Disabatino Bros., Inc. v. Baio

Decision Date19 October 1976
Citation366 A.2d 508
Parties4 O.S.H. Cas. (BNA) 1855, 1976-1977 O.S.H.D. (CCH) P 21,229 DISABATINO BROTHERS, INC., a Delaware Corporation, Defendant below, Appellant, v. Dominick BAIO and Anna P. Baio, Plaintiffs below, Appellees, v. RANKIN DEVELOPMENT CO., INC., a Delaware Corporation, Defendant below,Appellee.
CourtUnited States State Supreme Court of Delaware

Upon appeal from Superior Court. Affirmed.

Roger Sanders, of Prickett, Ward, Burt & Sanders, Wilmington, for defendant below, appellant.

Victor F. Battaglia, of Biggs & Battaglia, Wilmington, for plaintiffs below, appellees.

Before HERRMANN, Chief Justice, DUFFY and McNEILLY, Justices.

McNEILLY, Justice.

In this negligence action the defendant, DiSabatino Brothers, appeals a Superior Court judgment awarding plaintiff, Dominick Baio, $150,000 for personal injuries and loss of future earning capacity. Plaintiff, Anna P. Baio, was awarded $25,000 for loss of consortium. Eight grounds for reversal are argued which we will consider seriatum.

I

Plaintiff, Dominick Baio, an employee of Robino-Ladd Company, worked as an inspector of houses constructed by his employer in a development known as Deacon's Walk. While driving on an unpaved street in the development, his automobile struck a raised sewer-manhole cover constructed by, and under the control of, DiSabatino Brothers. Plaintiff suffered a herniated disc in his lower lumbar spine, but continued working for ten months until the spinal injury, coupled with severe emotional problems proximately caused by the physical injury, rendered him unable to work thereafter and totally disabled.

II

The defendant argues that plaintiff knew or should have known of the dangerous condition of the manhole cover, relieving DiSabatino of any duty to warn plaintiff as a licensee or invitee. See Maher v. Voss, Del.Supr., 9 Terry 45, 98 A.2d 499, 504 (1953) (duty owed licensee is to not willfully injure or knowingly expose to hidden dangers); Restatement of Torts 2d § 343 (duty owed invitee is to warn of unreasonable risk that possessor knows or should know of by the exercise of reasonable care and which invitee would not be expected to discover). Plaintiff entered Deacon's Walk as an invitee on his employer's business and necessarily travelled on the roads of that development, which were under the control of defendant. Hercules Power Company v. DiSabatino, Del.Supr., 188 A.2d 529, 533 (1963). We further conclude that there was substantial evidence that plaintiff was unaware of the dangerous condition of the sewer-manhole cover and that it was not a condition that he should have been aware of; thus the Trial Court's denial of defendant's motion for a new trial on this issue will not be disturbed, as there was no abuse of discretion. Chavin v. Cope, Del.Supr., 243 A.2d 694, 695 (1968).

III

Defendant's second contention is that plaintiff was aware of the dangerous condition and was contributorily negligent as a matter of law. The case of Franklin v. Salminen, Del.Supr., 222 A.2d 261 (1956), is cited for the proposition that failure to exercise reasonable care in the face of a known danger constitutes contributory negligence. 222 A.2d at 262. As the jury chose to believe the plaintiff's testimony as to the apparency of the danger, we find this argument to be without merit.

IV

The defendant next argues that it was improper for the Trial Court to permit the jury to consider Occupational Safety and Health Act (O.S.H.A.) (29 U.S.C. § 651 Et seq.) regulations as relevant to the proper standard of care required by law of the defendant. There was no error in permitting plaintiff to cross-examine defendant's witness, who was experienced in the construction field and familiar with the regulations. See Hercules Power Company v. DiSabatino, supra, at 533. In its instructions to the jury the Trial Court stated:

'I have just discussed with you the basic duties and obligations owed by persons who occupy the position of the defendant.

These are the standards which are the measure of duty and care owed by the defendant as a reasonable man in charge of the premises. In measuring these standards you may look to certain guidelines which themselves, however, Do not create a specific duty. There are some federal regulations or safety standards which have been promulgated but which do not apply or find any specific application to the job here under way, and I shall read very brief exerpts from the standards.

'Although these brief excerpts are lengthy and complex regulations, they did not apply to this particular job and found no application on this job. These standards have been applied to some jobs, and They may be considered by you in determining what a reasonable man would or should do in regards to a job as to which these standards do not find application.'

(emphasis added).

Defendant argues the instruction was erroneous because (1) the O.S.H.A. regulations are intended to protect an employee onlyfrom his employer, (2) the O.S.H.A. sets forth its own penalties (29 U.S.C. § 666), which do not include civil liability, and (3) the regulations applied did not cover the work performed by the defendant. From the substance of the jury instructions it is clear to us that these arguments are without merit, as the regulations were not the basis of this cause of action. Cases holding that the O.S.H.A. does not create an independent cause of action are therefore inapplicable to the resolution of this issue. See e.g., Fawvor v. Texaco, Inc., E.D.Tex., 387 F.Supp. 626, 629 (1975). The regulations were intended to apply to circumstances similar to the construction here undertaken by the defendant, and as such are relevant to assist the jury in determining the proper standard of care required of the defendant. Their admission for this...

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    ...537 S.W.2d 164, 166 (1976); Wendland v. Ridgefield Constr. Servs., Inc., 184 Conn. 173, 439 A.2d 954, 957-58 (1981); Disabatino Bros. v. Baio, 366 A.2d 508, 511 (Del. 1976); Pease v. Zazza, 295 N.W.2d 43, 48 (Iowa 1980); Marzec-Gerrior v. D.C.P. Indust., Inc., 164 Vt. 569, 674 A.2d 1248, 12......
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    ...by assumption of risk. I It is undisputed that plaintiff was on the parking lot as a business invitee. Cf. DiSabatino Bros., Inc. v. Baio, Del.Supr., 366 A.2d 508, 510 (1976). One who conducts business owes a duty to those who come to his place to do business to exercise due care to keep th......
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    ...States because she entered the Post Office to transact business there, viz. to purchase stamps and mail letters. DiSabatino Bros. Inc. v. Baio, 366 A.2d 508, 510 (Del.Supr.1976). 4. It is well settled in Delaware that a possessor of property is not an insurer of his business invitees' safet......
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