      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 Defendants Danella Line

Services   Company,   Inc’s   (“Danella”)   and   Fibertech   Networks,   LLC’s

(“Fibertech”) (collectively, “Defendants”) Motion for Summary Judgment Against
Plaintiff Jason Patton, 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 Defendants, 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 by the

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

         and southbound lanes of Route 13, as well as by the presence of construction

         lights and equipment in the median at the crossover. Plaintiff asserts that

         Defendants are liable for his injuries, because they failed to implement

         reasonable safety precautions at the worksite, failed to warn of the danger

         they created, failed to protect the traveling public, and failed to comply 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, Danella was hired as the general contractor to provide 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.


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


                                                    2
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, Ltd., Inc., Sussex Protection Service,

LLC, and Malec Construction Company, LLC. 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, Defendants moved for summary judgment on

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

could prevent summary judgment on their behalf, because there is no

evidence that Defendants breached any duty of care owed to Plaintiff or

proximately caused the collision.        Specifically, Defendants argue that,

because they properly designed and executed the traffic control plan in

accordance with the Delaware Manual on Uniform Traffic Control Devices

(“MUTCD”), they were not negligent as a matter of law. Defendants further



                                     3
argue that there is no evidence in the record that the construction obstructed

Mr. Riley’s view of the roadway and, thus, Plaintiff cannot establish

causation.

4.    Plaintiff opposes Defendants’ Motion on the basis that Defendants

had a non-delegable duty to protect the traveling public within the

construction zone, which they breached by failing to comply with the

Permit, failing to comply with Case 7 of the MUTCD, and failing to

otherwise act reasonably under the circumstances. Plaintiff contends that, at

the time of the collision and during the time the worksite was set up,

Defendants were in violation of the Permit for having failed to notify the

Delaware Department of Transportation of their plans to work on a Friday

night and acted unreasonably by not closing the crossover or using a flagger,

which created a danger to the traveling public. Further, Plaintiff argues that

the Rileys’ testimony undisputedly shows that the construction equipment

and lights blocked Mr. Riley’s vision, which proximately caused the

collision.

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

issue of duty.   Defendants recognize that they had a duty to act as a

reasonable, prudent contractor in protecting the traveling public within the



                                   4
       construction zone. However, Defendants argue that they satisfied their duty

       by complying with the MUTCD, citing to Hales v. English, et al. for

       support. On the other hand, Plaintiff cites to Thurmon v. Kaplin in arguing

       that Defendants’ common law duty also included an obligations above and

       beyond the minimal requirements imposed by the Permit and MUTCD.

       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

       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


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
  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).


                                              5
       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.7

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

       defendant is entitled to judgment as a matter of law.8 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.9 “[W]hether a duty exists is entirely a question of law, to be

       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.”10

       8.      As to the issue of duty sub judice, Defendants owed a duty to the

       traveling public, which includes Plaintiff, to act with reasonable care in

       providing the services necessary to ensure safe travel through the

       construction zone.11 However, the issue of how a contractor might satisfy



7
  Pipher v. Parsell, 930 A.2d 890, 892 (Del. 2007) (citing New Haverford P’ship v. Stroot, 772
A.2d 792, 798 (Del. 2001)).
8
  Id.
9
  Id.; Thurmon v. Kaplin, 1999 WL 1611327, at *2 (Del. Super. Mar. 25, 1999).
10
   Id. (citations omitted).
11
   See Thurmon, 1999 WL 1611327, at *3 (citing Seitz v. A-Del Constr. Co., 1987 WL 16711, at
*7 (Del. Super. Aug. 13, 1987)) (“Tilcon, as the general contractor, assumed the responsibility of


                                                6
       this duty of care is less clear. In Thurmon v. Kaplin, the plaintiff alleged that

       the defendants were negligent in failing to provide temporary striping in an

       area of roadway undergoing repaving, which negligence caused the plaintiff

       to collide with another vehicle when that vehicle turned right from a thru-

       lane across the unmarked turn lane in which the plaintiff was traveling.12

       The general contractor, who had contracted with DelDot to complete the

       road improvement project in accordance with the MUTCD, subcontracted

       with another company to actually paint the temporary striping on the

       roadway, and the record showed that the subcontractor took direction

       explicitly from DelDot and the general contractor as to when and where to

       paint the lane striping.13       Ultimately, this Court found that, while the

       MUTCD did not impose any affirmative, independent duty on the contractor

       in control of the worksite to stripe the highway, summary judgment in favor

       of the general contractor was not appropriate under the circumstances in

       light of the general common law duty of reasonable care imposed on

       contractors to protect the public traveling through the area under

       construction.14 In so holding, the Court explained in a footnote that:



providing services necessary for the protection of the traveling public within the construction
zone.”).
12
   Id. at *1.
13
   Id.
14
   Id. at *2-3.


                                              7
              “It could be that [the contractor] is entitled to rely on DelDOT’s
              discretionary decisions pursuant to High v. State Highway
              Dep’t, Del. Supr., 307 A.2d 799, 803-04 (1973) (holding that if
              the detour, warning signs and other safeguards were erected in
              accordance with the plan approved by the Highway
              Department, there is, as a matter of law, no proof of negligence
              on the party of the contractor). The record here, however, is
              incomplete as to what, if any, planning decisions were made
              regarding traffic flow during non-construction hours.”15

       9.     Fifteen years later, this Court was confronted with another negligence

       action involving a construction zone in Hales v. English, where the plaintiff

       alleged that the contractor’s negligence in preparing the traffic control plan

       and in failing to properly execute it caused her vehicle to collide with

       another.16 In granting summary judgment to the contractor, this Court held,

       as was recently affirmed by the Delaware Supreme Court, that “if a

       contractor is controlling traffic at a construction site pursuant to a DelDot-

       approved traffic control plan prepared in accordance with the [MUTCD],

       then [the contractor] cannot be held liable for an action in negligence

       provided that it was actually following the approved plan” simply because

       there might have been another way to control the traffic.17              The Court

       reasoned that, because the “MUTCD is published by DelDot and is issued to

       prescribe uniform standards and specifications for all traffic control devices

15
   Id. at *3 n.6.
16
   2014 WL 12059005, at *1 (Del. Super. Aug. 6, 2014), aff’d sub nom. Hales v. Pennsy Supply,
Inc., 115 A.3d 1215 (Del. 2015) (TABLE).
17
   Id. at *2 (citing High v. State Highway Dep’t, 307 A.2d 799 (Del. 1979)).


                                             8
       in Delaware,” it sets forth “the applicable standard by which [the

       contractor’s] actions must be judged.”18 In so holding, the Court explicitly

       relied on High v. State Highway Department, which explicitly rejected the

       argument that the contractor should have controlled the traffic in a different

       manner.19

       10.     Plaintiff’s argument that Hales is distinguishable simply for the fact

       that it involved a DelDot construction project, as opposed to a private

       construction project as here, is unpersuasive, because the issue of sovereign

       immunity was irrelevant to the Court’s determination regarding the

       contractors’ common law duty of care and, there as well as here, DelDot

       approved the traffic control plan that was designed and submitted to it by

       others.20 Furthermore, a closer reading of Thurmon—especially footnote six

       of the opinion reproduced supra—suggests that Thurmon is partly

       distinguishable on the basis that it addressed allegations of negligence

       against a contractor for a collision that occurred during non-construction

       hours, the only allegations of negligence involved the lack of traffic controls,

18
   Id.
19
   Id.; see High, 307 A.2d at 804 (“We think it is clear that if there are two acceptable courses of
action for the achievement of the same purpose, it is not negligence on the part of a defendant to
pursue one rather than the other.”).
20
   To be sure, summary judgment was actually granted to the State on the basis of the public duty
doctrine and not statutory immunity, and this Court pointed out that, but for application of the
public duty doctrine, the plaintiffs’ claims against the State for its own alleged breach of duty
and for the alleged negligence of the officer who was flagging traffic would have gone forward.
Id. at *3-4.


                                                 9
       and summary judgment was denied because the record failed to address

       whether or not the contractor was entitled to rely on DelDot-approved plans

       as in High, on which Hales was later decided.

       11.     Therefore, to the extent Plaintiff alleges that Defendants were

       negligent in failing to maintain safe travel of the roadways through the

       construction site à la Hales—i.e., by not complying with the MUTCD and

       not imposing additional safeguards—the applicable standard of care is set

       forth by the MUTCD, as required by the Permit. However, to the extent

       Plaintiff alleges that Defendants were negligent in failing to appropriately

       supervise the construction site and its subcontractors who were working at

       the time of the collision, Hales is distinguishable and, thus, the applicable

       standard of care is that of a reasonable and prudent contractor under the

       circumstances as applied in Thurmon.21

       12.     It is undisputed that the provisions of the Permit, which was issued to

       Fibertech by Delaware’s Division of Maintenance and Operations, set forth

       certain requirements with which Defendants had a duty to comply under the

       circumstances.22        According to the plain language of the Permit, the



21
   Cf. id. at *4 (holding that if the public duty doctrine did not apply and, thus, the State did owe
a duty of care to the plaintiffs, it would be responsible for the allegedly negligent actions of the
officer who was directing traffic at the time of the collision).
22
   Danella undertook the same duty of care as Fibertech when it contracted with Fibertech, as
general contractor, to perform the work required to complete Fibertech’s cable project. See


                                                 10
       Permittee had a duty (1) to “[c]ontact Inspector prior to starting any work,”

       (2) to “call the Division of Maintenance and Operations Permit Section . . .

       24 hours prior to any installation on State rights-of-way, and (3) to

       implement traffic control “in accordance with Delaware Manual on Uniform

       Traffic Control Devices.”23 Therefore, Defendants contractually assumed

       these responsibilities. However, because there is conflicting testimony as to

       whether Defendants contacted DelDot prior to working and, as discussed

       more fully below, uncertainty as to which MUTCD case actually applies

       under the circumstances, the record contains disputed facts as to whether or

       not Defendants fully complied with these terms, which precludes summary

       judgment on this basis.

       13.    As to which MUTCD temporary traffic control “case” applies under

       the circumstances, the Parties’ experts disagree.              Therefore, summary

       judgment is also not appropriate on this basis.               It follows, then, that

       Defendants’ assertion that they fully complied with the applicable case must

       also go to the finder of fact, even where DelDot’s testimony regarding

       compliance appears undisputed.24


Stipulation of Fact ¶ 2; Pl.’s Ans. Br., Exh. A (Master Agreement Between Fiber Technologies
Construction Company, LLC and Danella) (Trans. ID 58320995).
23
   Ltr. to Court fr. Danella & Fibertech, Exh. B at 1 (Jul. 12, 2016) (Trans. ID 59264284).
24
   In fact, the Court notes that, while much argument has been exchanged as to what constitutes
an “intersection” in relation to Note 13 of Case 3 and Note 14 of Case 7, both of which state,
“When any road intersects the roadway on which work is being performed, additional traffic


                                              11
       14.    Lastly, as to the issue of causation, the testimony of the Rileys, which

       both Parties cite for opposing propositions, does not “unequivocally”

       establish that their view of Route 13 southbound was unobstructed at the

       time of the collision, particularly where portions of it sound in hindsight.

       Plaintiff has presented other testimony from DelDot inspectors, which

       supports his argument that the backhoe was, in fact, blocking Mr. Riley’s

       view of the Route 13 southbound.25 As a result, the record contains disputed

       facts as to whether or not Defendants’ alleged breaches of duty proximately

       caused the collision, which caused Plaintiff’s injuries.

       15.    Therefore, because Plaintiff has pointed to evidence in the record that,

       when viewed in the light most favorable to Plaintiff, contradicts Defendants’

       assertion that on June 10, 2011, their actions were in full compliance with

       both the Permit and the relevant MUTCD specifications and raises material

       questions of fact as to whether Defendants actions’ or inactions proximately

       caused the collision, summary judgment as to Plaintiff’s claims against

       Defendants must be DENIED.




controls shall be erected as directed by the Chief Traffic Engineer or designee,” neither Note
even references an “intersection” and neither party has addressed the limiting language.
25
   Of course, Plaintiff has not established that merely using a backhoe in the median constitutes
negligence, but, as previously discussed in relation to duty, the determination of whether such
conduct was reasonable is a determination of fact for the jury.


                                               12
     16.   Accordingly, for the foregoing reasons, Defendants’ Motion for

     Summary Judgment is hereby DENIED.

     IT IS SO ORDERED.

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

cc: Prothonotary




                                   13
