        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

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

                                   ORDER

        On this 31st day of August, 2016, and upon Defendant Sussex Protection

Service, LLC’s (“Sussex”) Motion for Summary Judgment, it appears to the Court

that:
         1.      This is a negligence action brought by Plaintiff Jason Patton

         (“Plaintiff”) against nine defendants, including Sussex, seeking recovery for

         injuries he sustained on June 10, 2011, resulting from a motor vehicle

         collision between Plaintiff and Third Party Defendant Douglas Riley

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

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

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

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

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

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

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

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

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

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

         construction permit issued by the Delaware Department of Transportation

         (“DelDot”).

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

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

         hired as the general contractor to provide Fibertech Networks, LLC


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


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

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

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

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

who are also defendants: Melcar, Ltd., Inc. (directional drilling), Sussex,

and Malec Construction Company, LLC (backhoe work). At approximately

9:15 pm on the evening of June 10, 2011, as work was being performed by

Danella and several other contractors pursuant to the Permit, 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, Sussex moved for summary judgment on

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

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

that Sussex negligently performed its contractual duties described in its

subcontract with Danella or that it had any control over the area or traffic

control setup that Plaintiff alleges caused the accident. Specifically, Sussex



                                      3
asserts that it merely contracted to provide the equipment and the set up,

which it did, that Danella instructed it as to when the work would be

performed and which DelDot “case” it needed to bring equipment for and

utilize in its set up, that it did not have authority or control to close lanes of

traffic or employ flaggers, and that it had no control over the backhoe

allegedly in the median or the work being performed there. Further, as a

matter of law in Delaware, when a contractor follows a DelDot approved

plan, it is not negligent merely because there may have been another way to

control traffic.

4.     Sussex also argues that Plaintiff’s claim that it violated § 107.1 of

DelDot’s Standard Specifications must be dismissed, because, as a nonparty

to or unintended third-party beneficiary of any contract made with DelDot

allegedly incorporating that provision, Plaintiff lacks standing to enforce the

terms of any DelDot contract. Alternatively, Sussex argues that this contract

claim must be dismissed for failure to state a claim for which relief can be

granted, because Sussex never entered into any contract with DelDot and

Plaintiff was not a party to the contract or Permit between DelDot and

Fibertech.

5.     In opposition to Sussex’s Motion, Plaintiff argues that Sussex was

responsible for safe traffic control during the construction project, which it



                                     4
failed to do, and that such failures proximately caused Plaintiff’s injuries.

Specifically, Plaintiff alleges that Sussex had duties under the Permit to

request permission to work on a Friday night, to close the crossover, to

provide a flagger, and to implement additional traffic controls, and that it

was responsible under its subcontract with Danella to take all reasonable

safety precautions and to comply with all legal requirements pertaining to its

work in order to ensure the safety of persons and property. Further, Plaintiff

alleges that Sussex’s subcontract with Danella incorporates Danella’s Master

Agreement with Fibertech.

6.    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. Sussex argues that it had no duties beyond those established

by its subcontract with Danella, which duties it fulfilled by setting up the

temporary traffic controls specified by Case 3 as directed by Danella. On the

other hand, Plaintiff argues that Sussex assumed greater responsibilities than

simply setting up the traffic controls in its subcontract with Danella,

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

work and to comply with all safety requirements.

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

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



                                    5
       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 Where the defendant’s legal obligation arises by way of contract,

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

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

       consider extrinsic evidence.”7

       8.     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)

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).
7
  Spence v. Layaou Landscaping, Inc., 2013 WL 6114873, at *5 (Del. Super. Oct. 31, 2013)
(quoting GMG Capital Invest., LLC v. Athenian Venture Partners I, L.P., 36 A.3d 776, 783 (Del.
2012)).


                                              6
       that the defendant’s breach was the proximate cause of the plaintiff’s injury. 8

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

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

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

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

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

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

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

       court.”11

       9.     In the case sub judice, Plaintiff alleges that Sussex, a subcontractor

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

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

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

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

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

       as a reasonable contractor in providing services necessary for the protection

       of the traveling public within the construction zone.

8
  Pipher v. Parsell, 930 A.2d 890, 892 (Del. 2007) (citing New Haverford P’ship v. Stroot, 772
A.2d 792, 798 (Del. 2001)).
9
  Id.
10
   Id.; Thurmon v. Kaplin, 1999 WL 1611327, at *2 (Del. Super. Mar. 25, 1999).
11
   Pipher, 930 A.2d at 892 (citations omitted).
12
   Spence, 2013 WL 6114873, at *3 (citing Brown v. F.W. Baird, LLC, 2008 WL 324661, at *3
(Del. 2008)).


                                              7
      10.    Because the evidence provided by the Parties undisputedly

      demonstrates that Sussex did not exercise actual control over the job site,

      despite Plaintiff’s conclusory assumption otherwise, and, instead, took

      direction from Danella as to when and where to set up particular temporary

      traffic controls, the scope of Sussex’s duties is defined solely by its

      subcontract with Danella.

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

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

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

      person in the position of either party would have no expectations

      inconsistent with the contract language, the Court will interpret them

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

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

      provisions in controversy are fairly susceptible of different interpretations or

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

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

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



13
   Jordan v. E.I. Du Pont de Nemours & Co., 1991 WL 18108, at *1 (Del. Super. Feb. 8, 1991)
(citing Klair v. Reese, 531 A.2d 219 (1987) (relying on Restatement (Second) of Contracts,
§ 212 (1981)).
14
   GMG, 36 A.3d at 780.
15
   Id. (citations omitted).


                                            8
       giving effect to all provisions therein.16 Thus, it is axiomatic that “[t]he

       meaning inferred from a particular provision cannot control the meaning of

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

       overall scheme or plan.”17

       12.     The “duty” provisions at issue in Sussex’s Subcontract with Danella

       state, in pertinent part, as follows:

               “1.1(2)      The Subcontract Document consists of . . . (2) The
               contract, subcontract, or other agreement between State of
               Delaware – Department of Transportation (the “Customer”)
               and [Danella] (the “Prime Contract”), including any and all
               Contract Documents enumerated therein, including any and all
               General, Special, Supplementary and other Conditions thereto
               of thereof, and any and all Exhibits thereto, and any and all
               Drawings, Specifications, and Addenda issued prior to the
               execution of the Prime Contract.”18

               “3.1         [Sussex] shall execute the work, perform the labor,
               supervision and other services, and provide the equipment,
               tools, and materials, as required by the terms of this
               Subcontract, including the Subcontract Documents, as generally
               described on Exhibit A . . . and that which is reasonably
               inferable therefrom, in order to achieve the results intended


16
   Id. (citing E.I. du Pont de Nemours & Co., Inc. v. Shell Oil Co., 498 A.2d 1108, 1113 (Del.
1985)).
17
   Id.
18
   Sussex’s Mot. Summ. J., Exh. H, Subcontract Between Sussex and Danella (“Subcontract”), at
§ 1.1(2) (Trans. ID 57794116) (emphasis in original). The Court notes that Plaintiff cites to this
section to support his assertion that Danella’s Master Agreement with Fibertech and all permits
and specifications were incorporated specifically into Sussex’s subcontract. However, Plaintiff
fails to explain why the Court should read Danella’s Master Agreement with Fibertech into this
subcontract in place of Danella’s contract with DelDot. Even so, regardless of this technicality,
Plaintiff fails to demonstrate how the Court should find that the Permit was specifically
incorporated into Sussex’s subcontract with Danella in order to find that Sussex was responsible
for notifying DelDot that construction was taking place on the night in question.


                                                9
                thereby (collectively, the “Work”), in connection with the
                project described on Exhibit A (the “Project”).19

                “Exhibit A: I. [Sussex] shall perform the following Work:
                Supply and set up per state specifications Traffic Control when
                requested by Danella.”20
                “3.2         [Sussex] agrees to perform the Work under the
                direction of [Danella] . . . and to perform the Work in strict
                conformity with the requirements of the Subcontract
                Documents.”21

                “14.4(c)     [Sussex] shall comply with all laws, codes,
                ordinances, rules, regulations, orders, and directives (“Legal
                Requirements”) of any federal, state, or local governmental
                body, board, authority, department, agency, or court . . .
                pertaining to (i) the Work, including providing any notices
                required by any Legal Requirements and securing and paying
                for all permits, licenses and inspections necessary for the
                performance of the Work, and (ii) the employees and other
                personnel employed or engaged by [Sussex].”22

                “14.7          [Sussex] shall take all reasonable safety
                precautions with respect to the Work, and shall comply with all
                Legal Requirements pertaining to, or the safety of persons or
                property, and comply with any safety rules, measures, or
                policies initiated by [Danella] or Customer (collectively,
                “Safety Requirements”).          [Sussex] shall assume full
                responsibility for compliance with all Safety Requirements, and
                shall bear all costs and damages attributable to any failure to so
                comply, and shall indemnify and hold harmless [Danella] . . .
                for all costs, losses, and expenses incurred by any of them . . . .
                [Sussex] shall report immediately to [Danella] any injury to any
                of [Sussex’s] employees or damage to any property on or about
                the Project Site.”23

19
   Id. at § 3.1.
20
   Id. at Exh. A ¶ I.
21
   Id. at § 3.2.
22
   Id. at § 14.4(c).
23
   Id. at § 14.7.


                                             10
13.   Plaintiff’s assertion that, by virtue of its subcontract, Sussex

undertook responsibility for the safety of the traffic controls utilized

throughout the construction project, as well as for warning the public of the

dangers presented by the construction taking place in the median, is belied

by the plain language of the subcontract itself. First, § 3.1 clearly states that

the scope of Sussex’s work, labor, supervision, and other services is

described on Exhibit A and that which is reasonable inferable therefrom.

Second, Exhibit A references only the scope of work required of Sussex and

clearly states that such work is to supply and set up per state specifications

traffic control when requested by Danella. Exhibit A makes no mention of

any discretionary power left to or required of Sussex, and § 3.2 confirms this

omission by clearly stating that Sussex agrees to perform the work under the

direction of Danella and to perform the work in strict conformity with the

requirements of the subcontract documents. Therefore, Sussex’s subcontract

clearly defines the work to be performed by Sussex as merely setting up

traffic controls in accordance with state specifications and at the direction of

Danella.

14.   Plaintiff’s reference to Sussex’s contractual responsibility to take all

reasonable safety precautions and to comply with all legal requirements

pertaining to the work does not include the duty to act as a reasonable



                                    11
       contractor in providing services necessary for the protection of the traveling

       public within the construction zone. As discussed supra, the subcontract

       clearly defined the work as the setting up of traffic controls; thus, § 14.7

       merely requires Sussex to take all reasonable safety precautions with respect

       to its setting up of the specific traffic controls. Plaintiff does not allege that

       his injury was caused during Sussex’s set up; rather, Plaintiff alleges that the

       selected traffic controls were inadequate, because they failed to close the

       crossover and utilize a flagger, which failures caused the collision.

       However, the subcontract did not grant Sussex any duty or commensurate

       power in selecting which state specifications to employ and whether to

       supplement the specified traffic controls with additional, non-mandatory,

       devices based on its independent judgment, despite having no control over

       any of the construction activities occurring at the site.24

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

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



24
   Even if the scope of work Sussex was contractually obligated to perform included the
discretion to select which state specification to employ, this Court has 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. Hales v. English, 2014 WL 12059005, at *2 (Del. Super. Aug. 6,
2014), aff’d sub nom. Hales v. Pennsy Supply, Inc., 115 A.3d 1215 (Del. 2015) (TABLE) (citing
High v. State Highway Dep’t, 307 A.2d 799 (Del. 1979)).


                                              12
      construction zone.25 The plaintiff alleged negligence by the contractor, who

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

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

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

      failure to close the turn lane.26 According to the record, the subcontractor

      had no decision-making authority as to the striping, performed only pursuant

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

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

      jobsite.27 The Court found that, in the absence of any evidence suggesting

      that the subcontractor exercised actual control over or otherwise assumed

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

      the subcontractor and, thus, the contractor had assumed the responsibility of

      protecting the traveling public within the construction zone.28

      16.    Thurmon is analogous to the extent Sussex performed only when

      directed by Danella, undertook to set up traffic control pursuant to state

      specifications, and had no decision-making authority beyond these

      responsibilities. However, because the MUTCD cases at issue require more

      decision-making than merely painting lines and arrows on a road according

25
   1999 WL 1611327, at *1.
26
   Id.
27
   Id.
28
   Id. at *3.


                                         13
to the explicit instruction and under the strict supervision of others, summary

judgment depends on whether Sussex complied fully with the state

specifications to which Danella directed it to set up traffic controls.

However, to be clear, as Sussex assumed no responsibility with regard to

which MUTCD case to employ, Sussex’s liability is limited to whether or

not it fully complied with the set up required by the Case it was directed to

use by Danella.

17.   Sussex’s assertion that it complied with this duty when it set up the

traffic control plan selected by Fibertech and approved by DelDOT—Case 3

from Part 6 of the MUTCD—is confirmed by DelDot testimony but is

disputed by Plaintiff’s expert report. Additionally, 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, “[w]hen any

road intersects the roadway on which work is being performed, additional

traffic 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. Therefore, when viewing the record in

a light most favorable to Plaintiff, there are factual disputes as to whether

Sussex fully complied with its traffic set up as directed by Danella. Thus,

Defendant’s Motion is DENIED as to Plaintiff’s general negligence claims.



                                   14
       18.    However, because it is undisputed that the underlying construction

       project was not a DelDot construction project, that DelDot was not a party to

       any of the construction contracts, and that the Permit does not specifically

       incorporate or invoke DelDot’s Standard Specifications, Plaintiff’s claims

       premised solely on Defendant’s alleged violation of § 107.10 fail to state a

       claim upon which relief can be granted.29 Therefore, Defendant’s Motion is

       GRANTED as to Plaintiff’s allegations that Defendant was negligent when

       it violated § 107.10 of DelDot Standard Specifications, and, accordingly,

       Count VII of the complaint is DISMISSED.

       19.    For the foregoing reasons, Sussex’s Motion for Summary Judgment is

       GRANTED, IN PART, AND DENIED, IN PART.

       IT IS SO ORDERED.

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

cc: Prothonotary




29
   See Thurmon, 1999 WL 1611327 (DelDot highway construction project); DelDot Standard
Specifications §101.17 (Aug. 2001) (defining “contract” as “[t]he written Agreement between
the Department and the Contractor setting forth the obligation of the parties for the performance
of the work”); id. at § 101.21 (defining “Contractor” as “[t]he individual or legal entity
contracting with the Department for performance of the work”); id. at § 101.25 (defining
“Department” as “Delaware Department of Transportation”).


                                               15
