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Rath v. 3M Co.

Superior Court of Delaware

April 18, 2019

WERNER RATH, Plaintiff,
v.
3M COMPANY, et al. Defendants.

          Submitted: March 27, 2019

         Upon Defendant Delmarva Power & Light Company's Motion for Summary Judgment, GRANTED.

         Upon Defendants Four Star Oil & Gas Company, TRMI-H LLC, and Texaco Inc. 's Motion for Summary Judgment, GRANTED.

         Upon Defendant Sunoco (R&M), LLC's Motion for Summary Judgment, GRANTED.

          Thomas C. Crumplar, Esq., Jacobs & Crumplar, P.A., Wilmington, Delaware; Donald P. Blydenburgh, Esq. and Patrick I. Andrews, Esq. (argued), Levy Konigsberg, LLP, New York, New York. Attorneys for Plaintiff.

          Robert S. Goldman, Esq. (argued) and Lisa C. McLaughlin, Esq., Phillips, Goldman, McLaughlin & Hall, P.A., Wilmington, Delaware. Attorneys for Defendant Delmarva Power & Light Company.

          James F. Harker, Esq. (argued), Cohen, Seglias, Pallas, Greenhall & Furman, P.C., Wilmington, Delaware. Attorney for Defendants Four Star Oil & Gas Company, TRMI-HLLC, and Texaco Inc.

          Francis Gondek, Esq. and Nicholas E. Skiles, Esq. (argued), Swartz Campbell LLC, Wilmington, Delaware. Attorneys for Defendant Sunoco (R&M), LLC.

          OPINION

          Vivian L. Medinilla, Judge.

         INTRODUCTION

         This is an asbestos case where the Court is asked to consider whether landowner defendants owe a duty of care to an employee of a contractor who alleges exposure to asbestos while working at their various industrial sites.[1] Werner Rath[2]("Rath") filed his respective claims against Delmarva Power & Light Company ("DP&L"), Four Star Oil and Gas Company, TRMI-H LLC, and Texaco Inc. ("Getty"), and Sunoco (R&M), LLC ("Sunoco") (collectively "Defendants"). Defendants move for summary judgment under Superior Court Civil Rule 56 arguing no duty is to owed him as a matter of law. For the reasons stated below, Defendants' Motions for Summary Judgment are GRANTED.

         FACTUAL AND PROCEDURAL BACKGROUND

         Factual Background[3]

         Rath worked as a career union carpenter from 1968 until his retirement in 1995. During this time, he was hired by Catalytic, Inc. ("Catalytic") to work at multiple locations in Delaware. These locations include, but are not limited to the DP&L facility in Delaware City, [4] the Getty oil refinery in Delaware City, and Sunoco's chemical plant in Claymont.[5] It is undisputed that while working at these facilities, Rath's sole responsibility was to erect and disassemble scaffolding, which included working with wood and metal materials.

         Also undisputed is that all other employees with whom he worked, including insulators, pipefitters, electricians, boilermakers, welders, and laborers, were also employed by Catalytic. As to all three Defendants, Rath alleges that he was exposed to asbestos through the work of these other tradesmen working around him. Specifically, that his scaffolding work required him to come into contact with insulation and piping at Defendants' facilities.[6] After constructing the scaffolding, Rath would "stand-by" as the other trades worked around him, which included insulators and pipefitters. He was able to recall generally his work at these sites but was unable to identify the composition of the products or the maintenance history of the equipment with which the other trades worked.[7]

         Rath testified that the main facilities where he worked included the Getty refinery and the Sunoco plant.[8] As to Getty, he testified that he worked there from 1968 to 1995, although not every year during that time.[9] More specifically, he testified that he worked there in November and December during shutdowns, and he would generally work there for six to eight weeks.[10] He also testified that this work totaled one or two times a year, but it may have been as many as three times.[11] As to Sunoco, he stated that he worked at this plant beginning in 1968 until the late 1980s or early 1990s.[12] He worked at this plant approximately once or twice a year.[13]Rath was unable to specify how long he worked at the plant during a particular visit, testifying that it could range from one week to three weeks.[14] Although there are affidavits from DP&L and Catalytic representatives that Catalytic was not contracted to perform work at DP&L's Delaware City facility, Rath testified to working there from around 1969 or 1970 to 1995.[15] As to the three sites, Rath testified that the chain of command went from the landowner to the general foreman, and then to the foreman to the workers.[16] He was not to communicate with supervisors from the various plants.[17]

         Procedural Background

         Rath originally filed his Complaint alleging asbestos exposure from the manufacturers of asbestos-containing products and while working at various facilities including DP&L, Getty, and Sunoco throughout his career as a carpenter. Although his Complaint was amended multiple times to include additional claims and defendants, the claims against these Defendants remained the same. The specific allegations contained in three counts of the Third Amended Complaint are based on the following theories: "Premises Liability - Negligence," "Premises Liability/Ultra-Hazardous Activity," and "Premises Liability - Willful and Wanton Conduct."[18]

         DP&L, Getty, and Sunoco filed their Motions for Summary Judgment. All responses and replies were filed by March 4, 2019. The Court held oral arguments on March 27, 2019. Having considered the arguments in the parties' filings and at oral argument on the Motions, the issue is ripe for decision.

         STANDARD OF REVIEW

         Delaware Superior Court Civil Rule 56 mandates the granting of summary judgment where the moving party demonstrates that "there is no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law."[19] "Once the movant meets its burden, then the burden shifts to the non-movant to demonstrate sufficiently an existence of one or more genuine issues of material fact."[20] Summary judgment will not be granted if there is a material fact in dispute or if it "seems desirable to inquire thoroughly into [the facts] in order to clarify the application of the law to the circumstances."[21] In considering the motion, "[a] 11 facts and reasonable inferences must be considered in a light most favorable to the non-moving party."[22] However, the Court shall not "indulge in speculation and conjecture; a motion for summary judgment is decided on the record presented and not on evidence potentially possible."[23]

         CONTENTIONS OF THE PARTIES

         The Defendant landowners argue that no duty of care is owed to Rath. They rely on a series of cases to include In re Asbestos Litigation (Roca)[24] In re Asbestos Litigation (Wooleyhan) ("Wooleyhan"), [25] In re Asbestos Litigation (Wooleyhan) ("Wooleyhan II"), [26] In re Asbestos Litigation (Wenke)[27] and In re Asbestos Litigation (Helm).[28] First, they argue that no duty is owed to an employee of an independent contractor if he alleges exposure to asbestos through the work of the same independent contractor and its employees.

         In the alternative, the landowner Defendants argue that under the common law and the provisions of the Restatement (Second) of Torts (the "Restatement"), they are also entitled to relief because Rath has not presented evidence to establish the applicability of any exceptions that may expose the landowner to liability to survive summary judgment. Additionally, Defendants argue that to the extent Plaintiff is bringing a premises liability claim under § 343 of the Restatement, he has waived this claim, and/or is unable to prove the required elements as a matter of law.[29]

         Rath similarly relies on these cases, as well as Rabar v. E.I. duPont de Nemours & Co., Inc.[30] but asks the Court to reach a different conclusion. He argues that he should be classified as a plaintiff for whom a duty of care is owed. He argues that he has presented evidence to trigger the applicability of the exceptions under the common law and the Restatement, which renders Defendants liable for his asbestos-related injuries.

         DISCUSSION

         In Delaware, the general common law rule in landowner liability provides that "neither an owner nor general contractor has a duty to protect an independent contractor's employee from hazards created by the doing of the contract or the condition of the premises or the manner in which the work is performed[.]"[31] This general rule is similarly found in § 409 of the Restatement and states that "[e]xcept as stated in §§ 410-429, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants."[32] There are exceptions to the general rule found under the common law and derived from various sections of the Restatement, including §§ 324A, 414, and 422.[33]

         I. Landowner Liability in Asbestos Litigation

         The parties rely on a series of cases that have identified and clarified the duty of care that a landowner owes to employees of independent contractors who are hired to perform work on their premises specifically in asbestos litigation.[34] To be precise, the parties do not dispute the rationale of the holdings of Roca, Wolleyhan (I and II)t Wenke and Helm. Instead, they argue about nuances in the rulings to support their respective positions. Therefore, they ask the Court to make a determination as to whether Rath falls into a category of employee for which no duty is owed as a matter of law or whether he is permitted to invoke the provisions found in the various sections of the Restatement that would potentially hold the Defendant landowners liable for his alleged exposure to asbestos. To do so requires an understanding of the respective cases in order to determine where Rath fits into the matrix.

         A. Roca

         In 2002, although factually different from this case, the Roca decision provided the framework that served to develop more recent decisions of premises and landowner liability in asbestos litigation. In Roca, the plaintiff worked as a union pipefitter for different independent contractors.[35] He alleged he was exposed to asbestos and asbestos-containing materials while working at various sites and that the landowners were responsible under the peculiar risk doctrine found in §§ 413, 416, 427 of the Restatement.[36]

         The Court explained that under Chapter 15 of the Restatement, generally landowners are not liable to an independent contractor's employees working on their premises.[37] The Court further determined that employees of an independent contractor are not members of the protected class under any of the exceptions to this general rule.[38] In referencing § 409 of the Restatement, the Court explained that the "employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants."[39]

         The Court considered various sections of the Restatement, Comments and Reporter's Notes to support its determination that contractors' employees are not included in the class of "others."[40] It held, and the Supreme Court affirmed, [41] that the plaintiff was not "a member of the protected class of 'others' for purposes of the peculiar risk doctrine."[42]

         B. Wooleyhan I

         In 2005, following the Roca decision, Wooleyhan I addressed landowner liability to employees of contractors.[43] There, the plaintiffs were employees of independent contractors hired by landowner defendants to perform work on their premises.[44] The case involved two types of employee plaintiffs who allegedly had been exposed to asbestos.

         The first set alleged direct exposure through their own work. The second set of employees were painters, electricians, or telephone linemen, "who did not work with asbestos but were exposed to asbestos dust during the course of their work."[45]Those that did not work with asbestos but were exposed during the course of their work sought relief under various sections of the Restatement, including §§ 3 24A[46]and 343.[47]

         The Court granted summary judgment against those who alleged direct exposure through their own work. It held that "Chapter 15 provides a remedy for a third person, that is, for 'another,' but not for a contractor or his employees who have contracted to perform the work which causes the injury."[48] As to these plaintiffs, the "discussion of Chapter 15 liability ends here, "[49] no exception to the general rule was applicable, and the Court granted summary judgment.

         The Superior Court, however, denied summary judgement as to the second group of plaintiffs under § 343 of the Restatement. These are employees who did not work with asbestos but were exposed to asbestos dust during the course of their work. As to this group, the Court explained that the plaintiffs "who performed work such as painting are 'others' for the purposes of Chapter 15 of the Restatement" and their claims are viable.[50] These plaintiffs raised claims under §§ 410 and 414 of the Restatement alleging defendant maintained control of the work, [51] § 3 24A of the Restatement alleging defendant DuPont assumed responsibility for the safety of the job site, and § 343 of the Restatement, invoking the safe workplace doctrine against multiple defendants.[52] The Wooleyhan I Court held that no liability attached under §§ 324A, 410, and 414 and granted summary judgment.[53] However, the Court denied summary judgment under § 343 and stated that genuine issues of fact remained regarding the landowners' knowledge of the hazards of asbestos exposure.[54] In consolidated appeals, both sides requested Supreme Court review in Wooleyhan II

         C. Wooleyhan II

         In 2006, the Court considered the Superior Court's denial of its summary judgment motion under § 343 of the Restatement with respect to those that did not work directly with asbestos but were exposed to asbestos dust during the course of their work.[55] In the first part of its order, the Delaware Supreme Court found that the Superior Court applied the incomplete legal standard under § 343, vacated the judgment, and remanded the case.[56] Specifically, the Supreme Court determined that § 343 requires more than a mere finding of the landowner's knowledge regarding the existence of a latent hazard on its premises to deny summary judgment.[57]

         The Supreme Court also addressed the appeal from those who alleged direct exposure through their own work.[58] The Supreme Court held:

If the independent contractor, through its work, causes the condition that might otherwise give rise to landowner liability under § 343 of the Restatement, employees of that independent contractor have no basis to claim that the landowner is liable for injuries resulting from that condition.... Accordingly, the employees of an independent contractor may not invoke § 343 of the Restatement to establish landowner liability for injuries caused by conditions created by their independent contractor-employer.[59]

         Thus, the Supreme Court affirmed the holding below. Those who alleged direct exposure through their own work were precluded from invoking the provisions under § 343 of the Restatement to establish landowner liability for injuries caused by conditions created by their own independent contractor-employer.[60] No duty is owed to this employee plaintiff as a matter of law.

         D. Wenke and Helm - Group A and Group B Plaintiffs

         After both Wooleyhan decisions, there remained issues regarding landowner liability in asbestos litigation. In 2007, the Superior Court issued the companion cases of Wenke and Helm to address said issues. In Wenke and Helm, the Court was asked to address lingering questions regarding the applicability of the provisions of the Restatement for two types of plaintiffs in landowner liability claims.[61] The Court defined them as group A and B plaintiffs.

         Group A plaintiffs consist of "employees of independent contractors who did not work directly with asbestos (such as painters or other tradesmen), but allege they were exposed to asbestos on the defendants' premises while working alongside other contractors who were working directly with asbestos."[62] These plaintiffs "are injured as a result of the work (and negligence) of others including, arguably, the landowner."[63] Group B plaintiffs "are employees of independent contractors who worked directly with asbestos while on the defendants' premises, such as asbestos installers or asbestos insulators, "[64] and are "injured by the very hazards created by their own work on the property-the work they were contracted by the landowner to perform."[65]

         The Wenke decision focused on claims brought by group B plaintiffs, and granted summary judgment in favor of the landowner defendant. It found that" Wooleyhan I and Wooleyhan II both stand for the proposition that group B plaintiffs may not hold landowners accountable for injuries sustained as a result of their work with asbestos while on the landowner's premises."[66] It is clear that Wenke echoed the rationale of both Wooleyhan decisions. It noted that Wooleyhan I rejected plaintiffs' claims under any Chapter 15 exception to the general rule, and that Wooleyhan II affirmed this, and concluded that a group B plaintiff could not pursue claims under § 343.[67]

         Wenke similarly considered the plaintiffs' theory of liability under § 324A, and the Court found it failed for the same reasons as the other claims.[68] In particular, the Wenke Court noted that the provisions of § 324A apply to third persons, and this "reference to 'third persons' does not include employees of the contractor whose work creates the condition that causes the injury."[69] Thus, the Court found that the landowner did not owe a duty to the plaintiffs "to protect them from the hazards of their own job."[70] Relying on Roca and both Wooleyhan decisions, the Court in Wenke held that the plaintiffs' claims failed because they were exposed to asbestos "as a result of their own work or their employers' work with asbestos."[71] Summary judgment was granted in favor of the defendants.[72] Helm was issued on the same day and focused on the group A plaintiffs.

         II. Rath is Not a Group A Plaintiff under Helm

         Rath argues he should be permitted to invoke the provisions found in the various sections of the Restatement that would potentially hold the Defendant landowners liable for his alleged exposure to asbestos. To survive summary judgment, he must argue that he should be considered a group A plaintiff under Helm. He also argues that Rabar is more applicable to his case. This Court disagrees.

         Rabar is not an asbestos case. The Court there addressed landowner liability in a construction site accident involving multiple-employers. The plaintiff sought to hold duPont "liable under the doctrine of negligence per se for alleged violations of certain occupational safety regulations promulgated by the Delaware Department of Labor... ."[73] That is not at issue here. Furthermore, the Court in Rabar determined summary judgment was inappropriate because the record supported that duPont had assumed the role of the general contractor.[74] The Rabar Court found there were issues of material facts as to work area control and assumption of safety regulations.[75] Those facts do not exist here as to any of the Defendant landowners. Rath incorrectly relies on Rabar to argue that the Defendant landowners controlled the manner and method of his work.

         Helm, on the other hand, is an asbestos case. There, the Court addressed the claims of group A plaintiffs that allows them to impose duties on landowners under § 343 and other provisions of the Restatement and it analyzed the exceptions to the general rule.[76] The Helm Court ultimately granted summary judgment in favor of the landowner defendant, finding that the landowner defendant did not owe a duty to the plaintiff under any of the three exceptions to the general rule that a landowner is not liable.[77] Those recognized exceptions to the general rule are that "liability may be imposed when the landowner or general contractor: (1) exercises active control over the manner and method of the independent contractor's work, (2) voluntarily assumes responsibility for safety, or (3) maintains possessory control over the work area during the work."[78] The exceptions are derived from §§ 410, 414, and 422 of the Restatement alleging defendant maintained control of the work and possessory control of the work area, [79] and § 324A of the Restatement alleging that defendant landowner assumed responsibility for safety of the job site.

         That said, Helm is not applicable here. First, Rath is distinguishable from the Helm plaintiffs. The Helm case considered four separate plaintiffs who brought claims against multiple defendants.[80] These plaintiffs were employed by one contractor but there was evidence that other contractors or employers were also hired to work at the facilities at the same time.[81] These plaintiffs, who did not work directly with asbestos, were identified as group A plaintiffs because they were exposed to asbestos by working alongside of others who worked directly with asbestos.[82] Unlike in Helm, there is no evidence presented that Rath was exposed to asbestos by other contractors. Here, Rath testified that all of the other trades working around him were employed by the same contractor-Catalytic.

         Even if Rath were qualified to invoke provisions of the Restatement and argue the exceptions to the general rule, this Court finds the record does not support a different outcome. First, this Court agrees with Defendant landowners that Rath failed to respond to the argument under § 343 and he has waived the right to invoke it. Nevertheless, his claim also fails to establish any of the following exceptions that would impose liability on the Defendant landowners.

         The record is highlighted below primarily to demonstrate why this case is distinguishable from Helm and more appropriately analyzed under Wooleyhan (/and II) and Wenke. Identifying the considerations under Helm reinforces the reasons why he is not a group A plaintiff who ...


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