          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR KENT COUNTY


HENRY R. DAVENPORT and                       :
LUCINDA DAVENPORT,                           :     C.A. No: K14C-04-025 RBY
                                             :
            Plaintiffs,                      :
                                             :
     v.                                      :
                                             :
D&L CONSTRUCTION, LLC, DAVID                 :
MILLER and JOSEPH MILLER,                    :
                                             :
            Defendants.                      :
                                             :


                              Submitted: June 17, 2015
                              Decided: August 14, 2015


                          Upon Consideration of Defendants’
                           Motion for Summary Judgment
                                      DENIED

                                      ORDER

Benjamin A. Schwartz, Esquire, Schwartz & Schwartz, Dover, Delaware for
Plaintiffs.

Stephen A. Hampton, Esquire, Grady & Hampton, P.A., Dover, Delaware for
Defendants.




Young, J.
Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

                                        SUMMARY
       Henry R. Davenport (“Davenport,” and together with Lucinda Davenport,
“Plaintiffs”) was enlisted by D&L Construction, LLC (“Defendant D&L”) together
with David Miller (“Defendant David Miller”) and Joseph Miller (“Defendants”) to
drive its employees to and from construction job sites. Davenport was allegedly
injured while present at one of the job sites, having fallen through a hole in the floor
of a building being constructed by Defendants.
       Following this incident, Davenport filed a worker’s compensation claim with
the Industrial Accident Board (“IAB”). The IAB denied Davenport’s claim, finding
that he was not an employee of Defendants. Around the same time, Plaintiffs filed the
current negligence action against Defendants with this Court. Defendants move for
summary adjudication of the claims currently before this Court.
       The premise of Defendants’ motion is that Plaintiffs cannot prove, based upon
the factual record, that Defendants acted intentionally, wantonly, or willfully in
causing Davenport’s fall. Defendants argue that this is the negligence standard
necessary to succeed on Plaintiffs’ claim. This is based on the assertion that
Davenport was not a business invitee at the time of his accident. That determination
is not fully resolved. Indeed, Plaintiffs’ primary response to Defendants’ motion is
that Davenport was, in fact, a business invitee, and thus the ordinary common law
negligence standard governs. Finding that Davenport’s status at the construction site
is a material fact in dispute, the Court DENIES Defendants’ motion.




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Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

                               FACTS AND PROCEDURES
       Davenport was hired by Defendant D&L to drive its employees1 to and from
various job sites, since, for religious reasons, these employees could not operate
motor vehicles. Defendant D&L is in the construction business. Although there is
some dispute among the parties as to the extent of any peripheral duties Davenport
may have had, there is some evidence, that on occasion, Davenport aided in
construction work. There is also evidence, however, that Davenport was specifically
instructed not to engage in said work. In addition, the parties disagree as to whether
Davenport was permitted to leave the job site between driving duties, or whether he
was instructed to remain until Defendant D&L’s employees had finished working for
the day.
       On May 10, 2012, during one of these construction projects, Davenport
remained at the job site while Defendant D&L’s employees worked. It came to pass
that one of the employees needed assistance moving a piece of framed wall into place,
and Davenport attempted to help. On that same day, one of the other employees had
cut a hole in the floor, but had not yet removed the wood. While attempting to aid the
employee with the framed wall, Davenport fell through the cut-out hole, allegedly
sustaining injuries.
       Following the accident, Davenport filed a petition for worker’s compensation
insurance with IAB. IAB denied Davenport’s petition on February 24, 2014, finding
that Davenport was an independent contractor and, thus, not eligible for worker’s



       1
           Including Defendants David Miller and Joseph Miller.

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Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

compensation insurance. On April 23, 2014, Plaintiff filed this present action
sounding in negligence against Defendants. Subsequently, Davenport appealed the
IAB’s ruling to the Superior Court in Sussex County. On July 8, 2014, this Court
stayed resolution of this suit, pending the Sussex Court’s decision. On October 27,
2014, the Superior Court for Sussex County affirmed the IAB’s findings. Defendants
now move for summary judgment.
                                    STANDARD OF REVIEW
         Summary judgment is granted upon showing that there is no genuine issue of
material fact, where the moving party is entitled to judgment as a matter of law.2 The
Court views the evidence in the light most favorable to the non-moving party. 3 The
moving party bears the burden of showing that no material issues of fact are present,
though once a motion is supported by such a showing, the burden shifts to the non-
moving party to demonstrate that there is a genuine dispute as to material issues of
fact.4
                                          DISCUSSION
         Before embarking upon the merits of Defendants’ motion for summary
judgment, the Court notes its communication with the parties, concerning the
framework within which to view Plaintiffs’ claim. By letter dated June 23, 2015, this
Court questioned the parties as to why they viewed their relationship as governed by


         2
             Super. Ct. Civ.R. 56(c).
         3
             Windom v. Ungerer, 903 A.2d 276, 280 (Del. 2006).
         4
             Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).

                                                  4
Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

the law concerning entry on to land. That is, the respective negligence standards
advocated by each party were tied directly to Davenport’s status on the land where
he was allegedly hurt. The Court suggested that the ordinary negligence standard of
anyone performing work on a job site, as it would have existed before the invention
of worker’s compensation, might be the more appropriate framework for Plaintiffs’
claim.
         In response to the Court’s inquiry, the parties argued that pre-worker’s
compensation law has been abrogated by Delaware statute, and further, that the
Restatement (Second) of Torts, contemplates the relationship between the parties as
presented in Plaintiffs’ claims. Specifically, Section 384 states:
                   One who on behalf of the possessor of land erects a
                   structure or creates a condition on the land, is subject to the
                   same liability...as though he were the possessor of the land,
                   for physical harm caused to others upon and outside of the
                   land by the dangerous character of the structure or other
                   condition while the work is in his charge.5
         Defendants, who were employed by the possessor of the land to build a
structure, are, thus, said to be covered by Section 384. Hence, the parties’ relationship
to one another, at the time of the incident at issue, is subject to this entry onto land
framework.
         Defendants’ motion for summary judgment assumes that the applicable
negligence standard requires Plaintiffs to plead a case for intentional, wanton, or
willful action on the part of Defendants, leading to Plaintiffs’ alleged injuries. This


         5
             Restatement (Second) of Torts, § 384 (1965).

                                                   5
Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

is because Defendants’ argument assumes that Davenport was a licensee, guest
without payment, or a trespasser. However, as Plaintiffs’ response to Defendants’
motion evidences, Davenport’s status on the property in question is far from settled.
This issue must first be resolved, whether through discovery, or by in limine hearing,
or at trial. It is at least partially a factual matter, thus making Defendants’ request for
summary adjudication premature.
       The key factual controversy surrounds Davenport’s relationship to Defendants
on the day in question. As an initial matter, both parties agree that Davenport was
retained by Defendants to drive the employees to and from various construction job
sites.6 There is not, however, agreement concerning Davenport’s additional duties.
Plaintiffs contend that Davenport was not permitted to leave certain construction
sites, including the property in question, until the employees he was hired to transport
had finished their daily tasks. Defendants, meanwhile, assert that Davenport was free
to leave at any time, having only to return at the end of the workday to pick up the
employees. In addition, the parties disagree on whether Davenport, during the times
he did remain on the job site, was instructed to aid the employees in their construction
work. Plaintiffs allege that Davenport was, at certain times, asked to help, though
Plaintiffs seem to acknowledge that Defendant David Miller had admonished
Davenport “not to interfere.”

       6
         This is reinforced by the factual findings in the related decision Davenport v. D&L
Construction & Solid Walls, LLC, 2014 WL 5649756 (Del. Super. Ct. Oct. 27, 2014) in which
the Superior Court upheld the ruling of the IAB, finding that Davenport was not due worker’s
compensation insurance as he was not an employee. The Court notes that, although arising from
identical factual circumstances as the case at bar, the Davenport decision does not appear to
preclude any potential findings in the present litigation, and neither party so alleges.

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Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

       From the present record, it appears that Davenport’s role with Defendants was
in flux, or at least, ill-defined. Significant to this case is what Davenport was hired
to do for that particular construction site, on that particular day on which he was
allegedly injured. The resolution of these questions may establish Davenport’s status
on the property in question at the time of his purported accident, and could determine
the resulting requisite negligence standard.
       Defendants argue that Davenport was a licensee (i.e.: “guest without payment”)
or a trespasser, as the established agreement with Davenport was limited to the
transportation of employees to and from construction sites. Therefore, according to
Defendants, Davenport’s presence at the construction site was not commissioned by
Defendants. Plaintiffs, on the other hand, insist that, although Davenport was
primarily enlisted as a driver, he was asked to, and did assist with construction work.
Seeing the latter duties as beneficial to Defendants, Plaintiffs argue Davenport was
a business invitee. As opposed to licensees or trespassers, business invitees are
provided higher protections while on property, and only ordinary negligence must be
pled, as opposed to intentional, willful, or wanton conduct.7
       The Restatement (Second) of Torts § 332 (1965)8 defines a business invitee in
relevant part as: “[a] person who is invited to remain on land for a purpose directly



       7
         See e.g., Rennick v. Glasgow Realty, Inc., 510 F.Supp. 638, 642 (D. Del. 1981); Hoesch
v. Nat’l R.R. Passenger Corp., 677 A.2d 29, 32 (Del. 1996).
       8
        “In determining status of occupiers of land in the context of tort claims [the Delaware
Supreme] Court has traditionally adhered to common law as crystallized in the Restatement
(Second) of Torts.” DiOssi v. Maroney, 548 A.2d 1361, 1365-1366 (Del. 1988).

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Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

or indirectly connected with the business dealings with the possessor of the land.” 9
In addition, Plaintiffs cite Comment e of § 332 in support of their position that
Davenport was an invitee:
    The second class includes those who come upon land not open to public, for
    a purpose connected with business which the possessor conducts upon the
    land, or for a purpose connected with their own business which is connected
    with any purpose, business or otherwise, for which the possessor uses the
    land. Thus a truck driver from a provision store who enters to deliver goods
    to a private residence is a business visitor; and so is a workman who comes
    to make alterations or repairs on land used for residence purposes.10
       From this authority, in order for Davenport to have been a business invitee at
the time of his injury, his presence at the construction site needed to be related to
Defendants’ business on that site. In view of the facts, the business on the property
in question was the construction of a building. Therefore, as per § 332, Davenport’s
being on the land had to be upon invitation, and was required “directly” or
“indirectly” to serve some purpose relating to the construction.11 Comment e’s
illustration of a truck driver delivering provisions is similar to our circumstance,
except that Davenport was not injured upon depositing the employees from his
vehicle. Davenport was alleged to have been hurt while attempting to assist in the
construction work – presumably, after his driving tasks were completed.
       As such, two factual issues concerning this chain of events are in dispute. The


       9
           Restatement (Second) of Torts, § 332 (1965).
       10
            Id., comment e.
       11
            Restatement (Second) of Torts, § 332 (1965).

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Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

first relates to whether Davenport was invited by Defendants’ to remain on the site.
Plaintiffs argue Davenport was not permitted to leave, while Defendants’ aver
Davenport was free to go. Moreover, Defendants argue that Davenport was
specifically told not to intervene, indicating he was, on the contrary, unwelcome. The
second, related issue is, if invited to stay, the extent of Davenport’s role. Was he
solely a driver, or was he also expected to assist with construction? Moreover, if only
the former, is that sufficiently related to Defendants’ business at the construction site,
such that Davenport’s presence was beneficial? These factual questions, on which the
parties disagree, must first be resolved before the situation may be stated, as a matter
of law. Where there is a dispute as to such material issues of fact, summary judgment
must be denied.12
       The parties are in further discord concerning the applicability of 25 Del. C. §
1501, also known as the “Guest Statute,” which states in relevant part:
    No person who enters onto private residential or farm premises owned or
    occupied by another person, either as a guest without payment or as a
    trespasser, shall have a cause of action against the owner or occupier of such
    premises for any injuries or damages sustained by such person while on the
    premises unless such accident was intentional on the part of the owner or
    occupier or was caused by the willful or wanton disregard of the rights of
    others.13
The significance of whether this statute applies to the current factual circumstances
is, again, related to the negligence standard Plaintiffs must plead. This determination



       12
            Super. Ct. Civ. R. 56(c).
       13
            25 Del. C. § 1501.

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Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

is, similarly, governed by Davenport’s status. As the Guest Statute reads, its
applicability is limited to “guest[s] without payment or...trespasser[s].” Indeed, at the
point the individual coming on to the property “confers a benefit on the occupier” the
Guest Statute no longer applies.14 The negligence standard, then, becomes that of
common law ordinary negligence.15 Whether the Guest Statute applies is, like the
proper negligence standard, undeterminable until the threshold status issue is
ascertained.
         As there remain factual disputes regarding Davenport’s status at the
construction site on the day of his accident, this Court cannot, as a matter of law, hold
that Plaintiffs have failed to plead their negligence case sufficiently. Based upon the
record at hand, no one, definitive conclusion must be reached by a reasonable trier of
fact as to whether Davenport was a business invitee, licensee or trespasser.16
Therefore, the Court DENIES Defendants’ motion for summary judgment at this
time.
                                         CONCLUSION
         The evidence extant demonstrates the existence of a genuine factual dispute
which is not suitable for resolution by summary judgment. Defendants’ motion is
DENIED.




         14
              Hoksch, 283 A.2d at 688.
         15
              Hoesch, 677 A.2d 29.
         16
              Upshur v. Bodie’s Dairy Market, 2003 WL 21999598, at *3 (Del. Super. Ct. Jan. 22,
2003).

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Davenport, et. al. v. D&L Construction, LLC, et. al.
C.A. No.: K14C-04-025 RBY
August 14, 2015

       IT IS SO ORDERED.
                                                /s/ Robert B. Young
                                                           J.
RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution




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