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Kivell v. Union Carbide Corp.

Superior Court of Delaware

May 1, 2018

SANDRA KIVELL, individually, and as Personal Representative of the Estate of Milton J. Kivell, deceased, Plaintiff,
UNION CARBIDE CORP. et al., Defendants.

         On Defendant's Motion for Summary Judgment after reviewing additional evidence.


          The Honorable Calvin L. Scott, Jr.Judge

         This Court granted summary judgment on August 30, 2017 in favor of Defendant Union Carbide Corporation ("UCC"). The Court granted Defendant's motion for summary judgment based on Louisiana case law including Western District of Louisiana's decision in Roach v. Air Liquid America.

         On their Motion for Reargument, Plaintiff argued that UCC did not advance any of the evidentiary issues relied on by this Court in its motion for summary judgment, and thus waived the arguments concerning the presence of asbestos in the Taft facility.

         Plaintiff's main argument on her Motion is that evidence, not available at the time of summary judgment, was discovered by Plaintiff's counsel. Plaintiff contends that the contracts, and subsequent documents produced by Kiewit contain evidence that this Court determined Plaintiff was missing on summary judgment.

         In granting a motion for reargument under Superior Court Civil Rule 59(e), the only issue is whether the Court overlooked something that would have changed the outcome of the underlying decision.[1] The Court considered the documents as newly discovered evidence because it was evidence that the Court did not have and was not able to consider at the time of its decision. Plaintiff laid out his position in the initial Motion. Defendant responded to Plaintiff's argument regarding the new evidence and Plaintiff has filed a reply.

         The Court may grant a motion for summary judgment made pursuant to Superior Court Civil Rule 56 where the movant can show from the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, that no material issues of fact exist so that the movant is entitled judgment as a matter of law. In considering a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party.[2]

         In Plaintiff's motion for reargument three facts are called into question upon which summary judgement was granted; that UCC exercised a degree control over its independent contractor and Mr. Kivell so as to impute vicarious liability to UCC, that the Taft facility contained asbestos sufficient to hold UCC directly liable, and that UCC can be held strictly liable based on the custody of asbestos Mr. Kivell encountered through his work at the UCC facility.

         Generally a principal is not liable for acts of an independent contractor in the performance of their contractual obligations.[3] The two exceptions to this rule are 1) The independent Contractor is involved in "ultrahazardous" work, or 2) The principal is in direct control over the manner in which the independent contractor completes the work.[4]

         The determination of "ultrahazardous" activity has been held by the Supreme Court of Louisiana to include activities that can cause injury to others, "even when conducted with the greatest prudence and care."[5] When the activity at issue is not ultrahazardous, the principal has no duty to ensure, through instructions or supervision, that the independent contractor performs its obligations in a reasonably safe manner.[6]

         In their initial motion in opposition Plaintiff conceded not to pursue a theory of vicarious negligence based on this "ultrahazardous" exception, and therefore this Court will address the second exception raised for the first time in Plaintiff's motion for reargument.

         The second exception is based on a determination that the principal was in direct control over the manner in which the independent contractor completed the work. In making the determination of whether a principal retained supervision or control over the contractor, it is the principal's right to exercise control that is of primary concern, not the supervision and control actually exercised.[7] A principal who exercises no operational control has no duty to discover and remedy hazards created by acts of its independent contractors.[8] Similarly contractual obligations to observe prevailing safety rules "does not signify requisite right of operational control necessary to vitiate the independent contractor relationship." [9] Courts have implied that direct liability would result if the principal required strict adherence to safety protocols by its independent contractors and the principal subsequently failed to follow its own requirements.[10]

         Plaintiff again points to UCC safety monitoring of contract personnel as evidence of control over Kiewit's contractual obligations. The Court in Davenport correctly points out that periodic safety inspections and pointing out violations does not constitute sufficient right to control so as to impose liability on the principal.[11]To hold any principal liable based on monitoring their contractors would lead to the undesirable result of condoning or ignoring unsafe activities.[12]

         Plaintiff points to contractual obligations of Kiewit to perform projects as directed by UCC as evidence of the right to control the independent contractor. The right to control is not a question of controlling the work to be performed, but rather the manner in which the independent contractor performs the work assigned.[13]Plaintiff concedes in their motion that UCC employees would instruct Kiewit to have a team to perform various side jobs on site. These side jobs were contractual obligations governed by "Job Instructions" to be provided by UCC. The "Job Instructions" contained in the contract provide description and scope of work to be completed, cost accounting, and other details. Neither the "Job Instructions" nor Mr. Kivell's testimony indicate that UCC retained the right to control the manner in which Mr. ...

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