cannot discern where any effort was made to develop this evidence. Consequently, the Court must conclude that there is no evidence in the record from which a reasonable fact-finder could conclude that the Plaintiffs' employers did not know of, or could not have reasonably ascertained, the hazards of asbestos.
Kinsman, 123 P.2d at 943.
5. Did The Landowners Know That The Plaintiffs or Their Employers Did Not Know of the Hazards of Asbestos On The Property?
Assuming arguendo that Plaintiffs had provided some facts from which a reasonable jury could conclude that neither they nor their employers knew or should have known of the asbestos hazard, in order to make a Section 343 claim, Plaintiffs still must present some facts to support the contention that Defendants knew that they did not know. Plaintiffs argue that the manner in which Defendants treated them on their job sites demonstrates that the landowners knew that Plaintiffs and their employers did not know about the hazards of asbestos. They point to the fact that Defendants established safety rules to protect contractor employees from open and obvious dangers on the job sites, such as wearing hard hats or tying off a ladder, despite the employees' ability to recognize and appreciate the obvious dangers associated with falling debris. According to Plaintiffs, "[t]hey made rules about those open and obvious [dangers] as if . . . they believed the Plaintiffs wouldn't know better and wouldn't know how to protect themselves[.]" "[S]ince they took measures to enforce and promulgate safety rules about open and obvious dangers, they can't now claim that they thought and they believed that the Plaintiffs and their contractors would have known how to protect themselves from something that was a concealed danger."
T.I. 14882236, Transcript 191:3-11.
Id., 187:3-9.
Id., 187:3-5.
Id., 187:17-22.
Generally speaking, when a party acts in a manner that is inconsistent with the state of mind he is claiming at a relevant point in time, such inconsistent behavior is probative of his actual state of mind at that time. The supposed "inconsistent" conduct identified by the Plaintiffs, however, does not support the inference they are attempting to advance. The fact that a landowner promulgates general safety guidelines for work to be performed on his property says nothing of his belief, or lack thereof, that the workers would not know to engage in such safe practices in the absence of the landowner's guidelines. Even where DuPont's guidelines have been provided, the record does not indicate that DuPont knew that workers did not appreciate hazardous conditions on the property or their need to take appropriate safety precautions. To the contrary, DuPont's Safety Manual repeatedly emphasizes that its contents are a basic overview of safety procedures and not intended to encompass the entire universe of safety precautions.
See City of Mobile, Alabama v. Bolden, 446 U.S. 55, 138 (1980) (quoting Washington v. Davis, 426 U.S. 229, 253 (1976) (Stevens, J., concurring)) ("Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor."). See also United States v. Anderson, 859 F.2d 1171, 1178 (3rd Cir. 1988) (noting that contrary actions of defendant are admissible to undermine his state of mind defense).
Perhaps if the guidelines themselves were part of the record the parties might find some affirmative statements of the landowners that reveal their concern that workers do not appreciate hazardous conditions on the property or their need to take appropriate safety precautions. The fact that the guidelines exist, however, does not create that inference.
See T.I. 11391848, Ex. P at 2 ("The material covered in this manual has been purposely presented in abbreviated form so as to get broader coverage of more valuable practices in a simple, positive and practical manner. You are to interpret each line, statement or phrase in this manual as a 'basic' caution. Basic also means minimum."); Id., Ex. P at 18 ("The Safety Standards as outlined on the following pages are provided so that you may have ready reference to some of the more detailed Safety regulations. These standards are only minimum requirements to cover average conditions and in case of doubt, your superviser and DuPont should be contacted."); Id., Ex. P at 37 (informing foreman that "[t]he following items are placed in your hands primarily as a check by yourself on the quality of your foremanship and not necessarily because you may never have heard them before.").
Plaintiffs also argue that each of the Defendants observed them working around asbestos-containing products on their properties without safety gear, such as masks and respirators. They argue that this reveals that Defendants must have known that their contractors were ignorant of the asbestos hazard. The Plaintiffs' reasoning assumes that the Defendants saw them working in proximity to asbestos and, more importantly, knew that their employers were not in a position to assess the hazard and direct their own employees accordingly. It also assumes that the Defendants could conclude that the Plaintiffs and their employers would have no reason to know of the asbestos hazard. As stated above, these assumptions are not supported by the record. To conclude otherwise would require the fact-finder to speculate as to what the Defendants knew or should have known — a result not permitted by Delaware law.
T.I. 14882236, Transcript 185:4-12.
6. Did the Landowner Fail to Warn the Contractor or To Take Other Appropriate Action to Prevent the Injury.
Given the Court's rulings with respect to the other elements, it need not reach this element. Moreover, Defendants did not raise this element as a basis for summary judgment, apparently in recognition that they did not warn the contractors of the asbestos hazard.
C. Toy's Remaining Claims Against Chrysler — Active Control, Voluntary Assumption of Safety Responsibility, and Possessory Control of the Workplace.
As an alternative to his premises liability claim under Section 343, Toy has alleged that Chrysler is liable to him for injuries sustained from exposure to asbestos on Chrysler's property because Chrysler, as owner or general contractor, owed him a duty of care. The general rule of landowner liability is 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 whi ch the work is performed[ .]" The Supreme Court of Delaware has recognized three exceptions to this rule — liability may be imposed when the landowner or general contractor: "(1) exercises active control over the manner and method of the independent contractor's work, (2) voluntarily assumes responsibility for safety, or (3) maintains possessory control over the work area during the work." Toy argues that all three exceptions to the general rule apply in this case.
O'Connor v. Diamond State Tel. Co., 503 A.2d 661, 663 (Del.Super.Ct. 1985). See also RESTATEMENT (SECOND) TORTS § 409 (1965) ("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.").
Handler, 901 A.2d at 740-41.
1. Chrysler Did Not Actively Control the Manner and Method of Toy's Work
In its Opening Brief, Chrysler argues that it did not exercise active control over the manner in which Toy performed his work. Chrysler points to Toy's testimony that he had no work-related contact with Chrysler while working on xChrysler's property. He provided his own hand tools and his employer provided him with power tools, safety equipment and other materials he needed to perform his job. Toy further testified that his foreman supervised his work, was responsible for on-the-job safety and led weekly safety meetings. According to Chrysler, Toy's own testimony reveals that he cannot establish that Chrysler controlled the method or manner in which he performed his work.
T.I. 3438997, at 21.
T.I. 4348997, HTD at 271-274, 277.
Id. at 21.
Id. at 22.
Id. at 23.
In response, Toy argues that Chrysler controlled his work because "Chrysler specifically required the use of asbestos on its property, scheduled the work, provided tools, and had its own supervisors present during the work." Toy does not cite to any part of the record to support his argument. Instead, he analogizes his claim to the claim allowed in Rabar. According to Toy, Rabar holds that a premises owner "may be liable for dangers caused by negligence of an independent contractor if the owner exerted some control over the work or over the work site premises."
T.I. 4664079, at 27.
See Rabar v. E.I. duPont de Nemours Co., Inc., 415 A.2d 499 (Del.Super.Ct. 1980).
See id. at 506 ("However, even if the control exercised by the owner over the entire project is insufficient to render it liable under this test, the owner may still be liable to some extent if it retained sufficient control over part of the work or if it retained possessory control over the work premises during the work.").
This Court recently addressed the applicable legal standards implicated by a claim against a landowner based on active control of the plaintiff's work:
While there is no bright line test, it is clear that active control does not exist merely because the owner or general contractor maintains "general superintendence" over the work to ensure that it complies with the contract specifications. There must be discernable control over the manner and method of the performance of the contract work such that "the contractor is not entirely free to do the work in his own way."
* * *
A summary of the extensive case law on the subject reveals a broad, but not exhaustive, list of factors the court might consider to determine the presence of active control, including: (1) who provided the plaintiff with the tools and equipment to perform the work; (2) who had the authority to hire, fire, or discipline the plaintiff; (3) who did plaintiff approach to address workplace concerns; (4) who controlled the operations at the work site; (5) who directed the plaintiff's work; and (6) whether the landowner was "in a position of authority to provide a safe workplace for all trades."
The Court finds that, at best, Chrysler exercised general superintendence, not active control, over Toy's work at the Chrysler plant. Toy acknowledged that he had no work-related contact with any Chrysler employees during his employment with two independent contractors at the Chrysler plant. He provided his own hand tools and his employer provided him with power tools, safety equipment and all the materials he needed to do his job. Toy's foremen were employed by the same independent contractors that employed Toy. Those foremen supervised his daily work, gave direction on how the work was to be done, were responsible for on-the-job safety and led weekly safety meetings. The record does not suggest that Chrysler issued safety manuals or tools to Toy or other independent contractors on the site, nor does it reflect that Chrysler restricted his access to certain areas of the plant, or prevented him from performing the work as he pleased. Thus, it is clear from the record that Toy and the independent contractor that employed him were free to work as they deemed appropriate.
See Handler, 901 A.2d at 745.
Viewing the record in the l ight mos t favor able to Toy, the Court is satisfied that Chrysler owed no duty to Toy by virtue of its active control over the methods and manner of his work at the Chrysler plant.
2. Chrysler Did Not Voluntarily Assume the Safety Responsibilities for Toy's Work
The Supreme Court of Delaware has held:
[T]hose who have responsibility for workplace safety must take reasonable measures to ensure the safety of those at the work site. A duty to ensure workplace safety can be imposed upon a party who [voluntarily], by agreement or otherwise, undertakes responsibility for implementing required safety measures. Where breach of the assumed duty causes injury to a worker, the responsible party can be held liable under the traditional principles of negligence law."
Id. at 746-47.
This exception to the general rule that landowners owe no duty to employees of independent contractors working on their property is derived from the Restatement (Second) of Torts § 324A, which provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary 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 is suffered because of reliance of the other or the third person upon the undertaking.
Id. at 747 (citing RESTATEMENT (SECOND) OF TORTS § 324A (1965)).
The Court finds that the undisputed facts show that Chrysler did not voluntarily assu me responsibility for Toy's safety at Chrysler's Newark plant. Once again, T oy's own testimony contradicts his claim. Toy testified at deposition that his employer was largely responsible for his safety at the Chrysler plant. Toy's foremen all were employed by Toy's employer and were responsible for on-the-job safety. His foremen, not Chrysler, led weekly safety meetings. There is no evidence that Chrysler issued safety manuals or tools to Toy or other employees employed by the same independent contractors.
To overcome his own damaging testimony, Toy points to several safety regulations Chrysler allegedly had in place at the Chrysler plant. For example, Toy states that Chrysler "had safety regulations in place at the sites . . . [that] required contractor employees [to] wear certain safety equipment while on the sites. The safety equipment required by the Defendant included hard hats, safety glasses, and fall protection. . .Supervisors were placed on the job sites by the owner to ensure that the landowner's rules were being complied with, and the landowner had the authority to interact directly with the contractors' employees on the issue of safety." Yet Toy has failed to cite any evidence in the record to substantiate these claims. Even if the claims were supported, the general safety guidelines would not constitute an assumption of safety responsibility for the independent contractors working on the site. After reviewing the record in the light most favorable to Toy, the Court finds that these unsubstantiated assertions are not enough to demonstrate a material issue of fact as to whether Chrysler voluntarily assumed responsibility for the safety of its contractors' employees.
T.I. 4664079, at 28.
3. Chrysler Did Not Retain Possessory Control Over Toy's Work Area
Finally, Toy argues that Chrysler controlled the work-area by specifically requiring the use of asbestos on its property, scheduling his work, providing tools, and having supervisors present during the work. Toy maintains that he has presented enough evidence to defeat a motion for summary judgment under the standard set forth in Rabar because Chrysler exercised close supervision and control over the job site at the Chrysler Newark plant. According to Toy, "[t]he Rabar Court's denial of DuPont's motion for summary judgment in that case turned not on the ancillary issues cited by Plaintiffs such as where employees can park and who controls securi ty, but rather on the degree of control DuPont exercised over the actual performance of the work."
T.I. 48037023, at 27.
Id. at 29.
T.I. 48037023, at 39-41 (citing Rabar, 415 A.2d at 499).
Toy is correct that Rabar held that "even if the control exercised by the owner over the entire project is insufficient to render it liable under this test, the owner may still be liable to some extent if it retained sufficient control over part of the work or if it retained possessory control over the work premises during the work." Under Rabar, the court will consider whether the landowner assumed most of the "general contractor responsi bilities at the over all manageri al level[,]" such as setting deadlines for the project, setting standards as to how the project would be performed, supplying construction materials and equipment, subcontracting out specialty work, and controlling security at the job site. Although Rabar was overruled on other grounds, this court has held that Rabar's work-area control test is still valid, and "those found to be in control of a defined work area are under a common law duty to make reasonable efforts to provide for the safety of workers in the control area."
Rabar, 415 A.2d at 506 (citing RESTATEMENT (SECOND) OF TORTS § 414, § 422(a) (1965)).
Id. at 507; Bryant v. Delmarva Power Light, 1995 WL 653987, at *8-9 (Del.Super.Ct. Oct. 2, 1995).
Bryant, 1995 WL 653987, at *8-9 (finding that defendant's independent contractor maintained possessory control over the work-area where plaintiff's accident took place); Hawthorne v. Summit Steel, Inc., 2003 WL 23009254, at *7 (Del.Super.Ct. July 14, 2003).
Hawthorne, 2003 WL 23009254 at *8. See also Handler, 901 A.2d at 749 (holding that subcontractor had exclusive control of the work area and no employee of the defendant was present when plaintiff was injured).
Viewing the record in the l ight mos t favor able to Toy, the Court is satisfied that no genuine issue of material fact exists regarding the extent to which Chrysler maintained possessory control of the work-area. The evidence cited by Toy does not allow any inference that Chrysler retained possessory control over the work premises during Toy's work at the Newark plant. Toy testified that his employer's foremen directed and supervised his daily work and th at job relat ed ins truct ions came from his foremen and not someone employed by Chrysler. Toy's general foreman was the person in charge of the area in which Toy performed his work. In stark contrast to the evidence presented in Rabar, there is no evidence in the record that Chrysler scheduled the phases of Toy's job, decided where, when, and how many workers were to be used on the jobs, supplied the construction materials, tools, and equipment, or retained the right to "terminate the contract at any time for its own convenience."
Rabar, 415 A.2d at 507 (internal citations omitted).
V.
The Plaintiffs have not presented evidence in the record from which a reasonable fact-finder could find: (a) that they were exposed to a "concealed, previously existing condition" on the Defendants' properties; (b) that neither they nor their employers knew or had reason to know of the hazardous condition on the defendants' property; or (c) that the Defendants knew that neither they nor their employers knew or had reason to know of the hazardous condition. Consequently, they cannot sustain their claim under Section 343. In addition, all Plaintiffs except Toy have waived their other claims against the Defendants by failing to respond to the Defendants' motions for summary judgment with respect to such claims. As to Toy, the undisputed record does not support his claim that Chrysler actively controlled the manner and method of his work, voluntarily assumed responsibility for safety, or controlled the work area.Based on the foregoing, the Defendants' motions for summary judgment as to all claims of the group A plaintiffs must be GRANTED. IT IS SO ORDERED.
Judge Joseph R. Slights, III
Original to Prothonotary