      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JASON PATTON,                           )
      Plaintiff,                        )
                                        )
             v.                         )     C.A. No. N12C-01-177 CLS
24/7 CABLE COMPANY, LLC,                )
                                        )
      Defendant/Third-Party Plaintiff, )
DANELLA LINE SERVICES                   )
COMPANY, INC.,                          )
                                        )
      Defendant/Third-Party             )
      Defendant/Fourth-Party Plaintiff, )
MELCAR, LTD., INC., MALEC               )
CONSTRUCTION COMPANY, LLC, )
a Pennsylvania LLC, and SUSSEX          )
PROTECTION SERVICE, LLC,                )
      Defendants/Fourth-Party           )
      Defendants,                       )
                                        )
24/7 MID-ATLANTIC NETWORK,              )
LLC, 24/7 FIBER NETWORK,                )
LEVEL 3 COMMUNICATIONS,                 )
INC., and FIBERTECH NETWORKS, )
LLC,                                    )
      Defendants,                       )
                                        )
             v.                         )
DOUGLAS C. RILEY,                       )
                                        )
      Third-Party Defendant.            )

                                   ORDER

      On this 31st day of August, 2016, and upon Defendant Melcar Ltd., Inc.’s

(“Melcar”) Motion for Summary Judgment, it appears to the Court that:
         1.      This is a negligence action brought by Plaintiff Jason Patton

         (“Plaintiff”). Plaintiff filed this negligence action against nine defendants,

         including Melcar, seeking recovery for injuries he sustained on June 10,

         2011, resulting from a motor vehicle collision between Plaintiff and Douglas

         Riley (“Riley”) in the vicinity of a construction site on Route 13 in New

         Castle, Delaware. Plaintiff alleges that the collision was caused, inter alia,

         by Sussex’s failure to protect against and/or warn of the dangerous condition

         created by the construction activities in the median of Route 13, including

         the failure to close the crossover, or median break, connecting the

         northbound and southbound lanes of Route 13 and failure to use a flagger,

         and that Sussex is liable for his injuries, because it had control of the

         roadway in the area in which the collision occurred and was responsible for

         the work it subcontracted to perform, for taking all reasonable safety

         precautions at the worksite to protect the public, and for complying with the

         construction permit issued by the Delaware Department of Transportation

         (“DelDot”).

         2.      The Parties have stipulated to the following facts:1    At all times

         relevant, Defendant Danella Line Services Company, Inc. (“Danella”) was

         hired as the general contractor to provide Fibertech Networks, LLC


1
    See Stipulation of Facts (Trans. ID 58234718).


                                                 2
(“Fibertech”) with a conduit for fiber optic cable along a distance of Route

13 to connect to a splice box under the median of Route 13. Fibertech

obtained Permit No. NC-072-MIS (the “Permit”) in furtherance of this

project. Danella subcontracted portions of the work to three subcontractors,

who are also defendants, which include Melcar (directional drilling), Sussex

Protection Service, LLC, and Malec Construction Company, LLC (backhoe

work). At approximately 9:15 pm on the evening of June 10, 2011, as work

was being performed by Danella and several other contractors pursuant to

the Permit, third-party defendant Riley drove his Dodge Durango with his

wife and two sons on the median break, which had not been closed, from

northbound Route 13 in an attempt to cross over the southbound lanes to

reach a parking lot on the other side, and stopped at the stop sign before

driving across. Plaintiff was driving his motorcycle on southbound Route 13

when the collision between him and Riley occurred. As a result of this

collision, Plaintiff suffered injuries.

3.     On August 31, 2015, Melcar moved for summary judgment on

Plaintiff’s claims, arguing that there is no genuine issue of material fact that

could prevent summary judgment on its behalf, because there is no evidence

that Melcar owed any duty of care or proximately caused the accident.

Specifically, Melcar argues that it cannot be contended that, by virtue of its



                                      3
subcontract, it assumed responsibility for the safety of the entire jobsite and,

absent any evidence that it exercised actual control over or otherwise

assumed responsibility for the crossover, there is no basis for imposing such

a duty on it. Therefore, without any affirmative duty regarding the setup of

the job or to close the crossover, Melcar is not responsible for the alleged

dangerous condition. As to proximate cause, Melcar argues that there is no

evidence in the record that its equipment obstructed any of the drivers’

views or that anything it did or did not do proximately caused the accident.

4.    Plaintiff opposes Melcar’s Motion on the basis that Melcar

contractually assumed responsibility for the work area, including ensuring

the safety of workers and the public, for complying with all applicable safety

rules and permits, and for indemnification of Danella, as the general

contractor, for injuries. Plaintiff contends that, at the time of the collision

and during the time the worksite was set up, Melcar was working in

violation of the Permit and should have closed the crossover pursuant to

DelDOT’s case seven traffic control plan cited in the Permit. Therefore,

there are genuine issues of material fact with respect to control and

responsibility of the jobsite, which must go to the jury.

5.    On July 12, 2016, at the request of the Court, the Parties submitted

supplemental memoranda to assist the Court in determining, inter alia, the



                                    4
       issue of duty. Melcar argues that it had no duties beyond those established

       by its subcontract with Danella, which duties were limited to performing the

       directional boring under Route 13 and assuming responsibility for only the

       safety hazards it created by performing such work. On the other hand,

       Plaintiff argues that Melcar’s construction equipment used in the median

       impaired the public’s view in using the crossover and that Melcar assumed

       greater responsibilities than simply performing the directional boring,

       including the duty to take all reasonable safety precautions with respect to its

       work and to comply with all safety requirements.

       6.      The Court may grant summary judgment if “the pleadings,

       depositions, answers to interrogatories, and admissions on file, together with

       the affidavits, if any, show that there is no genuine issue as to any material

       fact and that the moving party is entitled to summary judgment as a matter

       of law.”2 The moving party bears the initial burden of showing that no

       material issues of fact are present.3 Once such a showing is made, the

       burden shifts to the non-moving party to demonstrate that there are material

       issues of fact in dispute.4 In considering a motion for summary judgment,

       the Court must view the record in a light most favorable to the non-moving


2
  Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
3
  Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
4
  Id. at 681.


                                                5
       party.5 The Court will not grant summary judgment if it seems desirable to

       inquire more thoroughly into the facts in order to clarify the application of

       the law.6 Where the defendant’s legal obligation arises by way of contract,

       summary judgment is improper “where reasonable minds could differ as to

       the contract’s meaning, a factual dispute results and the fact-finder must

       consider extrinsic evidence.”7

       7.     It is well-established that in order to maintain an action sounding in

       negligence that a plaintiff must demonstrate that (i) the defendant owed the

       plaintiff a duty of care; (ii) that the defendant breached that duty; and (iii)

       that the defendant’s breach was the proximate cause of the plaintiff’s injury. 8

       If the plaintiff fails to makes out a prima facie case of negligence, the

       defendant is entitled to judgment as a matter of law.9 A defendant owes the

       plaintiff a duty of care where the defendant was under a legal obligation to

       protect the plaintiff from the risk of harm which caused the plaintiff’s

       injuries.10 “[W]hether a duty exists is entirely a question of law, to be


5
  Burkhart, 602 A.2d at 59.
6
  Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods., Inc., 2006
WL 1720073, at *1 (Del. Super. Apr. 26, 2006).
7
   Spence v. Layaou Landscaping, Inc., 2013 WL 6114873, at *5 (Del. Super. Oct. 31, 2013)
(quoting GMG Capital Invest., LLC v. Athenian Venture Partners I, L.P., 36 A.3d 776, 783 (Del.
2012)).
8
  Pipher v. Parsell, 930 A.2d 890, 892 (Del. 2007) (citing New Haverford P’ship v. Stroot, 772
A.2d 792, 798 (Del. 2001)).
9
  Id.
10
   Id.; Thurmon v. Kaplin, 1999 WL 1611327, at *2 (Del. Super. Mar. 25, 1999).


                                              6
      determined by reference to the body of statutes, rules, principles and

      precedents which make up the law; and it must be determined by the

      court.”11

      8.     In the case sub judice, Plaintiff alleges that Melcar, a subcontractor

      hired by the general contractor pursuant to a subcontract, was negligent.

      Delaware courts have consistently held that, generally, “it is the scope of the

      undertaking, as defined in the contract, which gives shape to the independent

      contractor’s duty in tort.”12 Apart from the contract, where a subcontractor

      exercises actual control over a job site, the law will impose a duty on it to act

      as a reasonable contractor in providing services necessary for the protection

      of the traveling public within the construction zone.

      9.     Plaintiff has presented no evidence to support its assertion that Melcar

      exercised actual control over the job site; thus, the scope of Melcar’s duties

      is defined solely by its subcontract with Danella.

      10.    “Under Delaware law, the interpretation of a contract is a question of

      law only if the terms of the agreement are plain and unambiguous.”13 Where

      the contract’s terms are clear and unambiguous, such that a reasonable


11
   Pipher, 930 A.2d at 892 (citations omitted).
12
   Spence, 2013 WL 6114873, at *3 (citing Brown v. F.W. Baird, LLC, 2008 WL 324661, at *3
(Del. 2008)).
13
   Jordan v. E.I. Du Pont de Nemours & Co., 1991 WL 18108, at *1 (Del. Super. Feb. 8, 1991)
(citing Klair v. Reese, 531 A.2d 219 (1987) (relying on Restatement (Second) of Contracts,
§ 212 (1981)).


                                            7
       person in the position of either party would have no expectations

       inconsistent with the contract language, the Court will interpret them

       according to their ordinary meaning.14 An ambiguity exists not because the

       parties disagree as to the proper construction of a term but when the

       provisions in controversy are fairly susceptible of different interpretations or

       may have two or more different meanings.15 Further, “[w]hen interpreting a

       contract, the Court will give priority to the parties’ intentions as reflected in

       the four corners of the agreement” by construing the agreement as a whole,

       giving effect to all provisions therein.16 Thus, it is axiomatic that “[t]he

       meaning inferred from a particular provision cannot control the meaning of

       the entire agreement if such an inference conflicts with the agreement’s

       overall scheme or plan.”17

       11.    Though Plaintiff repeats ad nauseum that pursuant to the Master

       Subcontract for Construction Work, Defendant Melcar is as responsible

       under the Master Contract with Fibertech as the Contractor, Danella, is,

       simply saying the words does not make it so.18 The actual “duty” provisions



14
   GMG, 36 A.3d at 780.
15
   Id. (citations omitted).
16
   Id. (citing E.I. du Pont de Nemours & Co., Inc. v. Shell Oil Co., 498 A.2d 1108, 1113 (Del.
1985)).
17
   Id.
18
   See Pl.’s Opp. ¶¶ 13, 14, 15, 18, 19 (Trans. ID 58320609); Pl.’s Supp. Resp. in Opp. 5-6
(Trans. ID 59265006).


                                              8
       at issue in Melcar’s Master Subcontract for Construction Work with Danella

       state, in pertinent part, as follows:

               “2. All construction projects for which [Danella] engages
               [Melcar] to perform Work . . . shall be subject to the terms of
               this Master Subcontract, and each of the following: (i) The
               ‘Standard Terms and Conditions’ attached hereto as Exhibit
               ‘A’, and (ii) a Work Order, in the form attached hereto as
               Exhibit ‘B’ or any similar writing signed by [Danella] and
               [Melcar] . . . .19

               “Exhibit A: 1.1 The Master Subcontract Documents consist
               of: (a) The Master Subcontract, (b) The contract or other
               agreement (the “Prime Contract”) between [Danella] and
               [Fibertech], including any and all Contract Documents
               enumerated therein, including any and all General, Special,
               Supplementary, and other Conditions thereto or thereof, and
               any and all Exhibits thereto, and any and all Drawings,
               Specifications, and Addenda issued prior to execution of the
               Prime Contract.”20

               “Exhibit A.: 2.1 [T]o the extent that provisions of the Prime
               Contract shall apply to the Work, . . . [Melcar] shall assume
               toward [Danella] all obligations and responsibilities which
               [Danella] assumes toward [Fibertech] under the Prime Contract,
               subject to the restrictions and limitations of the Prime Contract,
               and only insofar as any of the foregoing are applicable to the
               Master Subcontract.”21

               “Exhibit A: 3.1 [Melcar] shall execute the Work, including
               performing the labor, supervision and other services, and
19
   Pl.’s Opp., Exh. H, Master Subcontract for Construction Work Between Melcar and Danella
(“Subcontract”), at ¶ 2.
20
    Id. at § 1.1. To the extent that Plaintiff impliedly references this section to support his
assertion that Danella’s Master Agreement with Fibertech and all permits and specifications were
incorporated specifically into Melcar’s subcontract, because Plaintiff fails to demonstrate how
the Court should find that the Permit was specifically incorporated into Melcar’s subcontract
with Danella, the Court cannot find as a matter of law that Melcar was responsible for notifying
DelDot that construction was taking place on the night in question pursuant to this section alone.
21
   Id. at § 2.1.


                                                9
              providing the equipment, tools, and materials as required by
              each Work Order and the Master Subcontract Documents, and
              as reasonably inferable therefrom, in order to achieve the results
              intended thereby.”22

              “Exhibit A: 3.2 [Melcar] agrees to perform the Work under
              the direction of [Danella] . . . and to perform the Work in strict
              conformity with the requirements of the Master Subcontract
              Documents.”23

              “Exhibit A: 5.1 [Melcar] shall commence the Work when
              directed by [Danella] or when otherwise required by the Work
              Order.”24

              “Exhibit A: 14.2 In performing the Work hereunder, [Melcar]
              shall be an independent contractor maintaining control over and
              having sole responsibility for [Melcar’s] employees and other
              personnel.”25

              “Exhibit A: 14.7 [Melcar] shall take all reasonable safety
              precautions with respect to the Work, and shall comply with all
              Legal Requirements pertaining to, or the safety of persons or
              property, and comply with any safety rules, measures or
              policies initiated by [Danella] or [Fibertech] (collectively,
              “Safety Requirements”).          [Melcar] shall assume full
              responsibility for compliance with all Safety Requirements, and
              shall bear all costs and damages attributable to any failure to so
              comply, and shall indemnify and hold harmless [Danella] . . .
              for all costs, losses, and expenses, incurred by any of them . . . .
              [Melcar] shall report immediately to [Danella] any injury to any
              of [Melcar’s] employees or damage to any property on or about
              the Project Site.”26


22
   Id. at § 3.1.
23
   Id. at § 3.2.
24
   Id. at § 5.1.
25
   Id. at § 14.2.
26
    Id. at § 14.7. To the extent that Plaintiff impliedly references this section to support his
assertion that the Permit constitutes a “legal requirement” pertaining to the work, because it is
undisputed that Melcar is an independent contractor under its Subcontract, Melcar is responsible


                                               10
       12.     It is undisputed that Melcar was responsible for performing the

       directional drilling, or boring, required to build the conduit for Fibertech’s

       fiber optic cable project along Route 13. However, Plaintiff’s assertion that,

       by virtue of its subcontract, Melcar undertook the same amount of

       responsibility as did Danella as the general contractor for the safety of the

       traffic controls utilized throughout the construction project, as well as for

       warning the public of the dangers presented by the construction taking place

       in the median, is belied by the plain language of the subcontract itself.27

       First, § 2.1 of Exhibit A clearly states that Melcar shall assume toward

       Danella all obligations and responsibilities which Danella assumes toward

       Fibertech under their Master Agreement only insofar as such obligations and

       responsibilities are application to Melcar’s Master Subcontract. Therefore,

       Melcar did not assume responsibility for safety of the entire job site, but

       rather assumed responsibility for safety of the Work it subcontracted to

       perform.      To impose any greater duty upon Melcar is not reasonably

       inferable therefrom and, thus, was not contemplated by the Subcontract.

       Second, § 14.2 of Exhibit A clearly states that Melcar is an independent


only for the work it contracted to perform and, thus, is entitled to rely on Danella’s compliance
with the Permit when directed to perform work by Danella.
27
   To the extent that Plaintiff refers to the indemnification provisions in Melcar’s Subcontract
with Danella for support of its argument regarding the duties Melcar owed to him, such
provisions are irrelevant as Plaintiff is not a party to the Subcontract and, thus, the Court declines
to consider them here.


                                                 11
      contractor, and § 3.2 offers further support of this specific relationship

      between Danella and Melcar by requiring Melcar to perform the work under

      the direction of Danella.

      13.    Furthermore, because it is undisputed that Melcar was hired as an

      independent contractor under the Subcontract to perform only the directional

      drilling and that Melcar agreed to perform the work under the direction of

      Danella pursuant to the Subcontract, any argument that § 14.7 imposes a

      duty on Melcar to ensure that the entire construction project was in

      compliance with the Permit fails as a matter of law.

      14.    However, because it is undisputed Melcar was hired to perform the

      directional drilling necessary to provide Fibertech with a conduit for its fiber

      optic cable along Route 13 and that Melcar was performing the work at the

      time of the collision, the responsibility assumed by Melcar pursuant to

      § 14.7 to take all reasonable safety precautions with respect to its work is

      implicated to the extent that Plaintiff alleges that Melcar was negligent in

      performing the work it contracted to do. This contractual duty is similar to

      the common law duty Delaware law imposes on a contractor to perform

      tasks with reasonable care.28 Therefore, to be clear, as Melcar did not

      assume the same amount of responsibility for job site safety as did Danella,

28
  See Thurmon, 1999 WL 1611327, at *2 (“It is possible that a legal obligation could arise
pursuant to a contractor’s common-law duty to perform tasks with reasonable care.”).


                                           12
        Melcar’s liability is limited to whether it took all reasonable safety

        precautions with respect to its work—not with respect to the entire job site.

        15.     The Parties have directed the Court to consider its holding in Thurmon

        v. Kaplin, as it involved a motor vehicle collision that occurred in a

        construction zone.29 The plaintiff alleged negligence by the contractor, who

        had been hired by DelDOT to mill and repave the road, and by the

        subcontractor, who had been hired by the contractor to apply temporary

        striping to the road, for failing to provide temporary striping and arrows and

        to close the turn lane.30 According to the record, the subcontractor had no

        decision-making authority as to the striping, acted only pursuant to

        instructions from DelDOT and/or the contractor, and its work was closely

        inspected every day, requiring specific approval before it could leave the

        jobsite.31 The Court found that, in the absence of any evidence suggesting

        that the subcontractor exercised actual control over or otherwise assumed

        responsibility for the area in question, there was no basis to impose a duty on

        the subcontractor and, thus, only the contractor had assumed the

        responsibility of protecting the traveling public in the construction zone.32




29
   Id. at *1.
30
   Id.
31
   Id.
32
   Id. at *3.


                                           13
       16.    The terms of Melcar’s Master Subcontract for Construction, as

       discussed supra, make Thurmon distinguishable at this stage of the

       proceedings, because Plaintiff has alleged negligence against Melcar arising

       out of Melcar’s drilling activities in the median on the night in question.

       Though Melcar has presented evidence that DelDot inspectors had no issue

       with Melcar’s set up on the night in question, whether Melcar complied with

       the applicable standard of care under the circumstances is for the jury to

       decide.33 Furthermore, Melcar’s assertion that there is no evidence that

       Melcar had either personnel or equipment at the site of the accident is

       contradicted by the record, which suggests that Melcar was drilling in the

       median on the night in question.34 Therefore, because the record contains

       disputed facts as to whether Melcar’s acts or omissions at the worksite

       violated the responsibilities it assumed in the Master Subcontract for

       Construction Work, and, if so, whether these acts or omissions proximately

       caused Plaintiff’s injuries, summary judgment is not appropriate at this time.




33
   See Hallmon v. C. Raymond Davis & Sons, Inc., 2006 WL 1134763, at *3 (Del. Super. Mar.
20, 2006) (“Issues of negligence are ordinarily decided by the jury and summary judgment
should only be granted in negligence actions where the undisputed facts compel one
conclusion.”).
34
   Pl.’s Ltr to Court dated Mar. 28, 2016, Exh. A., Deposition of Robert L. Guldin, at 22:19-23:9
(Trans. ID 58776196).


                                               14
     17.   For the foregoing reasons, Melcar’s Motion for Summary Judgment is

     DENIED.

     IT IS SO ORDERED.

                                    /s/Calvin L. Scott
                                    The Honorable Calvin L. Scott, Jr.

cc: Prothonotary




                                     15
