Chesapeake and Potomac Telephone Co. of Maryland v. Chesapeake Utilities Corp.

• Decision Date: 10 September 1981
• Citation: 436 A.2d 314
• Parties: CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLAND, Defendant-Third Party Plaintiff Below, Appellant, v. CHESAPEAKE UTILITIES CORPORATION, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 314

436 A.2d 314

CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF MARYLANDDefendant-Third Party Plaintiff Below, Appellant, v.CHESAPEAKE UTILITIES CORPORATION, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted Jan. 12, 1981.

Decided Sept. 10, 1981.

Upon appeal from Superior Court.Reversed.

Somers S. Price(argued) of Potter, Anderson & Corroon, Wilmington, for appellant.

Douglas B. Catts(argued) of Schmittinger & Rodriguez, P. A., Dover, for appellee.

Before HERRMANN, C. J., QUILLEN and HORSEY, JJ.

HORSEY, Justice:

This interlocutory appeal primarily concerns the duties, for purposes of tort liability, of an employer of an independent contractor to the latter's employees under Maryland law.

Chesapeake and Potomac Telephone Company of Maryland, a Maryland corporation, ¹ contracted with Teal Construction, Inc., a Delaware corporation, for Teal to perform certain underground conduit and manhole construction work along West Isabella Street in Salisbury, Maryland in late 1969.Chesapeake Utilities Corporation, a Delaware corporation, ² was the owner of an underground four inch gas main that ran down Isabella Street on the other side of the street from Teal's construction work.In March, 1970, while construction was in progress, an explosion occurred in a completed manhole causing injuries to two of Teal's employees, John Hopkins and Joseph Martinowski, Delaware residents.Hopkins and Martinowski ³ filed in Superior Court a personal injury action for negligence against Gas Co.Gas Co. then asserted a third party claim for contribution against Telephone Co. and Teal as alleged joint tortfeasors.Later, Gas Co. abandoned its claim over against Teal.⁴

The appeal solely relates to Gas Co.'s third party claim against C&P Telephone for contribution.⁵The theory of Gas Co.'s claim is that C&P Telephone, as well as Gas Co., was guilty of negligence through breach of certain duties Telephone Co. allegedly owed plaintiffs, and that such negligence (along with Gas Co.'s) was a proximate cause of plaintiffs' injuries.

The questions certified for appeal concern the correctness of (1)Superior Court's denial of Telephone Co.'s motion for a directed verdict made at the close of evidence; and (2) the jury verdict and judgment finding Telephone Co. to be a joint tortfeasor with Gas Co. and liable in negligence to plaintiffs"to the extent of 70 percent of the amount ultimately determined to be their reasonable damages for personal injuries resulting from the gas explosion."This interlocutory appeal, accepted April 21, 1980, is interlocutory only in that there remains to be tried below the issue of the reasonableness of Gas Co.'s settlement with plaintiffs for purposes of determining Telephone Co's contribution to liability and damages.

Telephone Co.'s appeal of the verdict and judgment is limited to alleged legal error in the Trial Court's jury instructions as to Telephone Co.'s duties to plaintiffs under the law of negligence.

Telephone Co.'s motion for a directed verdict contested each of Gas Co.'s numerous allegations as to Telephone Co.'s negligence, including the following key averments:

A. that Telephone Co. failed to provide Teal's employees, including plaintiffs, with a safe place to work;

B. assuming Teal to be an independent contractor (as the jury found), that Telephone Co. was nevertheless liable for Teal's negligence under each of the following Restatement of Torts exceptions to the common law independent contractor rule (exonerating an employer from liability for the negligence of its independent contractor-employee):

B-1. the work contracted to Teal was inherently dangerous or dangerous in the absence of special precaution;

B-2. failure of Telephone Co. to exercise control over matters as to which it had retained some control;

B-3. failure of Telephone Co. to recognize a commonly known danger at the construction site and to take appropriate action;

B-4. failure of Telephone Co. to halt Teal's operations or to remove danger after becoming aware that Teal's workmen were creating a dangerous situation.

C. that Telephone Co. was guilty of negligence through breach of unspecified duties, contractual and assumed.

The Trial Court summarily denied Telephone Co.'s motion for a directed verdict as to all issues raised.In a bench ruling, the Court stated:

"THE COURT: It seems to me that of all the issues raised, the one on special dangers does call for the Court to make a preliminary or threshold decision.In that respect I'm not persuaded that it ends with the notion that a manhole is not inherently dangerous or that there is no special danger about a manhole.

I think we are concerned in this case, as in all cases, with the particular facts of the case.And here we are dealing with a manhole that was one of several along a street in which there were gas mains nearby, and clearly designated, which I suggest could be looked upon as special dangers or inherently dangerous.Therefore, I think it applies in this case.

As to all of the other issues that were raised, some of which, as a trier of fact, might be easily disposed of, others not so easily, it seems to me that none of them present themselves as issues that can be legally determined in advance, and that they lend themselves more appropriately to a decision by the jury.So your motions on all of the various points raised, Mr. Price, are denied."

Following the jury charge, Telephone Co. took exception to all instructions as to its liability based on either its negligence or Teal's conduct.

We find that Telephone Co. was entitled to a directed verdict as to issues B-3 and B-4 above.We also find the Trial Court to have erred in its instruction as to issue C above (charging Telephone Co. with negligence through breach of unspecified assumed duties).Therefore, we must reverse and remand for a new trial.

Rather than taking up only the issues requiring reversal, we discuss seriatim each of the key directed verdict issues.^*We do so because of their interrelationship and for guidance in the event of a new trial.This, in turn, calls for a more lengthy recital of the facts than in the normal appeal.

I

In a pretrial statement, the parties had stipulated to the following admitted facts: (1) that combustible gas in the manhole, known as manhole H, was "at least one of the proximate causes of the explosion"; (2) that the gas was a natural gas of Gas Co.; (3) that the gas had "leaked" from Gas Co.'s main that lay between 25 and 30 feet away across the street; (4) that the gas had "seeped" into the completed manhole in which plaintiffs were working; (5) that the negligence of Gas Co. was "at least one of the direct and proximate causes of the gas explosion"; (6) that the explosion occurred when Hopkins lit a cigarette while in the manhole with Martinowski and the spark ignited Gas Co.'s natural gas that had seeped into the manhole; (7) that neither plaintiffs, Teal, Telephone Co. nor Gas Co. was aware, before the explosion, that gas was present in the manhole; (8) that had the manhole been tested the presence of natural gas would have been detected; and (9) that although the contract between Telephone Co. and Teal "required both vapor testing and ventilation of the Manhole by someone before it was initially entered for the day by workmen, neither vapor testing nor ventilation was conducted before (plaintiffs) entered the Manhole."(underlining added).

Other facts, largely undisputed, ⁶ are: that Telephone Co. assigned one employee to the job on a full-time basis, an "inspector", Robert Money.Money's immediate superior was a Telephone Co. construction foreman, Walter Horsman, who made only periodic visits to the construction site.Horsman's superior in Telephone Co., Richard Grubb, project manager, supplied both Money and Horsman with a set of the construction plans but did not provide either of them with a copy of the contract documents.And neither Money nor Horsman was informed of the contract's provisions as to "Safety Practices" relating to the dangers of combustible gas "when working in or around completed manholes."⁷Further, neither money nor Horsman was informed, or aware, of the fact that the contract documents also included the "Bell System Practices" as to precautions to be taken at manholes for combustible gas.⁸

The construction plans (prepared by Telephone Co. for Teal's use) showed the presence of a four inch gas main on the opposite side of West Isabella Street and about 25 to 30 feet from the construction work.The gas main's location in the street bed had also been staked and marked at the site by a Gas Co. representative.

Telephone Co. had provided Money with a gas vapor tester which, according to Horsman, was to be available for Teal's men and "at their disposal."But Money's understanding was that the vapor test was for his personal use and only for Teal's use "if the contractor (Teal) requested it."Money kept the vapor tester in his truck at the job site but conceded that he never told Teal's men that he had a vapor tester in his truck.According to Grubb, Telephone Co.'s gas detection equipment was only to be used by Telephone Co. personnel.Neither Grubb nor Horsman had any discussions with Money about safety practices on the Teal job before the explosion.

Teal had a policy, but no rule, against smoking in manholes.But Teal's job superintendent, William Godwin, didn't think that newly-completed manholes required testing for gas; and Godwin had never seen or used a vapor tester or ventilating equipment in prior manhole construction work.Teal provided Godwin with the construction plans but not the contract.Godwin, like Money, did not know that there were any provisions in the contract that required vapor testing of manholes before entry and ventilation.Teal had no vapor tester or ventilating equipment on the job; and Teal did not know, until after the explosion, that Money had a vapor tester...