Submitted: March 15, 2013
Upon Consideration of Third-Party Defendant/Fourth-Party Plaintiff Cablenet Services Unlimited Inc.'s Response and Adoption of Fourth-Party Defendant's Motion for Summary Judgment DENIED
H. Cubbage Brown, Jr., Esq., and Andre M. Beauregard, Esq., Brown, Shiels & Beauregard, LLC, Dover, Delaware for Plaintiff.
Louis J. Rizzo, Jr., Esq., and Sandra F. Clark, Esq., Reger, Rizzo & Darnall, LLP, Wilmington, Delaware for Comcast of Delmarva, Inc.
Matthew E. O'Byrne, Esq., Casarino, Christman, Shalk, Ransom & Doss, P.A., Wilmington, Delaware for Cablenet Services Unlimited, Inc.
Robert B. Young Judge.
While many factors regarding the interworkings of many of the dealings among the various organizations which have had some role in the installation of cable for Robert Wentler ("Plaintiff") have been agreed upon, the significance of those factors creates an area of unresolved responsibilities. Accordingly, material fact issues remain, therefore Defendant Cablenet's Motion for Summary Judgment is DENIED.
Plaintiff alleges in his complaint, filed July 6, 2009, that he was injured when he tripped or was caught up in a cable lying on top of the grass in his yard. In May 2007, Comcast of Delmarva, Inc. ("Comcast") replaced the cable wiring to Plaintiff's home. At the time the work was completed, the new cable was left above the ground, not buried as the previous cable had been. The actual work was performed by Robert Croom operator of Old Fashion Communications, Inc. ("OFC") Comcast has an agreement with Cablenet Services Unlimited, Inc. ("Cablenet") whereby Cablenet provides installation, disconnection and maintenance services assigned by Comcast through orders. Cablenet hired OFC as a subcontractor.
At the time the wiring was replaced, Plaintiff alleges that he was told that the cable would be buried in about five days. Eight weeks after installation, the cable still had not been buried. On July 8, 2007, Plaintiff, who normally only traversed this area of his yard when he needed to go to his storage shed, allegedly became caught by the cable. According to the Complaint, the cable became wrapped around his left foot and ankle. Plaintiff was in a wheelchair at that time. He claims the wheels of the wheelchair came to rest on the cable causing it to pull tight. As a result, the Plaintiff claims to have suffered injuries to his foot, as well as incurring pain to his upper body when he was thrown to the ground.
Comcast's records show that Plaintiff called in on June 4 and June 15, 2007. Plaintiff alleges those calls pertained to the unburied wire. Comcast's work order history also shows work orders for Plaintiff dated June 4, 20 and July 2, 2007. Despite both the calls and work orders, the cable had still not been buried on July 8, 2007, when the alleged injuries to the Plaintiff occurred.
The contract between Cablenet and Comcast allegedly required Cablenet to complete and submit certain forms after work was completed. One purpose of these forms was to identify further work that needed to be done, such as the need to return to a customer's home to bury wires. OFC completed the proper paperwork and submitted it to Cablenet. It appears that Cablenet was then responsible for passing that paperwork on to Comcast, and for handling invoicing and payments. Comcast alleges that it never got any paperwork from Cablenet, identifying a need for further work on Plaintiff's property. Cablenet alleges that it did submit the paperwork.
No one disputes that OFC was paid for its completed work. However, Comcast contends that it did not have notice, because of Cablenet's failure to fulfill the paperwork requirements of the need to return and bury the wire. Cablenet claims that it did submit the paperwork, as evidenced by payment, and that even had it not submitted the paperwork Comcast was still on notice of the need ...