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01/05/89 WILLIAM E. FARRALL v. A. C. & S. CO.

January 5, 1989

WILLIAM E. FARRALL, ET AL., PLAINTIFFS,
v.
A. C. & S. CO., INC., ET AL., DEFENDANTS



On Motion of Defendant Texaco, Inc. for Summary Judgment

Marc P. Niedzielski, Master

The opinion of the court was delivered by: Niedzielski; Taylor

MASTER'S FINAL REPORT

Marc P. Niedzielski, Master

Under the provisions of a scheduling order promulagated by the Court on April 26, 1988, one of the defendants, Texaco, Inc. , filed a motion for summary judgment. Texaco Refining and Marketing Inc., a Delaware corporation and wholly owned subsidiary of Texaco, owns and operates the Delaware City petroleum refinery. In this motion, the named defendant Texaco contends that as a so-called "landowner defendant" *fn1, it maintained insufficient control over the "methods and manner" of the work to render it liable for the plaintiffs' claimed injuries.

The plaintiffs' response extends beyond the issues raised by Texaco. First, they contend that the record reveals sufficient control by the moving party so as to defeat the present motion. Second, they argue that Texaco's position as a supplier of asbestos materials to the plaintiffs' employer provides an additional basis for liability.

Superior Court Civil Rule 56(c) provides in part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

In applying the above standard, all of the material facts and their reasonable inferences are viewed in a light most favorable to the non-moving party. Allstate Auto Leasing Co. v. Caldwell, Del.Super., 394 A.2d 748, 752 (1978); Nutt v. A. C. & S. Co., Inc., Del.Super., 517 A.2d 690, 692 (1986). Once the motion for summary judgment is "supported" by a showing of the moving party that there are no material issues of fact, the burden shifts to the non-moving party to establish that there is a material factual dispute. Moore v. Sizemore, Del.Supr., 405 A.2d 679, 681 (1979).

I. CATALYTIC EMPLOYEES

The plaintiffs in the present action are journeyman insulators, save one, and their wives who claim personal injury as the result of exposure to asbestos fibers and a loss of consortium, respectively. The exception is one, Pauline Kline, the wife of an insulator, who claims physical injury as the result of asbestos fibers that were brought home on her spouse's clothes. These plaintiffs allege that as employees of a maintenance contractor *fn2, Catalytic, Inc. , they were wrongfully exposed to the asbestos fibers due to the negligence of Texaco *fn3 Texaco had for many years contracted with Catalytic for the maintenance and repair of the oil refinery located in Delaware City, Delaware. One of the contract duties of Catalytic during this period was the removal, repair and installation of asbestos insulation throughout the refinery complex.

The central issue in the present matter is the level of control exercised by Texaco over Catalytic in its performance of the maintenance contract. More specifically, whether Texaco controlled the "methods and manner" of the plaintiffs' work in such a way as to be attributable to the claimed injuries of the plaintiffs. Rabar v. E. I. duPont de Nemours & Co., Inc., Del.Super., 415 A.2d 499, 506 (1980); Williams v. Cantera, Del.Super., 274 A.2d 698, 700 (1971); Farrall v. A. C. & S. Co., Inc., Del.Super., C.A.No. 85C-FE-10, Taylor, J. (May 11, 1988) (Order); Restatement (Second) of Agency §§ 219-220.

Generally, a landowner is under no duty to protect an employee of an independent contractor from the hazards inherent in the performance of the contract. The general rule is subject to the condition that the landowner does not retain active control of the methods and manner of the contract performance. Williams, 274 A.2d at 701. The court in Williams held that such a condition is not met when the alleged control is merely a reversionary right to take control or to inspect for contract specifications. Instead, the control must be active. In Williams the court granted summary judgment based on the absence of any evidence which would support the finding of active control over the methods and manner of the work conducted by the employee of the contractor.

This court in Rabar denied summary judgment to the landowner defendant, duPont, based on its role in the contract with the independent contractor. While the specific holding in Rabar rests on obligations imposed by statute, the court found that the common law duties are consistent with those obligations in regard to landowners. Rabar, 415 A.2d at 506. The court cautioned that the general rule of liability of landowners to the employees of independent contractors is distinguished by the variety of exceptions. Rabar, 415 A.2d at 506 & n. 2, 508 & n. 4. Furthermore, the court indicated that even if the owner's control over the entire project is insufficient for liability, retained control over a part of the work or possessory control over the premises may be a sufficient predicate for liability. Rabar, 415 A.2d at 506; Restatement ...


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