Submitted: November 7, 2014
Christina M. Gafford, Esquire, TYBOUT, REDFEARN & PELL, Attorney for Pettinaro Const. Co, . and Court House LLC.
William A. Crawford, Esquire, FRANKLIN & PROKOPIK, Attorney for Delcard.
Michael I. Silverman, Esquire, Silverman McDonald & Friedman, Attorney for John Slattery.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT THIRD-PARTY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED AND DEFENDANT/THIRD-PARTY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED.
BRADLEY V. MANNING, COMMISSIONER
Before the Court are two motions for summary judgment. The first was filed by Delcard on October 14, 2014 and the second was filed by Pettinaro and Court House LLC., on October 15, 2014. Both parties filed a response on October 31, 2014. A hearing was held on November 7, 2014. Plaintiff's counsel was present at the hearing but is not a party to either motion for summary judgment. Per the Court's scheduling Order dated September 24, 2013, all dispositive motions were due October 15, 2014. A pretrial conference is scheduled for November 18, 2014, and trial is scheduled for December 1, 2014. Aside from the pending motions, the parties indicated that the case is ready for trial and that mediation was unsuccessful.
At the hearing on November 7, 2014, Delcard advised the Court that it also recently became aware of another basis to move for Summary Judgment that was not presented in the written pleadings. The Court instructed Delcard to file an expanded Motion for Summary Judgment by November 12, 2014 and for Pettinaro to file a Response by November 17, 2014. Because the issue raised by Delcard at the hearing was not made in a written pleading prior to the motion deadline giving opposing counsel an opportunity to respond, it is not properly before the Court and is not part of this Report.
After fully and thoroughly reviewing the parties' respective positions, the Court has determined that the issues presented herein cannot be decided on the record presented. For the reasons that follow, it is hereby recommended that both Motions for Summary Judgment be denied.
On January 27, 2011, Plaintiff John Slattery was working as a pipefitter for Delcard Associates on the roof of the old Family Court building in Wilmington, Delaware. Delcard was a subcontractor for Pettinaro Construction who was acting as the general contractor and construction manager for the owner of the building, Court House LLC. Court House LLC. is owned by Pettinaro Construction. The night prior to the incident it had snowed three to four inches and that snow remained on the roof of the building. While working on the roof, Plaintiff slipped and fell as he attempted to walk-up a small incline using a wooden shipping pallet as a type of step or ramp. It is unknown who put the wooden pallet on the roof, but it was covered, to a certain extent at least, by snow. Plaintiff's job was to "pull measurements" and to drill holes in pipes on the roof. Plaintiff's work area was located in a small metal shed located on the rooftop that housed building mechanical components. The building had two such sheds located a short distance apart. The area where Plaintiff fell was located somewhere between the two small buildings. At the hearing, counsel for Delcard and Pettinaro gave conflicting accounts as to how much, if any, of the snow had been removed and from what part of the roof. Plaintiff had been working up on the roof for most of the morning prior to the fall. Plaintiff finished work on the day of the fall and did not report his injury until he arrived at work the next day with worsening pain.
Plaintiff brought suit against Pettinaro and Court House LLC., on November 30, 2012, alleging that their negligence was the direct and proximate result of the injuries he sustained while working on the roof. Pettinaro filed its Answer and a Third-Party Complaint against Delcard on March 15, 2013. Pettinaro denied liability, asserted various affirmative defenses and, in the event found liable to Plaintiff, sought contractual indemnification from Delcard pursuant to a Subcontact Agreement.
On October 14, 2014, Delcard moved for Summary Judgement against Pettinaro "based on the inability of Pettinaro to prove the most essential element of its case against Delcard namely, that Delcard had a duty to clear the snow and ice on the rooftop of the courthouse." Additionally, Delcard claims that the indemnification clause of the Subcontract Agreement is void and unenforceable under 6 Del. Code § 2704(a), as against public policy. Delcard argues that the agreement, in effect, allows Pettinaro to indemnify itself from its own negligence.
On October 15, 2014, Petinaro moved for Summary Judgment against Delcard. Pettinaro argues, in essence, that Delcard was negligent and breached a duty of care owed to Plaintiff as a matter of law. Pettinaro argues that Delcard breached the Subcontract Agreement by not taking reasonable safety precautions to prevent injury to its employees. Pettinaro also claims that it is entitled to contractual indemnification from Delcard as to any damages awarded to ...