Duphily v. Delaware Elec. Co-op., Inc.

• Decision Date: 20 June 1995
• Docket Number: No. 148,1994,148
• Citation: 662 A.2d 821
• Parties: Darryl DUPHILY, Plaintiff Below, Appellant, and Delaware Insurance Guaranty Association, Intervenor Below, Appellant, v. DELAWARE ELECTRIC COOPERATIVE, INC., Defendant Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 821

662 A.2d 821

Darryl DUPHILY, Plaintiff Below, Appellant and Delaware Insurance Guaranty Association, Intervenor Below, Appellant, v.DELAWARE ELECTRIC COOPERATIVE, INC., Defendant Below, Appellee.

No. 148, 1994.

Supreme Court of Delaware.

Submitted: June 20, 1995.

Decided: July 31, 1995.

Upon appeal from Superior Court.Reversed and Remanded.

John S. Grady(argued), of Grady & Hampton, P.A., Dover, for appellantDarryl Duphily.

Julius Komissaroff of Komissaroff & Perry, Wilmington, for intervenor-appellant Delaware Ins. Guar. Assn.

Roger A. Akin(argued), of Sawyer & Akin, P.A., Wilmington, for appelleeDelaware Electric Co-op, Inc.

Before VEASEY, C.J., WALSH, HOLLAND, and HARTNETT, JJ., and DUFFY, J., Retired, ¹ constituting the Court en Banc.

WALSH, Justice:

In this appeal from the Superior Court, we consider whether an employer's negligence may constitute a superseding cause in an employee's negligence action against a third-party tortfeasor.We conclude that, under the circumstances of this case, the alleged negligence of the employer may be raised as evidence of superseding cause even though the employer is otherwise immune from suit under workers' compensation laws and thus cannot be deemed a "joint tortfeasor."We also find that there was sufficient evidence presented at trial to warrant a jury instruction on superseding causation.Nevertheless, we hold that the jury verdict, rendered through special interrogatories, was facially inconsistent and not responsive to the jury instructions.Accordingly, we reverse the judgment of the Superior Court entered on the jury's verdict which relieved the alleged tortfeasor of liability.

In addition, we hold that the employer's workers' compensation insurance carrier is permitted to introduce evidence of the employee's medical bills notwithstanding the bar of the Delaware no-fault statute.We also find that the trial court did not err in denying plaintiff's motion for a directed verdict.The court erred, however, in permitting testimony of a defense witness who was not qualified as an "expert" concerning his "opinion" as to the appropriate height of electrical wires under relevant safety regulations.Finally, we conclude that evidence of an employee's violation of an Occupational Safety and Health Administration ("OSHA") regulation is permissible to show contributory negligence if the party asserting such negligence makes a sufficient showing that the employee was informed of the regulation.

I

The relevant facts adduced at trial are as follows.During the summer of 1990, the appellant/plaintiff-below Darryl Duphily("Duphily") was employed by New Look Homes, Inc.("New Look Homes"), a company that sells and installs double-wide mobile homes ("double-wides").Double-wides are single story, prefabricated houses that are hauled in sections to a home site where they are erected as a single structure.Duphily was a helper on a crew that installed double-wides.On August 7, 1990, Duphily was electrically shocked while installing a double-wide at White House Beach, a mobile home park near Millsboro.

In June of 1990, William Hamilton("Hamilton") purchased a double-wide from New Look Homes to be installed on a lot located at 416 Boat House Lane in White House Beach.Two months later, New Look Homes delivered the double-wide in two sections to the site for installation.In order to get the sections of the double-wide onto the designated site, a truck trailer had to back each section of the double-wide from an adjacent road, over a strip of grass and under a set of three parallel electric lines.The electric lines consisted of a phase wire charged with 7200 volts of electricity at a height of approximately nineteen feet, a neutral electrical wire at approximately eleven feet, and a low voltage coaxial cable television wire at a height of approximately eight feet.²

The first section of the double-wide was temporarily installed by Duphily and other employees without incident.When the second section of the double-wide arrived, however, John Starke("Starke"), president of New Look Homes, determined that the first section had to be removed because it was installed improperly.The employees then moved the first section off the lot and parked it on Boat House Lane.Starke then backed the other half of the double-wide into the lot while three employees gave him directions.Because the double-wide was thirteen and one-half feet high, it was apparent that it would snag on the neutral wire and the television cable.Duphily, on his own initiative but apparently with his employer's knowledge and tacit approval, climbed atop the double-wide.With his bare hands, he lifted the television cable and the neutral wire to allow the double-wide to pass under these wires.As he was walking backwards along the edge of the moving roof while holding the lower two wires, Duphily began to lose his balance when the truck passed over a speed bump.In order to prevent his fall from the edge of the moving home, Duphily instinctively grabbed the 7200 volt live wire and was shocked.As a result, Duphily was severely burned.He suffered a permanent injury to his leg and one of his forearms required amputation.

One month before the accident, a tree had fallen on the wires during a storm.Delaware Electric Cooperative, Inc.("Delaware Electric"), the entity that owned and maintained the highest two electrical lines, sent a crew to repair the damage that night.By flashlight, the repair crew "resagged" the wires without measuring the "sag."³The wires were apparently sagged too low during the repairs.If the wires had been at their proper heights at the time of the accident, the double-wide could have passed under them without human intervention.

Duphily filed a negligence action against Simmons Cable T.V. ("Simmons"), owner of the cable wire, and Delaware Electric for failing to keep the electrical and cable wires at a proper height.⁴Duphily's medical expenses, totaling over $115,000, had been paid by New Look Homes' workers' compensation insurance carrier, International Underwriter Insurance Company("International"), until it was placed in liquidation.Later, Duphily's medical expenses were paid by Delaware Insurance Guaranty Association("DIGA"), which had assumed the rights and obligations of International.Because Duphily was atop a trailer pulled by a truck owned by New Look Homes when he sustained his injuries, Duphily was presumably eligible for Personal Injury Protection ("PIP") insurance benefits from New Look Homes' no-fault insurance carrier.Duphily has not asserted a claim for PIP benefits.

Before trial, DIGA filed a motion to intervene so that it could assert its workers' compensation lien for the benefits it paid to Duphily.19 Del.C. § 2363.Although the Superior Court granted DIGA's motion to intervene, it held that neither DIGA nor Duphily were permitted to introduce into evidence the first $100,000 of Duphily's medical expenses, which represented the monetary amount that Duphily could have pursued against New Look Homes' PIP insurance carrier.21 Del.C. § 2118.The court also denied Duphily's pre-trial motion which sought to exclude any evidence of negligence on the part of his employer, New Look Homes, ruling that such evidence was relevant to the issue of supervening cause.

At trial, Duphily argued that Delaware Electric was negligent per se because it maintained its electrical wires lower than the minimum height permitted by the National Electric Safety Code("NESC"), which is the standard required of electrical utilities.The parties agreed that the coaxial cable wire and the neutral wire were lower than the minimum standard provided by the NESC.Duphily offered evidence that the phase wire was also below the NESC minimum, while Delaware Electric offered evidence to the contrary.At the close of Delaware Electric's case, Duphily moved for a directed verdict, which was denied by the court.Duphily also objected to a proposed instruction concerning the effect of his employer's negligence, arguing that there was insufficient evidence for the issue of superseding cause to go to the jury.The court overruled Duphily's objection and instructed the jury on superseding cause.The jury was directed to render its verdict in the form of special interrogatories, two of which addressed the issue of whether New Look Homes was negligent and whether such negligence was a superseding cause of Duphily's injury.

The jury's response to the interrogatories was as follows: (i) Delaware Electric was negligent, and its negligence proximately caused Duphily's injury; (ii) New Look Homes was also negligent, and its negligence was a superseding cause of Duphily's injury.The result of the jury's verdict was to relieve Delaware Electric of all responsibility for Duphily's injury because of New Look Homes' "superseding cause," even though the jury determined that the negligence of Delaware Electric had proximately caused Duphily's injuries.Duphily filed post-trial motions attacking the jury's verdict, but the Superior Court refused to disturb the verdict.

On appeal, Duphily claims that the trial court erred: (i) in permitting introduction of any evidence as to the negligence of New Look Homes; (ii) in instructing the jury on superseding causation; (iii) in denying his motion for a new trial on the ground that the jury verdict was contradictory and inconsistent with the jury instructions; (iv) in excluding evidence of $100,000 of his medical expenses; (v) in permitting a defense fact witness to testify as an expert witness; (vi) in permitting argument that Duphily violated OSHA regulations; and (vii) in denying his motion for a directed verdict.We address these claims seriatim.

II

Duphily's first claim of error pertains to the admissibility of his employer's negligence.Prior to trial, Duphily filed a motion in limine in which he sought to bar the introduction of any...