IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN RE: ASBESTOS LITIGATION

WERNER RATH, )
)
Plaintiff, )
)
v. )
) C.A. No. N17C-08-228 ASB
3M COMPANY, et al. )
)
Defendants. )

OPINION

Submitted: March 27, 2019
Decided: April 18, 2019

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

Upon Defena’ants Four Star Oz`l & Gas Compcmy, TRMI-H LLC, and
Texaco Inc. ’s Motionfor Summarjy Jua'gment,
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. (arguea'), 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 Defena’ant
Delmarva Power & Light Company.

J ames F. Harker, Esq. (arguea'), Cohen, Seglias, Pallas, Greenhall & Furman, P.C.,
Wilmington, Delaware. Attorney for Defendants Four Star Oz'l & Gas Company,
TRM-H LLC, and Texaco Inc.

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

MEDINILLA, J.

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 Rath2
(“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
F actual Background3

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

 

l DP&L, Getty, and Sunoco each raised substantially the same arguments in their Motions and at
oral argument For this reason, the Court consolidated these Motions into this ruling.

2 Mr. Rath passed away on March 14, 2019. As of the date of this ruling, Mr. Rath’s estate has
not yet been substituted as the plaintiff.

3 The facts are taken from Rath’s two depositions; Video Deposition of September 28, 2017 and
Discovery Deposition of September 28 and 29, 2017. The parties provided exhibits of various
portions of the Video and Discovery Depositions. F or ease of reference, the Court will refer the
them as either Video Deposition or Discovery Deposition.

3

DP&L facility in Delaware City,4 the Getty oil refinery in Delaware City, and
Sunoco’s chemical plant in Claymont.5 lt 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.
Speciflcally, 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

 

4 DP&L argues that Rath did not work at its facility because Catalytic never contracted with DP&L
to perform work on its premises. DP&L relies on two affidavits to support this argument. The
Court assumes for purposes of these Motions that Rath worked at DP&L’s facility while employed
by Catalytic.

5 Rath testified in this deposition that Sunoco’s “SunOlin” facility was located in Marcus Hook,
Pennsylvania, but his Complaint listed the facility in Claymont, Delaware. Sunoco notes that
Rath’s Complaint correctly states that the Sunoco’s “SunOlin” facility was located in Claymont,
Delaware.

6 Video Deposition at 69-70.

7 Discovery Deposition at 81, 145, 238.

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
19805 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

 

8 Video Deposition at 13.

9 Discovery Deposition at 121; Video Deposition at 14.

10 Discovery Deposition at 74.

11 Ia'. at 121.

12 Ia’. at 140.

13 1a at i4i.

14 Ia'. at 143.

15 Discovery Deposition at 213; Video Deposition at 62. DP&L initially raises the argument of
whether Rath even worked at its facility. Since he testified to having worked at DP&L’s facility
and was able to identify DP&L as adjacent to and across the railroad tracks from the Getty refinery,
for purposes of the present motion, the Court will assume Rath worked at DP&L’s facility.

5

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.

 

16 Video Deposition at 63, 64.
17 Id. at 64.
18 See Third Am. Compl. 1111 68-94.

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]ll 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

 

19 Super. Ct. Civ. R. 56(c).

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

21 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).

22 Nutt v. A.C. & S. Co., 517 A.2d 690, 692 (Del. Super. 1986) (citing Mechell v. Palmer, 343
A.2d, 621 (Del. 1975); Allstate Auto Leasl`ng Co. v. Caldwell, 394 A.2d 748, 752 (Del. Super.
1978)).

23 111 re. Asbestos Litig., 509 A.2d 1116 (Del. Super. 1986), aff’d sub. nom. Nicolet, Inc. v. Nutt,
525 A.2d 146 (Dei. 1987).

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
Litigatz'on (Wooleyhan) (“Wooleyhan 1”),25 ln re Asbestos Litigation (Wooleyhan)
(“Wooleyhan 11 ”),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

 

24 2002 WL 31007993 (Del. Super. Sept. 3, 2002).

25 2005 WL 6515534 (Del. Super. Feb. 15, 2005).

26 897 A.2d 767, 2006 WL 1214980 (Del. Apr. 12, 2006) (TABLE).

27 2007 WL 1651964 (Del. Super. May 31, 2007).

28 2007 WL 1651968 (Del. Super. June 25, 2007).

29 Plaintiff failed to respond to this argument in its responsive pleadings, therefore this argument
is deemed waived. Also, based on the rulings, The Court need not address it.

8

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

ln 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

 

30 415 A.2d 499 (Dei. super. 1980).

31 Helm, 2007 WL 1651968, at *30 (quoting O’Connor v. Diamona’ State Tel. Co., 503 A.2d 661,
663 (Del. Super. Ct. 1985); citing Restatement (Second) of Torts § 409 (1965)).

32 Restatement (Second) of Torts § 409 (1965).

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),
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

ln 2002, although factually different from this case, the Roca decision

provided the framework that served to develop more recent decisions of premises

 

33 Wenke, 2007 WL 1651964, at *7 (noting that the Restatement provides the same three
“recognized exceptions” like the common law); Helm, 2007 WL 1651968, at *32 (stating that the
exception of voluntarily assuming safety responsibilities derives from § 324A of the Restatement).
34 See generally Roca, 2002 WL 31007993; Wooleyhan I, 2005 WL 6515534; Wooleyhan II, 2006
WL 1214980; Wenke, 2007 WL 1651964; Helm, 2007 WL 1651968.

10

and landowner liability in asbestos litigation. ln Roca, the plaintiff worked as a
union pipefitter for different independent contractors35 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,4l that

 

35 Roca, 2002 WL 31007993, at *1.

36 Ia'. (arguing defendants owed plaintiff a duty of care).

37 See id. at *2.

38 Ia'. at *2-4.

39 Ia’. at *2 (quoting Restatement (Second) of Torts § 409 (1965)).

40 Roca, 2002 WL 31007993, at *2-3.

41 See Roca v. E.I. DuPom‘ de Nemours and Co., 842 A.2d 123 8, 1240 (Del. 2004) (“We have also
determined that the final judgments entered by the Superior Court should be affirmed on the basis
of and for the reasons stated by the Superior Court in its memorandum Opinion dated September

3, 2003.”).
ll

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 l 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

 

42 Roca, 2002 WL 31007993, at *4 (finding that the court did not need to address the second
question of “whether Defendants’ use of asbestos-containing insulation in the l960’s did or did

not involve a peculiar risk to Plaintiff”).
43 See Wooleyhan I, 2005 WL 6515534, at *l.

12

work sought relief under various sections of the Restatement, including §§ 324A46
and 343.47

The Court granted summary judgment against those who alleged direct
exposure through their own work. lt 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

 

46 Under § 324A of the Restatement, regarding workplace safety, it states:
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 (l) 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 undertaking

47 Under § 343 of the Restatement,
A possessor of land is subject to liability for physical harm caused by his invitees
by a condition on the land if, but only if, he (a) knows or by the exercise of
reasonable care would discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and (b) should expect that they will not
discover or realize the danger, or will fail to protect themselves against it, and (c)
fails to exercise reasonable care to protect them against the danger.

48 Wooleyhan 1, 2005 WL 6515534 at *2.

49 Ia'. at *2.

13

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 § 324A 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 1 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 ln 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 ln the first part of its order, the Delaware Supreme Court found that

 

50 Wooleyhan I, 2005 WL 6515534, at *2 (distinguishing between different types of plaintiffs
based on exposure to asbestos).

51 Ia'. at *2-3.

52 Ia'. at *4-7.

53 Ia'. at * 7 (granting summary judgment as to defendants’ liability under §§ 324A, 410, and 414).
54 Ia'. at *7 (denying summary judgment on defendants’ liability under § 343).

55 Wooleyhan II, 2006 WL 1214980, at *1.

14

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
judgment57

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

lf 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.

 

56 Wooleyhan II, 2006 WL 1214980, at *2, 3.
57 See id. at *l, 2.
58 Ia'. at *3 (explaining Superior Court invoked the general rule and found that no exception to this

rule Was applicable).
59 Ia'. (identifying landowner liability under § 343 to employees of independent contractors).

60 See ia'.
15

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

”62

contractors who were working directly with asbestos. 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

’364

installers or asbestos insulators, 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

 

61 See Wenk€, 2007 WL 1651964, at *2; Helm, 2007 WL 1651968, at *l.
62 Wenke, 2007 WL 1651964, at *l (identifying group A plaintiffs).

63 1a at *10.

64 la'. (classifying group B plaintiffs).

65 Id. at *10.

16

The Wenke decision focused on claims brought by group B plaintiffs, and
granted summary judgment in favor of the landowner defendant lt found that
“ Wooleyhan 1 and Wooleyhan 11 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 lt is clear that Wenke echoed
the rationale of both Wooleyhan, decisions. lt noted that Wooleyhan 1 rejected
plaintiffs’ claims under any Chapter 15 exception to the general rule, and that
Wooleyhan 11 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 ln 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

 

66 Wenke, 2007 WL 1651964, at *2.

63 See id. at *ii (citing Wooleyhan 11, 2006 WL 1214980,31*3).
68 See id.

63 Id. at *11. (ciring Wooleyhan 1, 2005 WL 6515534, at *4).

30 Id. at *12.

17

“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

 

71 Wenke, 2007 WL 1651964, at *12 (quoting Wooleyhan II, 2006 WL 1214980, at *3) (emphasis
added).

72 Id

73 Rabar, 415 A.2d at 502.

74 See ia'. at 507 (stating that record would support conclusion that “duPont had also actually
assumed the role of general contractor for many significant purposes on the. . .proj ect”).

18

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,

 

75 In particular, the Court in Rabar explained that certain findings could be made based on thc
record, including that duPont coordinated and scheduled the phases of the project directed when
and where various aspects of the work would be done, supplied construction materials and
equipment contracted out specialty work, named its own employee as the contractor’s general
supervisor on the project, and had the ability to “terminate the contract at any time for its own
convenience.” See id. at 505-08.

76 See Helm, 2007 WL 1651968, at *l. There, the Court considered the safe workplace doctrine
under § 343 and granted the defendants’ motions for summary judgment as to their § 343 claims,
and granted one defendant’s motion for summary judgment as to the three exceptions that Rath
here similarly argues.

77 Ia'. at *33.

78 Ia'. at *30 (quoting Hana'ler Corp. v. Tlapechco, 901 A.2d 737, 740-41 (Del. 2006)).

19

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

1 These plaintiffs, who did not work

to work at the facilities at the same time.8
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

 

79 Helm, 2007 WL 1651968, at *2-3.

80 Ia'. at *1-15.

81 See ia'. at *2-13 (discussing each plaintiffs’ employment and exposure history and identifying
other employees at the defendants’ facilities who were employed by other contractors or
employers).

82 See ia'. at *1 (explaining that this opinion focuses on group A plaintiffs).

20

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 (I and
11) and Wenke Identifying the considerations under Helm reinforces the reasons
why he is not a group A plaintiff who would otherwise be entitled to argue the
applicability of the following exceptions.

A. Whether the Landowner Maintained Active Control

First, this Court has explained that there is no bright line test, but “it is clear
that active control does not exist merely because the owner or general contractor
maintains ‘ general superintendence’ over the work to ensure that it complies with
the contract specifications.”83 lt further provides that “[t]here must be discernable
control over the manner and method of the performance of the contract work such
that ‘the contractor is not entirely free to do the work in his own way.”’84 The court
may consider the following factors in determining whether the landowner
maintained active control:

(1) who provided the plaintiff with the tools and equipment to perform

the work; (2) who had the authority to hire, fire, or discipline the

plaintiff; (3) who did plaintiff approach to address workplace concerns;
(4) Who controlled the operations at the work site; (5) who directed the

 

83 Helm, 2007 WL 1651968, at *31 (quoting In re Asbestos Litig. (Hua’son), 2006 WL 3872846,
at *3 (Del. Super. Jan. 11, 2007)).
34 Id. (quoting Hudson, 2006 WL 3872846, at *3).

21

plaintiffs work; and (6) whether the landowner was in a position of
authority to provide a safe workplace for all trades.85

This record shows that Defendant landowners did not actively control the
manner and method of Rath’s work. Any control these Defendants may have had
was only general superintendence86 and does not establish the requisite degree of
control to impose a duty of care on DP&L, Getty, or Sunoco. As to DP&L, it may
have provided some work materials,87 but the record establishes that Rath was
employed by Catalytic, his direct supervision came from Catalytic foremen, he
followed Catalytic safety rules, his paycheck came from Catalytic, safety meetings
were run by Catalytic foremen, he did not have direct work-related contact with
DP&L people, and he made complaints directly to Catalytic foremen,88 This is
similar to his work at Getty, where he was hired, directed, paid, and could be fired
by Catalytic, and he presented workplace concerns to his Cataytic foreman.89 Lastly,
at the Sunoco plant, he was also hired, paid, and supervised by Catalytic, he
presented any concerns to Catalytic, and was not allowed to speak with plant

supervisors.90

 

85 Helm, 2007 WL 1651968, at *31 (quoting Hua'son, 2006 WL 3872846, at *3).

86 See ia'. at *31.

87 Rath testified that he was not one hundred percent sure who supplied his work materials.
Discovery Deposition at 215.

88 See Discovery Deposition at 213, 215-17.

39 See id. at 122-25, 169-70.

90 See Discovery Deposition at 144, 148.

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B. Voluntarily Assume Safety Responsibilities for Plaintiff’s Work
The Delaware Supreme Court has held that:

[T]hose who have responsibility for workplace safety must take

reasonable measures to ensure the safety of those at the work site. A

duty to ensure workplace safety can be imposed upon a party who

[voluntarily], by agreement or otherwise, undertakes responsibility for

implementing required safety measures. Where breach of the assumed

duty causes injury to a worker, the responsible party can be held liable

under the traditional principles of negligence law.91

This second exception is derived from § 324A Restatement.92 Again relying
on Rabar, the argument that all three Defendants voluntarily assumed safety
responsibilities is without merit The record demonstrates that the Defendant
landowners did not voluntarily assume responsibility for Rath’s safety at their
facilities. Rath testified the daily safety meetings were conducted by his foreman,
employed by Catalytic.93 Rath followed Catalytic safety rules while working at the
DP&L site.94 At Getty, Rath’s testimony provides that Catalytic undertook the
safety responsibility for his work, not the refinery owner.95 The daily and weekly
safety meetings were conducted by Catalytic foremen and the general foreman.96

Rath provided inconsistent testimony about who provided him with safety

equipment including a safety belt, hat, and glasses, testifying first that Getty

 

91 Helm, 2007 WL 1651968, at *32 (quoting Hana'ler, 901 A.2d at 746-47).
92 See Helm, 2007 WL 1651968, 31*32.

93 See Discovery Deposition at 205, 216-17.

94 See ia'. at 216.

95 See ia'. at 126-28; Video Deposition at 20-21.

96 See Discovery Deposition at 127.

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provided the equipment but later testifying that it was Catalytic.97 He also testified
the hard hat that he was required to wear said “Catalytic” across the front98 As to
Sunoco, Rath testified that similar to his work at Getty, the general foreman from
Catalytic would run the safety meetings.99

C. Possessory Control Over Rath’s Work Area

Under the last exception, an owner may be liable “if it retained sufficient
control over the part of the work or if it retained possessory control over the work
premises during the work.”100 ln Helm, the Court explained that it would “consider
whether the landowner assumed most of the general contractor responsibilities at the
overall managerial level[,] such as setting deadlines for the project, setting standards
as to how the project would be performed, supplying construction materials and
equipment, subcontracting out specialty work, and controlling security at the job
site.”101 The Helm Court found the work-area control test from Rabar is still valid,
and “those found to be in control of a defined work area are under a common law
duty to make reasonable efforts to provide for the safety of workers in the control

area ”102

 

97 Video Deposition at 30; Discovery Deposition at 128.

98 Discovery Deposition at 128.

99 Discovery Deposition at 148-49.

100 Raber, 415 A.2d at 506 (citing Restatement of Torts (Second) §§ 414, 422(a)).

101 Helm, 2007 WL 1651968, at *33 (citing Rabar, 415 A.2d at 507; Bryan v. Delmarva Power &
Light, 1995 WL 653987, at *8-9 (Del. Super. Oct. 2, 1995)) (internal quotations omitted).

102 Ia'. (quoting Hawthorne v. Edl`s Co., 2003 WL 23009254, at *8 (Del. Super. July 14, 2003);
citing Hana’ler, 901 A.2d at 749).

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Here, Rath’s testified that Catalytic’s foreman, not DP&L, Getty, or Sunoco,
directed and supervised his work, and also provided him with instructions for his
daily work, Rath did not have contact with the site supervisors. ln addition,
Catalytic employed all of the workers at the facility and assigned him his work.
These Defendant landowners did not maintain possessory control over Rath’s work

area.

III. Rath Is a Group B Plaintiff under Wooleyhan (I and II) and Wenke

The record is clear that Catalytic was the only contractor at the various
facilities and was the sole employer of all the employees of the different trades that
were working there, including the insulators, pipefitters, and laborers that worked
alongside Rath. Therefore, all work performed by the other tradesmen that involved
asbestos were also employed by Catalytic, Relying on Wooleyhan (I and II), as well
as Wenke, Rath’s claims fail because he alleges exposure as a result of his own
employer’s work with asbestos. In line with these cases, Rath is not an “other” or
“third-person” under the provisions of the Restatement because he is an employee
of the contractor whose work created the condition that caused Rath’s alleged injury.

Rath urges this Court to focus primarily on the nature of his work to find that
he is entitled to hold Defendants’ liable for his injuries under the exceptions to the
general rule, Aside from the reasons already stated, focusing solely on the nature of

Rath’s work ignores the legal underpinnings of premises liability theories. It is true

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that the Wenke Court separated the classification of the groups “based on the nature
of the work they performed while on the defendants’ premises.”103 Without more,
under Wenke, Rath’s trade as a carpenter would qualify him as an employee of an
independent contractor who did not work directly with asbestos, such as painters or
other tradesmen. However, this is not the end of the analysis This classification of
plaintiff also requires he demonstrate he is “injured as a result of the work (and
negligence) of others including, arguably, the landowner.”104 For the reasons stated,
the record is clear there were no other contractors Only Catalytic,

Now Rath does argue that by “others,” he also means the Defendant
landowners themselves He alleges that the pipe covering and insulation in
Defendants’ facilities were negligently maintained by the landowners and exposed
him to asbestos ln support, there was an exhibit provided to Rath at his deposition
that depicted corroded pipes He was asked by Plaintiff’s counsel if the photograph
represented “substantially similar” conditions he encountered at Defendants’
sites He answered affirmatively. Plaintiff’s counsel seeks to introduce the
testimony and the photograph as evidence of Defendants’ culpability in maintaining

its facilities

 

103 Wenke, 2007 WL 1651964, at *l.
104 Ia'. at *10 (emphasis added).

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This argument is without merit During oral arguments, when this Court
asked for clarification as to which of the three Defendants’ sites was identified in the
photo, Plaintiff”s counsel conceded that the photograph does not depict any of
Defendants’ sites lt was offered merely to ask Rath if the piping and insulation
conditions at Defendants’ facilities were substantially similar to the conditions in the
photograph, such that Plaintiff was exposed to the same type of pipe insulation as
shown in the photograph.

This Court raised concern regarding the relevance and/or the admissibility of
whatever representations may have been made by Rath as to this photograph. Even
if the photo did depict a similar photo of corroded pipe insulation in an unknown
industrial site_if it was an industrial site_there is nothing to suggest that the pipe
insulation in the photograph contained asbestos or more importantly that the pipe
insulation on Defendants’ premises contained asbestos The only evidence that
could suggest any exposure to asbestos is therefore tied to the work of Rath’s fellow
tradesmen employed by Catalytic.

Finally, Rath did not seek workers’ compensation benefits from Catalytic for
his alleged work-related injuries Under the exclusivity provisions of 19 Del. C. §
2304, Rath would have been unable to file negligence claims against Catalytic. He
seeks to impose this liability instead on the landowner based on alleged acts of the

same Catalytic employees This is problematic. The Wenke Court similarly

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considered the workers’ compensation argument to support the exclusion of group
B plaintiffs from the class of protected persons.105 Also as the Roca Court first
explained, independent contractors who pay workers’ compensation premiums are
protected from further liability, and landowners should be similarly shielded when
these property owners hire contractors and indirectly pay the cost of such

coverage.106 Although not dispositive of the ruling, similar ancillary considerations

apply here.

 

105 Wenke, 2007 WL 1651964, at *10 (“The exclusion of group B plaintiffs frorn the class of
protected persons under Chapter 15 is consistent with the relationship that exists between the
landowner, his contractor, and the contractor’s employees The unique features of this relationship
include the contractor’s (and his employees’) familiarity with the peculiar risks of the contract
work, the contractor’s legal obligation to procure Workmen’s compensation coverage for his
employees in the event they are injured by the risks of the job, and the fact that the
employer/landowner indirectly pays the cost of the coverage in the fees paid to the contractor for
the work to be perforrned.”).

106 Roca, 2002 WL 31007993, at *3.

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CONCLUSION
Following the holdings of Wooleyhan (I and II), and Wenke, Defendant
landowners have met their burden of showing that there are no genuine issues of
material fact under Rule 56. Rath fails to establish that a duty is owed to him to
protect him from the hazards of the work which his independent contractor-employer
was contracted to perform at Defendants’ various sites. Since no duty of care is owed
to him as a matter of law, Defendants’ Motions for Summary Judgment are

GRANTED as to all claims asserted by Rath, including any cross-claims

  

Judge Vivian L. Meclinilll

  

cc: All Counsel of Record (vz`a File&Serve)

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