SANDRA KIVELL, individually and as Personal Representative of the Estate of MILTON J. KIVELL, deceased, Plaintiff,
MURPHY OIL USA INC. et al., Defendants. IN RE: ASBESTOS LITIGATION
Defendant Murphy Oil USA Inc.'s Motion for Summary
L. Scott, Judge.
Sandra Kivell ("Plaintiff) cannot satisfy the summary
alleges that her husband, Milton Kivell ("Mr.
Kivell") contracted mesothelioma while working at
Defendant Murphy Oil USA Inc.'s ("Defendant")
refinery, and Mr. Kivell's illness eventually caused his
death. In August 2015, Mr. Kivell was deposed. Mr. Kivell
stated that he worked construction jobs at Defendant's
facility in 1972 and 1979. Mr. Kivell was employed by Litwin
Construction during 1972 where Mr. Kivell cut shipping
brackets. A Litwin employee, Vincent Vicidomina, stated that
Mr. Kivell's work for Litwin included part of the
construction of the Crude Distillation, Platformer, and
Hydrobon units by Litwin at the refinery. According to Mr.
Vicidomina's affidavit, Defendant hired Litwin
Construction as a "turnkey contractor, " which is a
"contractor who exercised total control of the
construction of the new unit... and then turned the new unit
over to Murphy upon completion." Additionally,
"Litwin was obliged to furnish 'all mechanical
design, drafting, procurement, expediting, and inspection
services; equipment and materials; transportation and travel;
field labor and supervision; construction tools, supplies and
facilities . . . and all other things and services necessary
for the installation of a battery limits process
facility." Mr. Kivell also testified that the 1972
project was directed by his Litwin foreman.
Mr. Kivell worked at Murphy while he was employed by Matthews
McCraken Rutland ("MMR"), a subcontractor of the
general contractor McDermott/Hudson Engineering. McDermott
constructed the FCC Unit and Alkylation Unit in Area 4 of the
Meraux refinery from 1977-1980. Mr. Kivell's job involved
installation of tubing. Mr. Vicidomina stated that asbestos
insulation products were not used in the construction of the
FCC and Alkylation Unit in Area 4 of Defendant's
refinery. Defendant provided the McDermott contract which
states that McDermott maintained the right to direct and
control the construction and the workers. Plaintiff claims
that Defendant ignores Mr. Kivell's testimony that his
work at Murphy involved significant maintenance of existing
equipment, and "tie-ins" of new equipment, and that
Murphy specified the use of asbestos in its facility.
However, this is a freestanding proposition with no citation
to the record before the Court.
argues that it did not owe a duty to Plaintiff under
Louisiana law, thus Plaintiffs negligence action fails.
Plaintiff relies on Thomas  and
Smith, two decisions applying Louisiana law.
Plaintiff argues these cases demonstrate that a landowner has
a duty to protect independent contractors from unreasonable
risks of injury or harm. A more recent decision from the
United States District Court for the Western District of
Louisiana, Roach v. Air Liquide Am., the court held
that Smtih was an "improper expansion of
Louisiana law, " and "there is a distinction
between hazards that are inherent in a defendant's
premises (for which a premises owner owes a duty) and hazards
inherent in an independent contractor's job (for which a
premises owner does not owe a duty)." The
Roach court pointed out that the hazard to the
plaintiff in that case, sandblasting silica, was "not
inherent in defendant's premises; the airborne silica
which was temporary in nature and transported to the facility
by the plaintiffs employer and/or supplier. The hazard was
inherent in the performance of the
sandblasting." Thus, the court found that it was the
"employer's duty to ensure plaintiffs safety with
respect to the specific hazards created by the performance of
[plaintiffs] work." Likewise, Plaintiff claims that her
husband was exposed to asbestos from products used while
employed by an independent contractor at Defendant's
facility. Following the Roach decision, there is
nothing in the facts for a jury to infer that asbestos was
inherent in Defendant's premises. In fact, Defendant
presented evidence that asbestos insulation was not used
during construction of the FC Unit and Alkylation Unit in
that under a premise owner's general duty, which the
Smith court expanded to include that a land owner
"had a duty to take reasonable steps to ensure a safe
working environment for the employees of an independent
contractor, " the record is void. Plaintiff did not
provide evidence, such as, Defendant's knowledge that
asbestos was being used, Defendant's specific request for
asbestos use, or knowledge of the dangers of asbestos at the
time Plaintiff was employed on Defendant's premises. For
example, in Thomas, the employer's
"construction manager, testified that in early 1970s
[the company] was constructing and engineering power plants
on a world-wide basis and knew of the hazards of asbestos
exposure, " and there was evidence of contracts for
asbestos containing products to be used on the
premises. Similarly, in
Jefferson, the plaintiff presented evidence that he
unloaded, handled, and transported asbestos on the
defendant's premises. Additionally, in Smith,
the plaintiff presented evidence that he was exposed to
asbestos while working on the defendant's premises. Here,
Plaintiff has not presented any evidence to create a genuine
issue of material fact that Defendant breached a duty owed to
Mr. Kivell under Louisiana law. Therefore, Defendant's
Motion for Summary Judgment on Plaintiffs negligence claim is
summary judgment on Plaintiffs strict liability claim is also
granted. In Louisiana, to hold a defendant strictly liable,
"the plaintiff must prove: (1) the thing which caused
the damage was in the care, custody and control of the
defendant; (2) the thing had a vice or defect which created
an unreasonable risk of harm; and (3) the injuries were
caused by the defect." Additionally, custody,
"for the purposes of strict liability, does not depend
upon ownership, but involves the right of supervision,
direction, and control as well as the right to benefit from
the thing controlled." The "[m]ere physical
presence of the thing on one's premises does not
constitute custody." Defendant is entitled to
summary judgment on the strict liability claim as well
because there is nothing in the record indicating that
Defendant had any type of direction, control, or ownership of
an asbestos product used by Plaintiff. Mr. Vicidomina's
affidavit, provided by Defendant, states otherwise.
Therefore, Defendant's Motion for Summary Judgment is
IS SO ORDERED.
 Super. Ct. Civ. R. 56; Smith v.
Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del.
Super. Dec. 30, 2013); see Moore v. Sizemore, 405
A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S,
Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In
re Asbestos Litigation (Helm), 2012 WL 3264925 (Del.
Aug. 13, 2012).
See Thomas v. A.P. green Indus.
933 So.2d 843, 853 (La.Ct.App. ...