IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DANIELLE TETTEH, Individually
and as Administrator of the Estate
of DANIEL L. JONES, deceased,

Plaintiff,

V. C.A. No. N14C-08-023 ASB

ALCATEL-LUCENT USA, INC.,
et al.,

Defendants.

MEMOR`ANDUM OPINION AND ORDER

Submitted: August 25, 2016
Decided: August 31, 2016

Upon Considemtion ofDefena’ant’s Motionfor
Summary Judgment, GRANTED.

Beverly L. Bove, Esquire, LaW Offlce of Beverly L. Bove, Wilmington, Delaware,
and Jackalyn A. Olinger, Esquire, Maune, Raichle, Hartley, French & Mudd LLC,

St. Louis, MO. Attorneysfor Plaintijj%.

John C. Phillips, Jr., Esquire, Phillips, Goldman & Spence, P.A., Wilmington,
Delaware. Attorneyfor Defendant.

MEDINILLA, J.

INTRODUCTION

Daniel Jones Was an employee of Western Electric Company. Defendant
AT&T Corp. is the former corporate parent of Western Electric Company.
Plaintiff Danielle Tetteh, individually and as administrator of the Estate of Daniel
Jones, seeks to hold AT&T liable under the Restatement (Second) of Torts,
§ 324A, for Daniel Jones’ alleged asbestos-related Work injury. AT&T moves for
summary judgment. Having considered all pleadings and lengthy oral arguments
heard on August 25, 2016, for the reasons stated below, Defendant’s Motion for
Summary Judgment is GRANTED.

FACTS AND PROCEDURAL BACKGROUND

Daniel Jones (“Jones”) Was employed by Western Electric Company
(“WECO”) from approximately 1973 to 1989, at WECO’s Norcross, Georgia,
cable and Wiring manufacturing plant.l During the relevant time period, WECO
Was a Wholly-owned subsidiary of Defendant AT&T Corp. (“AT&T” or
“Defendant”).Z WECO manufactured and/or supplied the equipment used by the

local Bell Operating Companies and AT&T’s Long Lines division to provide

' Daniel Jones’ Social Security Admin. Earnings Record Info. at 6, EX. 3 to Pl.’s Am. Mem.
Opp’n.

2 Ralph V. Collipi, Jr.’s Aug. 24, 2015 Aff. 1[ 3, Ex. l to Def.’s Mot. Summ. J.

telephone service throughout the United States, and was among the nation’s largest
manufacturing companies3

There is no evidence that J ones was at any time supervised by or reported to
any AT&T personnel. WECO had its own Safety and Medical Departments,
which coordinated WECO’s occupational health program and employed hundreds
of safety personnel;4 this included dozens of industrial hygienists that reported to a
Director of Industrial Hygiene.5 In contrast, AT&T’s Safety Department consisted
of two people, neither of whom was an industrial hygienist.6 At all relevant times,
WECO was, and viewed itself as, responsible for the workplace safety of its own
employees and implementation of its safety program, and did not delegate or
surrender that responsibility to AT&T, its corporate parent.7

Notably, WECO’s Medical Department “published policy guidelines that
required local evaluation and implementation by the health and safety

professionals at each Western Electric manufacturing plant.”8 While AT&T

31¢1. 1111 3-4.

414 1111 5_6, 8, 12,18-19.
51¢1. 1116,10,12,18_19.
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71a 1120.

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provided safety-related recommendations and guidance to its subsidiaries, AT&T
did not operate its subsidiaries’ businesses or supplant their safety programs

While employed by WECO, Jones Worked in the Stranders, Final Test,
Scrapers, and Tool Cleaning departments, and drove a forklift. Jones allegedly
inhaled, ingested and otherwise absorbed asbestos-containing fibers emanating
from various products, including fiber optic cables, switches, insulation, sheathing,
Wiring, lathes, asbestos cloth, floor tile, pipe insulation, talc and pulp.9 Jones also
used “heat gloves” When cleaning tools at WECO’s Norcross plant.10

Jones Was diagnosed With mesothelioma He received benefits pursuant to
Georgia’s Worker’s Compensation statute. Jones died on August 18, 2012.ll

Plaintiff Danielle Tetteh (“Plaintiff’), individually and as administrator of
the Estate of Daniel Jones, filed a Complaint on August 4, 2014. She seeks to hold
AT&T liable under the Restatement (Second) of Torts, § 324A, for Jones’ Work-
place injury, allegedly caused by exposure to asbestos.12 Specifically, Plaintiff

alleges that AT&T undertook to provide services to WECO and negligently

9 Compl. 11 3(a).
10 Larry K. Walker’s Apr. 22, 2015 Dep. at ll7:6-l7, EX. 4 to Pl.’s Am. Mem. Opp’n.
ll Compl. 11 8.

‘2 ld. 11 50.

performed those services, thereby causing Jones to develop mesothelioma.]3
AT&T argues there is no basis under Georgia law to support this legal theory.

AT&T filed their Motion for Summary Judgment and Memorandum in
Support Thereof` approximately one year ago, on August 27, 2015. Plaintif`f"s
Memorandum in Opposition Was filed on September 18, 2015, and an amended
version Was filed on September 21, 2015. AT&T’s Reply Was filed on October 12,
2015. AT&T’s motion Was originally scheduled to be heard in March 2016. Both
parties admitted responsibility for the various continuances that have occurred in
the last year.

Oral arguments on AT&T’s motion Were heard on August 25, 2016. At oral
arguments, Plaintif`f` requested an extension of the discovery deadline in order to
have more time to take the deposition of` a Witness.14 The Court denied Plaintif`f"s
request. After the Court also indicated it Would not be ruling from the bench,
AT&T expressed some concern With time constraints, as the case is currently
scheduled With the October 2016 trial group. AT&T therefore sought to move the

trial date, Which Plaintiff` opposed. The Court denied AT&T’s request.

Accordingly, the matter is ripe for review.

'3 Id. 1111 44-72.

14 Def`endant’s Motion for Summary Judgment and Memorandum in Support Thereof Was filed
August 27, 2015. Until oral arguments on August 25, 2016, no request Was made by Plaintiff’s
counsel to address any discovery issues, nor did counsel provide anything to this Court to
address any failure on the part of AT&T to make Witnesses available for depositions

STANDARD OF REVIEW

Superior Court Civil Rule 56 mandates the granting of summary judgment
upon a showing by the movant 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.” 15 “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.”16 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.”17 In considering the motion, “[a]ll
facts and reasonable inferences must be considered in a light most favorable to the

sslS

non-moving party. However, courts should not “indulge in speculation and

conjecture; a motion for summary judgment is decided on the record presented and

not on evidence potentially possible.”19

‘5 super. ct. Civ. R. 56(e).

16 Quality Elec. Co., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488 (Del. 1995). See also
Moore v. Sl`zemore, 405 A.2d 679, 681 (Del. 1979); Super. Ct. Civ. R. 56(e).

" Ebersole v‘ Lowengmb, 180 A.zd 467, 470 (Del. 1962).
‘8 Nun v. A. C. & S. Co., lnc., 517 A.2d 690, 692 (Del. super 1986).

'9 In re Asbestos Litz`g., 509 A.2d 1116, 1118 (Del. Super. 1986) ajj"a' sub nom. Nl`colet, Inc. v.
Nutt, 525 A.Zd 146 (Del. 1987).

ANALYSIS

The parties agree that Georgia law controls. Both sides also agree that there
is little Georgia case law that addresses the application of § 324A of the
Restatement (Second) of Torts as alleged here_-i.e., whether a parent corporation
assumed the duties that its subsidiary owed to the subsidiary’s employees and then
negligently breached/performed those duties. While it is unclear if Plaintiff’s
motive here is to circumvent the exclusive remedy bar under Georgia’s Worker’s
Compensation statutory scheme, the question before this Court is whether § 324A
can be used to impose a new duty on a parent company. Especially where there is
no precedent under Georgia law to support Plaintiff’s theory, and on this record,

the answer must be no.

“The existence of a legal duty is a question of law for the court.”zo The issue
is therefore appropriately considered at the summary judgment stage.21 Plaintiff
argues that § 324A_Liability to Third Person for Negligent Performance of

Undertaking_applies to the facts of this case. This Court disagrees

20 Garner And Glover Co. v. Barrett, 738 S.E.Zd 721, 723 (Ga. Ct. App. 2013) (quoting Rasm`ck
v. Krishna Hosp., Inc., 713 S.E.2d 835, 837 (Ga. 2011)).

21 See Rasm'ck, 713 S.E.Zd 835 (affirming summary judgment ruling that no duty existed). See
also Garner And Glover Co., 738 S.E.Zd 721 (reversing denial of summary judgment regarding
assumption of duty); Hya'e v. Schlotzsky's, Inc., 561 S.E.Zd 876 (Ga. Ct. App. 2002) (afflrming

summary judgment ruling that no duty was assumed).

The Restatement (Second) of Torts, § 324A has been adopted in Georgia22

and provides:

One Who undertakes, gratuitously or for consideration, to
render services to another Which he should recognize as
necessary for the protection of a third person or his
things, is subject to liability to the third person for
physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the
risk of such harm, or

(b) he has undertaken to perform a duty owed by the
other to the third person, or

(c) the harm is suffered because of reliance of the other
or the third person upon the undertaking23

“Section 324A of the Restatement Will not support a cause of action based
on the theory that a party Who did not undertake to render services should have

done so.”24 The failure to act is not an undertaking, as asserted by Plaintiff; rather,

there must be an affirmative act.25 Liability is imposed pursuant to § 324A “only

Where a party has in fact undertaken to render services. It does not impose liability

22 Huggins v. Aetna Cas. & Sur. Co., 264 S.E.2d 191, 192 (Ga. 1980) [hereinafter Huggins I].

23 Resratemem (second) Of rods § 324A (1965).

24 Davenport v. Cummins Alabama, lnc., 644 S.E.2d 503, 509 (Ga. Ct. App. 2007). See also
Finley v. Lehman, 463 S.E.Zd 709, 710 (Ga. Ct. App. 1995) (no liability Where defendant did not
“render any services to decedent's employer Which he should have recognized as necessary for

the protection of [decedent].”).

25 Davenpor¢, 644 s.E.zd at 509.

based upon the failure to render services Which should have been undertal<en.”26

Therefore, the first step is to determine if AT&T has undertaken to render services.

AT&T acknowledges that its role and relationship With WECO Was that, as a
parent company, it provided safety-related recommendations and guidance to this
subsidiary. It maintains that it did not operate its subsidiaries’ businesses or
supplant their safety programs, and characterizes its actions as “normal and

. . . . 2
ordinary activities of a corporate parent.” 7

Plaintiff`s response in the briefs and during oral argument Was replete With
references to the relationship of Jones and/or AT&T to “Bell Systems” and “Bell
Laboratories,”28 and a belief that had Plaintiff been able to take a discovery
deposition of a material Witness, the connection for purposes of imputing liability
on AT&T could be established29 Jones Was an employee of WECO. He received
Worker’s compensation benefits from WECO. On this record, Plaintiff fails to
adequately describe any connection between Jones and Bell Systems or

Laboratories.

More importantly, even if Plaintiff’s connection to AT&T/Bell/WECO could

be established, Plaintiff fails to demonstrate that AT&T agreed to “render services”

26 Finzey, 463 s.E.zd at 710 (ciration omined).
27 Def.’s Mot. Summ. J. at l.
28 It is unclear from the record if these are legally recognized corporate entities.

29 See supra note 14 and accompanying text.

to WECO for Jones’ safety and then performed those services negligently. As
such, Plaintiff fails to show how AT&T, as a corporate parent, assumed a duty for
the safety of WECO’s employees, including Jones.

It is not sufficient to claim that the provision of recommendations or
guidance to its subsidiaries regarding workplace safety is the same as “rendering
services” such that AT&T has assumed a duty for their safety under § 324A. The
record is clear that Jones’ employer, WECO, controlled and was responsible for
the workplace safety of its own employees and did not surrender that responsibility
to AT&T as its parent corporation

The Court relies, in part, on Hyde v. Schlotzky, where the Georgia Court of
Appeals held that the provision of minimum standards did not constitute
assumption of the duty by the franchisor under § 324A.30 Albeit in the context of a
franchisor/franchisee relationship as it related to Standards regarding cleanliness,
periodic inspections and evaluations of compliance with those standards, important
to the Hya’e analysis was the court’s consideration of what involvement the

franchisor had in the day-to-day operations of the franchisee’s business.31

30 561 S.E.2d at 878 (“[W]e do not agree that testimony of [defendant’s] executives, or any other
evidence relied on by appellants, demonstrates that [defendant] undertook the duty of insuring
compliance with hygiene regulations following a violation to such an extent as to render it liable

under a “negligent undertaking” theory.”).

31 Id. (tinding evidence did not “show that [defendant] undertook a duty to involve itself in the
day-to-day operation of the restaurant or that it assumed the right to control the manner of
executing the work in the restaurant.”).

Just as in Hyde, and under Georgia laW, there is no evidence that AT&T
controlled the day-to-day-operations of the plant Where Jones Worked. To the
contrary, even Plaintiff’s Witnesses, Jones’ co-Workers, testified that WECO was
responsible for the safety program and managed the safety of its employees This
is evidenced by the fact that they had sizeable Safety and Medical Departments,
With dozens of industrial hygienists on staff; AT&T’s Safety Department consisted
of two employees and neither Were hygienists.

Even if the evidence supported a finding that AT&T undertook such a duty,
“a voluntary undertaking amounts to liability only if one or more of the additional
requirements stated in § 324A is satisfied.”32 Plaintiff fails to meet any of the three
additional requirements under § 324A(a), (b) or (c).

As to subsection (a), “Georgia courts have consistently held that this
subsection is applicable only ‘When a nonhazardous condition is made hazardous
through the negligence of a person Who changed its condition or caused it to be
changed.”’33 Section 324A(a) “applies only in those situations Where the actor's
negligent performance of his duty or undertaking exposes the injured person to a

greater risk of harm than had existed previously.”34 In other Words, “the mere

32 Maier v. Green Eyes USA, lnc., 2011 WL 4625979, at *3 (s.D. Ga. sept 30, 2011).
33 1a (quoring BP Expl. & oil, ma v. Jones, 558 s.E.zd 398, 405 (Ga. ct. App. 2001)).

34 Huggms v. standard Fire lns. Co., 304 s.E.2d 397, 398 (Ga. Ct. App. 1983) [hereinafrer
Huggins I]].

10

failure to abate a hazardous condition_without making it Worse_does not trigger
the application of Section 324A(a).”35 A plaintiff must produce “evidence that [the
defendant] affirmatively increased the risk of harm.”36

Plaintiff concedes that the claims are not alleged under subsection (a).
Moreover, there is no evidence suggesting that any safety recommendations or
guidance AT&T may have provided to WECO somehow transformed a
nonhazardous condition at the Norcross plant into a hazardous condition, or
exposed Jones to a greater risk of harm than that Which previously existed. This
Court therefore finds that Plaintiff fails to establish her claim under subsection (a),
as there is no evidence that AT&T affirmatively increased the risk of harm to
Jones.

As to subsection (b), the subsection is limited to “those situations Where the
alleged tortfeasor's performance is to be substituted completely for that of the party
on Whose behalf the undertaking is carried out.”37 “Even Where the negligence of

the actor does not create any new risk or increase an existing one, he is still subject

to liability if, by his undertaking With the other, he has undertaken a duty Which the

35 Herrmg¢on v. Deloris Gaulden, 751 s.E.zd 813, 816 (Ga. 2013).
36 lai

37 Huggms 11, 304 s.E.zd at 398.

ll

other owes to the third person.”38 A plaintiff must establish that the defendant
“completely undertook to perform duties,” such as “maintaining safe equipment
and preventing injuries,” that were “originally owed by [p]laintiffs employer.”39
WECO recognized its continuing duty to ensure the health and safety of its
employees; its Medical Department published policy guidelines for local
implementation at each WECO plant.40 These publications included guidelines
“regarding the identification and control of potential asbestos exposures” at
WECO.41 Each WECO plant, including the Norcross plant at which J ones worked,
had a Medical Director who oversaw implementation of medical programs at the
particular plant.42 Notably, health and safety issues were not even managed from
WECO’s New York City headquarters, but rather, they “had to be managed on-
site” because the manufacturing processes varied across the plants.43 Each WECO
plant also employed a group of industrial hygienists, who were tasked with

identifying and investigating potential hazards at their particular plant.44 This

38 Restatement (Second) of Torts § 324A, cmt. d (1965).

39 Mamnez v. Rycars Cons¢., LLC, 2011 WL 4625989, at *10 (s.D. Ga. sept 30, 2011).
40 Ra1ph v. Collrpi, Jr.’s Aug. 24, 2015 Aff. 11 7, Ex. 1 to Def.’s Mot. summ. J.

41 Id_

42 Id. 11 8.

43 Ia'. (emphasis added).

441¢1.1111.

12

Court therefore finds that Plaintiff fails to establish her claim under subsection (b),
as there is no evidence that AT&T completely undertook to perform the workplace
health and safety duties that WECO owed to its employees.

As to Subsection (c), a plaintiff must show that the defendant “realized his
undertaking to render services . . . was necessary for [p]laintiffs protection” and
the plaintiff “or his employer relied upon [d]efendant's competent performance of
the undertaking to provide for his safety.”45 “Under Georgia law, reliance under §
324A(c) must be shown by a ‘change in position.’ This required change in
position can be satisfied by evidence that ‘the employer had neglected or reduced
its own safety program because of [the defendant’s] efforts."'46 Section 324A(c)
“requires proof of actual reliance by either the employee or the employer on the

[defendant’s] undertaking In addition, of course, it must be Shown that such

7

. . . . . 4 .
reliance was the proximate cause of the employee's lnjuries.” “Georgia law

allows a jury to draw this conclusion based on circumstantial evidence.”48
There is no evidence in this record that there was a change in position by

WECO such that WECO neglected or reduced its safety program because of any of

the recommendations that were provided by AT&T. Again, WECO had its own
45 Marrinez, 2011 WL 4625989, at *10.
46 Maier, 2011 WL 4625979, at *7 (citations omiued).

47 Huggins 11, 304 s.E.2d at 398.

48 Maier, 2011 wL 4625979, at *7.

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Safety and Medical Departments49 and every WECO plant had a team of industrial
hygienists tasked with identifying and investigating hazards.50 While WECO had
dozens of industrial hygienists, AT&T’s Safety Department had no industrial
hygienists on staff.S] WECO also had annual meetings for its industrial hygiene
staff where they would discuss issues arising within WECO’s manufacturing
plants.52 Plaintiff fails to establish her claim under subsection (c), as there is no
evidence that WECO or Jones actually relied on AT&T’s recommendations

In sum, Plaintiff cannot demonstrate that AT&T assumed a duty of care
otherwise owed by Mr. Jones’ employer (WECO). Even if this could be
established, by the connections Plaintiff attempted to prove through references to
“Bell” or otherwise, Plaintiff fails to demonstrate that AT&T negligently
performed or breached that duty. There is no evidence that any breach or negligent
performance of an alleged duty by AT&T somehow increased the risk of harm to
Jones, or that AT&T completely substituted and undertook a duty that WECO
owed to Jones, or that WECO actually relied on any alleged undertaking by

AT&T.

49 Ralph v. collipi, Jr.’s Aug. 24, 2015 Aff. W 5, 12, EX. 1 to Def.’s Mot. Summ. J.
50 ld. 1111.
5'1¢1. 1119.

521¢1. 1117.

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CONCLUSION

Plaintiff fails to provide any evidence creating a genuine issue of material
fact With respect to Whether AT&T could be held liable for Jones’ Work-place
injury based on the “negligent performance of an undertaking” under § 324A of the
Restatement (Second) of Torts. AT&T did not undertake to render services to
WECO Which it should have recognized as necessary for the protection of
WECO’s employees, including Jones. Because Plaintiff has not presented
evidence from Which a jury could reasonably infer, Without undue speculation, that
AT&T assumed, and then negligently breached, WECO’s duty to J ones While he
Was Working for WECO, summary judgment is GRANTED in favor of Defendant
AT&T Corp.

IT IS SO ORDERED.

   
 

Judge Vivian L. Medinilla

oc: Prothonotary

cc: All Counsel on Record (via e-filing)

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