Plaintiff’s Failure to Establish Worksite Control Leads to Grant of Summary Judgment in Premises Liability Case” Superior Court of Delaware, April 18, 2019

DELAWARE — The plaintiff Werner Rath brought suit against several premise defendants including Delmarva Power and Light, Four Star Oil and Gas Company, Texaco, Inc. and Sunoco (defendants) alleging exposure to asbestos while working for Catalytic at worksites owned by the defendants. Specifically, Mr. Rath alleged exposure to asbestos from other trades working around him while he built and dismantled scaffolding at the different sites. The other trades were also employed by Catalytic. Relying on several precedent cases, the defendants moved for summary judgment arguing they owed no duty of care to the employee of a contractor as the defendants were landowners. Relying on the same cases, the plaintiff opposed summary judgment and took the position that he should be considered a plaintiff for whom a duty of care is owed under certain exceptions.

The court started its analysis with the rule for summary judgment. According to the court, summary judgment is appropriate when there are no genuine issues as to any material fact. As for landowner liability, the court noted that generally “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 or the conditions of the premises of the manner in which the work is performed.” However, a series of cases and the restatement of torts provided exceptions in some instancest. Specifically the court held in the Helm matter that the plaintiffs in landowner liability claims fell into two groups of the plaintiffs – A and B. Group A plaintiffs included employees of independent contractors who did not work “directly with asbestos” but claimed exposure from those working around them with asbestos containing products. Group B plaintiffs were directly exposed by their own work. Certain prior decisions focused only on Group B plaintiffs. However, the plaintiff asserted that he was a Group A plaintiff under the Helm matter. Therefore, the landowner defendants should be liable to him under “provisions found in the various sections of the restatement”. Further, the plaintiff took the position that the defendants should be liable based on the prior decision in Rabar.

The court quickly disagreed with both arguments. As for Rabar, the court noted that that decision was not based on an asbestos case and rather dealt with a matter where the landowner had assumed the role of general contractor. Further, issues as to who controlled the worksite were present. Helm which was an asbestos matter and presented three exceptions to the general rule. Liability could be imposed to landowners where the defendant “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.” The court determined that liability would not be imposed on the defendants even if Rath successfully invoked the restatement because the plaintiff had previously failed to respond to that argument and has since waived it.  Secondly, nothing suggested that the landowners controlled the manner or method of the plaintiff’s work. On the contrary, Catalytic “hired, paid, and supervised” the plaintiff. Moreover, Catalytic ran the safety meetings. Accordingly, summary judgment was entered in favor of the defendants.

Read the full case decision here.

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