Carroll v. Getty Oil Co., Civ. A. No. 79-268.

• Decision Date: 27 August 1980
• Docket Number: Civ. A. No. 79-268.
• Citation: 498 F. Supp. 409
• Parties: Thomas CARROLL and Grace Carroll, Plaintiffs, v. GETTY OIL COMPANY, a Delaware Corporation, Getty Refining and Marketing Company, a Delaware Corporation, and Getty Oil Company (Eastern Operation), Inc., a Delaware Corporation, Defendants.
• Court: U.S. District Court — District of Delaware

498 F. Supp. 409

Thomas CARROLL and Grace Carroll, Plaintiffs, v. GETTY OIL COMPANY, a Delaware Corporation, Getty Refining and Marketing Company, a Delaware Corporation, and Getty Oil Company (Eastern Operation), Inc., a Delaware Corporation, Defendants.

Civ. A. No. 79-268.

United States District Court, D. Delaware.

August 27, 1980.

James W. Semple of Flanzer & Isaacs, Wilmington, Del., for plaintiffs.

William F. Taylor and Barry M. Willoughby of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for defendants.

MEMORANDUM OPINION

LATCHUM, Chief Judge.

This action, based on diversity of citizenship,¹ was brought by plaintiffs, Thomas Carroll and his wife Grace, against Getty Oil Company, Getty Marketing and Refining Company, and Getty Oil Company (Eastern Operations), Inc. The plaintiffs seek compensatory and punitive damages for personal injuries suffered by Mr. Carroll while he was operating a Milton Form Rolling Machine ("MFRM") owned by Getty Marketing and Refining Company ("Getty") which was located at Getty's refinery at Delaware City, Delaware. Plaintiffs have moved for partial summary judgment on issues relating to negligence per se, proximate cause, contributory negligence, assumption of risk, and punitive damages.

While many of the facts are contested, the Court has found the following facts to be essentially undisputed: Plaintiff Thomas Carroll, a trained boilermaker, was at all times pertinent to this action an employee of Catalytic, Inc. ("Catalytic").² Catalytic, a separate and distinct corporate entity from Getty was under contract with Getty to perform certain types of maintenance work for the latter at its Delaware City refinery.³ On the night of September 24, 1977, Mr. Carroll was working in the toolroom of the Maintenance and Construction Building at the refinery.⁴ He and another Catalytic employee, Jim Hall, were rolling stainless steel mesh on the MFRM.⁵ Although both men were using the machine, each worked independently, performing all the necessary tasks alone.⁶ At the time Mr. Carroll was wearing welding gloves in order to protect his hands from being cut by the sharp edges of the wire mesh he was handling.⁷ As Mr. Carroll was feeding a piece of wire mesh into the MFRM, the machine caught the edge of his glove and his left hand was pulled into the machine. Noticing his predicament, but unable to reach its controls with his right hand, Mr. Carroll vainly attempted to pull his hand out of the glove and away from the machine, ripping the glove in the process. By the time Mr. Hall realized what was happening and turned off the MFRM, Mr. Carroll had already managed to tear his hand out of the machine, leaving part of his hand and the glove behind.⁸ As a result of his accident, Mr. Carroll's left middle and index fingers were partially amputated and his left ring finger was damaged.⁹

On June 6, 1979, plaintiffs brought this negligence action seeking compensatory and punitive damages for the injuries suffered by Mr. Carroll in this incident.

The second amended complaint alleges that Getty was negligent in five respects and that such negligence proximately caused Mr. Carroll's injuries. Specifically, plaintiffs allege that Getty was negligent in that it:

(a) supplied to plaintiff a piece of machinery which it knew or should have known was, or was likely to be, dangerous for the use to which it was supplied;

(b) failed to exercise reasonable care to make the machinery safe for the use to which it was supplied;

(c) failed to exercise reasonable care to discover the machinery's dangerous condition and to inform plaintiff thereof;

(d) failed to warn the plaintiff of the dangerous condition of the supplied machinery;

(e) failed to comply with the then existing and applicable federal and state safety regulations, including but not limited to, 29 C.F.R. § 1910.212.¹⁰

Getty has denied these allegations and has raised the affirmative defenses of contributory negligence and assumption of risk.¹¹ Plaintiffs have moved for partial summary judgment requesting that an order be entered declaring that:

1. Getty's lack of compliance with existing and applicable federal and state safety standards constitutes negligence as a matter of law;

2. Getty may not avail itself of the defenses of contributory negligence and assumption of risk;

3. Getty's failure to comply with the existing and applicable federal and state safety standards was a proximate cause of plaintiff's injuries;

4. Getty's conduct in consciously disregarding the above-referenced safety standards justifies the jury being instructed on the law of punitive damages.¹²

Plaintiffs in moving for summary judgment face an extremely heavy burden in this Circuit. Consequently, this Court's consideration of their motion is governed by the following stringent standards set forth in United States ex rel. Jones v. Rundle, 453 F.2d 147, 150 (C.A.3, 1971):

Summary judgment is proper only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. Rule 56(c). "Any doubt as to the existence of a genuine issue of fact is to be resolved against the moving party.... Documents filed in support of a motion for summary judgment are to be used to determine whether issues of fact exist and not to decide the fact issues themselves." Krieger v. Ownership Corp., 270 F.2d 265, 270 (3d Cir. 1959); accord, Bowman Steel Corp. v. Lumbermens Mutual Casualty Co., 364 F.2d 246 (3d Cir. 1966); Janek v. Celebrezze, 336 F.2d 828 (3d Cir. 1964). The burden of demonstrating the justification for a motion for summary judgment lies with the movant. Adickes v. S. H. Kress & Co., 398 U.S. 144, 153-161, 90 S.Ct. 1598, 1606-1610, 26 L.Ed.2d 142 (1969).

"Summary judgment may not be granted where there is the slightest doubt as to the facts." Tomalewski v. State Farm Ins. Co., 494 F.2d 882, 884 (C.A.3, 1974). Moreover, summary judgment is even unwarranted in cases where the basic underlying facts are undisputed if rational opposing inferences as to the ultimate facts could be drawn from those undisputed facts. Carpenter International, Inc. v. Kaiser Jamaica Corp., 369 F.Supp. 1138 (D.Del.1974). On the basis of the foregoing principles, the Court has concluded that plaintiffs have failed to meet their burden and that summary judgment is not warranted on any issue whatsoever.

1. Negligence per se.

Plaintiffs first contend that they are entitled to summary judgment declaring that Getty was negligent per se because it failed to comply with certain regulations ("OSHA regulations") adopted by the Federal Occupational Safety and Health Administration ("OSHA"), which regulations have also been adopted by reference as Delaware State Regulations by the Delaware Department of Labor pursuant to 19 Del.C. § 106(a) (1974).¹³ Specifically, plaintiffs contend that Getty violated 29 C.F.R. § 1910.212 because Getty failed to equip the MFRM with certain safety devices allegedly mandated by that regulation, namely, "a brake-type foot motor or deadman's switch." Getty contends that 29 U.S.C. § 653(b)(4) precludes the use of any alleged violation of OSHA standards for the purpose of establishing negligence per se. See, Otto v. Specialties, Inc., 386 F.Supp. 1240 (N.D.Miss.1974); see also, Jeter v. St. Regis Paper Co., 507 F.2d 973 (C.A.5, 1975); Skidmore v. Travelers Insurance Co., 356 F.Supp. 670 (E.D.La.1973), aff'd 483 F.2d 67 (C.A.5, 1973). Getty further contends that summary judgment is unwarranted on this issue in any case because there is a dispute of fact as to whether Getty was responsible for assuring that the MFRM conformed to OSHA regulations.

In a diversity case, this Court is clearly required to apply Delaware law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Delaware law, conduct in violation of a statute, ordinance, rule, or regulation enacted for the safety of others and having the force of law constitutes negligence per se. Sammons v. Ridgeway, 293 A.2d 547 (Del. Sup.Ct.1972); Rabar v. E. I. DuPont de Nemours & Co., Inc., 415 A.2d 499 (Del.Super.Ct.1980); Schwartzman v. Weiner, 319 A.2d 48 (Del.Super.Ct.1974); Nance v. Rees, 2 Storey 533, 161 A.2d 795 (Del.Super.Ct. 1960); Wealth v. Renai, 10 Terry 289, 114 A.2d 809 (Del.Super.Ct.1955); Hetherton v. Sears, Roebuck & Co., 593 F.2d 526 (C.A.3, 1979); Taylor v. Pa. Railroad Co., 246 F.Supp. 604 (D.Del.1965). In order to establish that a defendant has been negligent per se a plaintiff must show (1) that the statute, ordinance, rule or regulation invoked by plaintiff embodies a "standard of conduct designed to protect from injury or harm a class of persons of which the plaintiff is a member," (2) that the defendant is a person required to conform to the minimum standards so imposed, and (3) that the defendant has in fact deviated from those standards. Rabar v. E. I. DuPont de Nemours & Co., Inc., supra at 503; Schwartzman v. Weiner, supra at 54-55.

It is clear in the present case that the regulations invoked by the plaintiffs "embody a standard of conduct designed to protect from injury or harm a class of persons of which the plaintiff is a member." The State regulations and the statute pursuant to which they were adopted were promulgated for the express purposes of "preventing accidents or ... industrial or occupational diseases" and rendering places of employment safe. 19 Del.C. § 106(a) (1974). Indeed, in Rabar v. E. I. DuPont de Nemours & Co., Inc., supra, the Delaware Superior Court held that where one who is responsible for implementing OSHA safety regulations, which have been adopted by the Delaware Secretary of Labor as Delaware regulations, violates those regulations, the violator is negligent per se. Getty nevertheless contends that 29 U.S.C. § 653(b)(4)¹⁴ expressly forbids the use of any alleged violation of OSHA standards for the purpose of establishing negligence per se. The Rabar court addressed...