           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RYAN REESE,                                :
                                           :     C.A. No: K15C-09-030 RBY
             Plaintiff,                    :     In and For Kent County
                                           :
      v.                                   :
                                           :
TRIPLE D. TRUSS, LLC, L&S TRUSS            :
HAULING, INC., and NORTHEAST               :
AGRI SYSTEMS,                              :
                                           :
             Defendants,                   :
                                           :
and                                        :
                                           :
NORTHEAST AGRI SYSTEMS,                    :
                                           :
             Defendant/Third-Party         :
             Plaintiff,                    :
                                           :
      v.                                   :
                                           :
JEFFREY BROOKS WALSTON,                    :
                                           :
             Third-Party Defendant.        :


                           Submitted: October 4, 2016
                           Decided: November 28, 2016


             Upon Consideration of Defendant Triple D. Truss, LLC’s
                              Motion to Dismiss
                                    DENIED

                                      ORDER
Craig T. Eliassen, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for
Plaintiff.

William A. Crawford, Esquire, and Eric Scott Thompson, Esquire, Franklin &
Prokopik, Wilmington, Delaware for Defendant Triple D. Truss, LLC.

Roger D. Landon, Esquire, Murphy & Landon, Wilmington, Delaware for
Defendant L&S Truss Hauling, Inc.

David L. Baumberger, Esquire, Chrissinger & Baumberger, Wilmington, Delaware
for Defendant and Third-Party Plaintiff Northeast Agri Systems.

Jeffrey Brooks Walston, Pro se.


Young, J.
Reese v. Triple D. Truss, LLC, et al.
C.A. No. K15C-09-030 RBY
November 28, 2016

                                        SUMMARY
       Ryan Reese (“Plaintiff”) filed an action to recover from Triple D. Truss, LLC
(“Defendant”); L&S Truss Hauling, Inc.; and Northeast Agri Systems (“Co-
Defendants”) for injuries he sustained when he fell off of the top of a chicken house
while constructing its roof. Defendant filed a Motion to Dismiss the case for failure
to state a claim. Because it is reasonably conceivable that Plaintiff may recover from
Defendant, Plaintiff’s Complaint states a claim upon which relief may be granted.
Discovery is at a very early stage, and factual issues remain outstanding at this point.
Therefore, Defendant’s Motion to Dismiss is DENIED.
                               FACTS AND PROCEDURE
       On July 8, 2014, Plaintiff was helping to construct the roof of a chicken house.
Defendant either only manufactured the trusses used for the roof of the chicken house
or was involved in the manufacture of the trusses and the construction of the roof
itself with Co-Defendants. That factual determination has not yet been made. Plaintiff
fell from the top of the chicken house as he was constructing its roof. Plaintiff alleges
that as a result of his fall he sustained an L5 spinal fracture and a fractured tail bone.
       Plaintiff filed a Complaint on September 22, 2015, alleging that Defendant was
negligent in a variety of regards. A Third-Party Complaint was filed against
Jeffrey Brooks Walston (“Third-Party Defendant”) on November 25, 2015. On
October 3, 2016, Defendant filed a Motion to Dismiss under Superior Court Rule
12(b)(6) in this Court.
                                STANDARD OF REVIEW
       The Court’s standard of review on a motion to dismiss pursuant to Superior

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Reese v. Triple D. Truss, LLC, et al.
C.A. No. K15C-09-030 RBY
November 28, 2016

Court Civil Rule 12(b)(6) is well-settled. If the complaint and facts alleged are
sufficient to support a claim on which relief may be granted, and factual issues are
outstanding, the motion is not proper and should be denied.1 The test for sufficiency
is a broad one.2 If any reasonable basis can be formulated to allow Plaintiff’s
recovery, the motion to dismiss must be denied.3
                                           DISCUSSION
       An employer is vicariously liable for the actions of his employee when his
employee is at fault for an injury, while acting within the scope of employment.4
Defendant argues that, in this case, Plaintiff is not liable for negligence, since it was
merely a manufacturer, and Plaintiff has not asserted a defect in the manufacturing
process. Plaintiff contends that Defendant is liable since it was responsible for
providing trusses, a crane, and a crane operator to assist in building the chicken house
roof. Since, at this early stage, it is reasonably conceivable that the crane operator
could have been at fault, that the Defendant may have employed the crane operator,
or that the crane operator may have been acting within the scope of his employment;
Defendant could be liable in negligence to Defendant. Therefore, Defendant’s Motion
to Dismiss must be DENIED.




       1
           Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
       2
           Id.
       3
           Id.
       4
           Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. June 11, 1997).

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Reese v. Triple D. Truss, LLC, et al.
C.A. No. K15C-09-030 RBY
November 28, 2016

A. The Crane Operator May be at Fault for the Plaintiff’s Injuries
        The elements of negligence are duty, breach, causation and harm.5 If the crane
operator owed a duty to Plaintiff, may have breached that duty, may have caused
Plaintiff’s injuries, and may have caused harm to Plaintiff, the crane operator could
be liable under a negligence theory.
        1. The Crane Operator’s Duty to Plaintiff
        A crane operator on a construction site may have a duty to maintain proper
lookout and exercise a degree of care necessary to prevent injury to his fellow
construction workers.6 In Hitchens v. Cannon & Cannon, Inc., while deciding that a
lower court gave proper jury instructions, the Delaware Supreme Court held that a
crane operator owed the two duties stated above,7 because doing so would encourage
operators to maintain vigilance in their operation of machinery.8 There, the crane
operator was attempting to move a beam on the fifth floor of a building while a
construction worker was standing near the beam.9 The crane operator hit the
construction worker with the beam, causing him to fall four stories to the ground.10


        5
            Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. Aug. 12, 2010).
        6
            Hitchens v. Cannon & Cannon, Inc., 588 A.2d 1142, 3 (Del. Mar. 1, 1991).
        7
            Id.
        8
          Carnes v. Winslow v. Eachus, 182 A.2d 19, 21 (Del. May 22, 1962). Note, the Hitchens
case did not explicitly state a rational. Instead, it cites to a case involving an auto accident which
assigns to the defendant a duty to maintain a proper lookout for the same reason stated in the test.
        9
            Hitchens, 588 A. 2d at 1-2.
        10
             Id.

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Reese v. Triple D. Truss, LLC, et al.
C.A. No. K15C-09-030 RBY
November 28, 2016

       Plaintiff’s set of facts is similar to those found in Hitchens. In this case,
Plaintiff alleges that the crane operator moved a truss that caused a series of other
trusses to fall and knock Plaintiff to the ground. Plaintiff was working in construction
high above the ground, in a situation in which the vigilance of the operators of
machinery around him impacted his safety. Thus, the crane operator in this case could
be shown to have been under an obligation to maintain proper lookout and exercise
a degree of care necessary to prevent injury to his fellow construction workers.
       2. The Crane Operator May Have Breached This Duty
       The Complaint alleges that the crane operator failed to maintain
communication with Plaintiff and otherwise failed to exercise due care under the
circumstances. If these allegations are true, then the crane operator may have
breached his duty to maintain proper lookout and exercise a degree of care necessary
to prevent injury to his fellow construction workers.
       3. The Crane Operator May Have Caused the Harm to the Plaintiff
       Delaware follows the “but for” rule of causation. This means “the defendant’s
conduct is a cause of the event if the event would not have occurred but for that
conduct; conversely, the defendant’s conduct is not a cause of the event, if the event
would have occurred without it.”11
       Here there is presently no evidence before the Court indicating that Plaintiff
sustained a relevant injury prior to this accident. Thus, the crane operator may be
found to have caused the harm to the Plaintiff.


       11
            Culver v. Bennett, 588 A.2d 1094, 1097 (Del. Mar. 21, 1991).

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Reese v. Triple D. Truss, LLC, et al.
C.A. No. K15C-09-030 RBY
November 28, 2016

B. The Defendant May Have Employed the Crane Operator
       Plaintiff’s Complaint alleges that Defendant was responsible for providing a
crane operator. Defendant has not yet even responded. Certainly, no discovery exists
to determine that issue. Under these circumstances, there is a possibility that
Defendant employed the crane operator.
C. The Crane Operator May Have Been Operating the Crane Within the Scope
of his Employment with Defendant
       Conduct is within the scope of employment if it is of a kind that an employee
was employed to perform, it occurs substantially within the authorized time and space
limits, and is actuated at least in part by a purpose to serve the master.12
       The crane operator’s actions in this case could fit within the confines of the
respondeat superior test. At this stage of the proceedings, it is possible that
improperly moving a truss could have been actuated by an employer’s desire that the
crane operator move the truss.
                                          CONCLUSION
       Since it is reasonably conceivable at this stage that the crane operator may have
been at fault, that the Defendant may have employed the crane operator, or that the
crane operator may have been acting within the scope of employment; Defendant
could be liable in negligence to Defendant. Therefore, Defendant’s Motion to Dismiss
must be DENIED at this time, without prejudice against filing again following
sufficient discovery and determination of factual issues.


       12
            Wilson v. Joma, Inc., 537 A.2d 187, 189 (Del. Feb. 5, 1988).

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Reese v. Triple D. Truss, LLC, et al.
C.A. No. K15C-09-030 RBY
November 28, 2016

       IT IS SO ORDERED.
                                              /s/ Robert B. Young
                                                         J.

RBY/lmc
Via File & ServeXpress
cc: Counsel
      Jeffrey Brooks Walston (via U.S. Mail)
      Opinion Distribution




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