Figgs v. Bellevue Holding Co., No. 92C-12-058

CourtSuperior Court of Delaware
Writing for the CourtDEL PESCO
Citation652 A.2d 1084
PartiesChristopher FIGGS and Kathleen Figgs, Plaintiffs, v. BELLEVUE HOLDING COMPANY, a corporation of the State of Delaware, and Franklin Fabricators, Inc., a corporation of the State of Delaware, Defendants. C.A. . Submitted:
Decision Date14 September 1994
Docket NumberNo. 92C-12-058

Page 1084

652 A.2d 1084
Christopher FIGGS and Kathleen Figgs, Plaintiffs,
BELLEVUE HOLDING COMPANY, a corporation of the State of
Delaware, and Franklin Fabricators, Inc., a
corporation of the State of Delaware, Defendants.
C.A. No. 92C-12-058.
Superior Court of Delaware,
New Castle County.
Submitted: Sept. 14, 1994.
Decided: Sept. 20, 1994.

Page 1086

Upon Consideration of Defendant Franklin Fabricators, Inc.'s Motion for Summary Judgment.

James R. Leonard, Potter, Crosse & Leonard, P.A., Wilmington, for plaintiff.

Richard W. Pell, Tybout, Redfearn & Pell, Wilmington, for defendant Bellevue Holding Co.

William J. Cattie, III, Heckler & Cattie, Wilmington, for defendant Franklin Fabricators.



On May 8, 1991, plaintiff Christopher Figgs was injured when he fell from the second floor of a building owned by MBNA Corporation. The building ("the construction site" or "the site") from which plaintiff fell was under construction at the time of his accident. The general contractor for the

Page 1087

construction site was defendant Bellevue Holding Company ("Bellevue"). Bellevue employed several subcontractors on the site as well. Defendant Franklin Fabricators ("Franklin") was a steel-work subcontractor and DeShong Construction ("DeShong"), plaintiff's employer, was a subcontractor responsible for additional work.

On December 7, 1992, plaintiffs filed this personal injury suit against the defendants alleging negligence. On October 1, 1993, defendant Franklin filed a motion for summary judgment on the grounds that Franklin was no longer on the job site at the time of the accident and did not owe a duty to plaintiff, the employee of another subcontractor. Argument on the motion was held on December 7, 1993, at which time this Court granted summary judgment for the defendant finding that Franklin did not have control over the area, nor did they have a duty to provide for the safety of the employees of the other subcontractors. On December 10, 1993, plaintiffs filed a motion for reargument contending that, in Delaware, a duty of care is owed to the employees of subcontractors pursuant to OSHA. The motion for reargument was granted by this Court on December 22, 1993, and the parties were directed to submit briefs addressing the issue of whether specific OSHA provisions establish a duty on the part of Franklin. The parties filed their briefs and thereafter both parties filed letters addressing the issue of whether newly-discovered bid documents stating the responsibilities of all contractors bidding to perform work at the site imposed a duty upon Franklin. Oral argument was held on September 14, 1994. The motion is now ripe for decision.


When considering a motion for summary judgment, the Court must examine the record and determine whether there is any genuine issue of material fact. Moore v. Sizemore, Del.Supr., 405 A.2d 679 (1979). Summary judgment is appropriate where, after viewing the record in the light most favorable to the non-moving party, the Court finds that there is no genuine issue of material fact. Pullman, Inc. v. Phoenix Steel Corp., Del.Super., 304 A.2d 334 (1973). In a construction case, the determination of whether a particular employer owed a duty to the plaintiff is generally one of law to be determined by the Court. See O'Connor v. Diamond State Telephone Co., Del.Super., 503 A.2d 661 (1985).


The following are the facts of the case as they appear in the record. Defendant Franklin was responsible for doing miscellaneous steel work at the construction site. This work included, inter alia, installing metal pans on two side fire staircases and one grand staircase. Upon completion of the installation of the metal pans, the masonry subcontractor filled the pans with concrete to construct the treads of the stairs. There is some dispute as to whether Franklin employees were on the site at all at the time of plaintiff's fall from the grand staircase, but it is clear from the record that on the day of the accident, employees of Franklin were not engaged in work at that location. There is also some disagreement in the record as to whether plaintiff was advised by an employee of Bellevue to use the grand staircase to access the second floor, but such a determination is not relevant for purposes of this motion. The record does reflect that there were two safety cables at the top of the grand staircase which extended around the entire perimeter of the second floor. It is further undisputed that there were no handrails on the grand staircase. It is unclear whether there was a barricade at the bottom of the stairs; however, such a factual determination is not necessary in the context of the issue at hand.

On the date of the accident, plaintiff was working on the second floor of the building to which he gained access by using the grand staircase. Plaintiff and his co-workers were in the process of removing their equipment from the second floor by use of the grand staircase. In order to get to the top landing of the grand staircase, plaintiff went between the two cables located at the top opening of the staircase. Plaintiff was walking backward carrying one end of a ladder when he

Page 1088

stepped off the staircase and fell to the first floor. As a result of his fall, plaintiff suffered a broken leg, ankle, and heel.


The issues before the Court at this time are whether Franklin had the duty to install temporary handrails on the grand staircase and whether that duty was owed to the plaintiff, an employee of another subcontractor. In a construction case, the determination as to whether or not one contractor owed a duty to a plaintiff is generally one of law to be determined by the Court. See O'Connor v. Diamond State Telephone Co., Del.Super., 503 A.2d 661 (1985). For the following reasons, this Court finds that Franklin did owe such a duty to plaintiff.

Plaintiffs contend that Franklin was duty bound by statute, trade custom, and contract, to install the temporary handrails around the staircase which it had constructed. This Court will address each of plaintiffs' contentions seriatim.

A. Whether Franklin was duty bound by statute.

In his complaint, plaintiff alleged that Franklin acted in violation of certain federal Occupational Safety and Health Act ("OSHA") regulations as adopted by Delaware law.

1. Delaware OSHA standards. Plaintiff argues that the federal OSHA regulations have been adopted by the Delaware Department of Labor pursuant to its authority under enabling statute 19 Del.C. § 106 to "make, modify and repeal rules for the prevention of accidents or of industrial or occupational diseases ... or such rules for the construction, repair and maintenance of places of employment as shall render them safe. Such rules when made shall have the force and effect of law...." 19 Del.C. § 106(a). The enabling legislation makes it clear that the purpose of the regulations is to prevent accidents at the workplace. See 19 Del.C. § 106(a); Owens v. Process Industries, Inc., D.Del., 722 F.Supp. 70, 75 (1989). Therefore, plaintiffs deduce that Franklin's failure to satisfy the requirements of OSHA constitutes negligence per se. Owens, 722 F.Supp. at 73; Masener v. Delmarva Power & Light Co., D.Del., 723 F.Supp. 1019, 1020 n. 2 (1989); Carroll v. Getty Oil Co., D.Del., 498 F.Supp. 409, 412 (1980).

Franklin contends that the Delaware OSHA regulations are preempted by the federal OSHA and cannot be used as the legal basis to impose a duty on Franklin, because OSHA specifically preempts all state laws purportedly governing the subject matter of an OSHA regulation. 29 U.S.C. § 667. 1

Franklin acknowledges that a number of Delaware Superior Court and United States District Court for the District of Delaware cases have given effect to Delaware OSHA. However, it contends that a reading of those cases clearly discloses that in no instance was the preemption of the right of Delaware to enact such regulations ever raised by a party. 2 Franklin is correct that this issue has never been raised in Delaware; therefore, this is an issue of first impression.

The core premise of the preemption doctrine is that state law must not override or interfere with federal law. Myrick v. Freuhauf Corp., 11th Cir., 13 F.3d 1516 (1994). However, Courts are reluctant to

Page 1089

find federal preemption because of their interest in avoiding unintended encroachment on the authority of a state. Id. Only when Congress' intent to provide preemption is clear and manifest will Courts allow such measures. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, ----, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993); see also Jones v. Rath Packing Co., 430 U.S. 519, 523-27, 97 S.Ct. 1305, 1309-10, 51 L.Ed.2d 604 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). The United States Supreme Court has held that one way a Court may determine whether state law is preempted by federal law is to look to the federal legislation itself to determine whether Congress expressed its intent through a preemption clause. Cipollone v. Liggett Group, Inc., 505 U.S. 504, ----, 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992). "If the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. at ----, 113 S.Ct. at 1737. Preemption is proper where Congress has defined explicitly the extent to which its enactments preempt state law. English v. General Electric Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 2275, 110...

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