Owens v. Process Industries, Inc., Civ. A. No. 87-461-JLL.

• Decision Date: 07 August 1989
• Docket Number: Civ. A. No. 87-461-JLL.
• Citation: 722 F. Supp. 70
• Court: U.S. District Court — District of Delaware
• Parties: Doug OWENS and Rose Owens, Plaintiffs, v. PROCESS INDUSTRIES, INC., E.I. DuPont de Nemours & Co., Defendants.

722 F. Supp. 70

Doug OWENS and Rose Owens, Plaintiffs, v. PROCESS INDUSTRIES, INC., E.I. DuPont de Nemours & Co., Defendants.

Civ. A. No. 87-461-JLL.

United States District Court, D. Delaware.

August 7, 1989.

Eric M. Doroshow of Doroshow, Pasquale & Linarducci, Wilmington, Del., for plaintiffs.

Richard W. Pell and Sherry Ruggiero of Tybout, Redfearn & Pell, Wilmington, Del., for defendant Process Industries, Inc.

Richard Allen Paul of E.I. DuPont de Nemours & Co., Inc., Wilmington, Del., for defendant E.I. DuPont de Nemours & Co.

MEMORANDUM

LATCHUM, Senior District Judge.

I. INTRODUCTION AND BACKGROUND

Plaintiffs, Doug and Rose Owens, have brought this action against defendants Process Industries, Inc. ("Process") and E.I. DuPont de Nemours & Co. ("DuPont") to recover damages for alleged injuries to Doug Owens and for Rose Owens' alleged loss of consortium. (Docket Item "D.I." 1.)¹ Presently before the Court are motions by DuPont and Process for partial summary judgment.

The complaint alleges the following. On October 16, 1985, Doug Owens was operating a backhoe for Process at a DuPont job site pursuant to an agreement between Process and his employer, Guardian Construction Company ("Guardian"). (D.I. 1, ¶ 8.) Under instructions from Process, Mr. Owens was attempting to locate a steam leak when he stepped across a drainage ditch in an excavated pit and onto a l' × 10' plank. (Id at ¶ 9.) The plank turned causing him to lose his balance, and he grabbed a shoring brace to regain his balance. (Id.) The brace gave way striking him in the neck and upper back causing him to fall into the drainage ditch which contained hot water (approximately 144°F.). (Id.) The shoring was constructed by Process, and consisted of 4' × 8' plywood sheeting set flush with the lower 8' sides of the pit. (Id. ¶ 10.) No vertical studs supported the plywood sheeting, but there were three cross members wedged in place to hold up the sheeting. (Id.) No shoring of any type was constructed on the upper 16' of the pit. (Id.)

Based on these allegations, Plaintiffs allege that Process was negligent in that: (a) it failed to properly provide sheeting and shoring in the excavated pit, necessary to protect Mr. Owens, in violation of the Occupational Safety and Health Administration ("OSHA") regulations § 1926.651(f) and (k); (b) it permitted water to accumulate in the pit, in violation of § 1926.651(p) of the OSHA regulations; (c) it failed to construct proper shoring and sheeting in violation of § 1926.652(b) and (c) of the OSHA regulations; (d) it failed to construct proper cross braces in violation of § 1926.652(j) of the OSHA regulations; and (e) it was otherwise negligent and careless in constructing the sheeting and shoring and in the excavation of the steam leak. (Id. ¶ 11.)

Plaintiffs also allege that DuPont conducted two safety inspections on the excavated pit prior to Mr. Owens' fall, thus misleading him into believing the pit was properly shored and sheeted to prevent his injury. (Id. ¶ 13.) Plaintiffs allege that DuPont was negligent in that: (a) it conducted safety inspections in a casual and cursory manner, in violation of the OSHA regulations; (b) it was negligent in failing to conduct competent daily safety inspections, in violation of § 1926.650(i) of the OSHA regulations; and (c) it was otherwise negligent and careless in failing to use due care in maintaining the construction site. (Id. ¶ 14.)

There are several facts that are not disputed. In 1985 Process contracted with DuPont to locate and repair several underground steam lines at DuPont's Stine-Haskell Laboratory near Newark, Delaware ("Stine"). (D.I. 45 at 3.) Process subcontracted with Guardian to do the excavation work, and Doug Owens was employed by Guardian to operate a backhoe on this job. (Id.) On October 16, 1985, Mr. Owens entered a pit excavated to locate a steam leak. (Id.) Upon reaching the bottom of the pit he stepped on a board to avoid hot water which had accumulated at the bottom of the pit from the steam leak. (Id.) As he stepped on the board, he lost his balance and reached overhead for a shoring brace which had been installed in the pit. (Id.) The brace gave way, and he fell into the hot water and sustained personal injuries. (Id.)

II. DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT

Before the Court are separate motions by Process and DuPont for partial summary judgment under Fed.R.Civ.P. 56. Process has moved for summary judgment on the allegations that it failed to construct proper sheeting and shoring in violation of § 1926.652(b), (c) and (j) of the OSHA regulations, that it failed to provide proper sheeting and shoring in violation of § 1926.651(f) and (k) of the OSHA regulations, and that it permitted water to accumulate in the excavation pit in violation of § 1926.651(b) of the OSHA regulations.² (D.I. 51.) DuPont has moved for summary judgment on the allegations that it failed to conduct competent daily safety inspections in violation of § 1926.650(i) of the OSHA regulations, and that it conducted safety inspections in a casual and cursory manner in violation of § 1926.651(f), (k) and (p) and § 1926.652(b), (c) and (j) of the OSHA regulations. (D.I. 49.) After having considered the written submissions of the parties and having held oral argument on August 4, 1989, the Court's disposition of the motions is set forth below.

Summary judgment is appropriate only if there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). The nonmoving party, here Plaintiffs, need only demonstrate the existence of a genuine issue of material fact in order to avert summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Yet Plaintiffs cannot merely rest upon the allegations contained in their complaint to establish such a genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Summary judgment must be granted unless Plaintiffs can adduce evidence which, when considered in light of their burden of proof at trial, could be the basis for a finding in their favor. See J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring).

A. Process' Motion

In support of its motion, Process argues that there is no evidence that defendants in this case owed Mr. Owens "a duty to erect a cross brace sufficient to support the weight of a man," and that "furthermore, the OSHA violations alleged by ... Plaintiffs have no nexus to the injuries" sustained by Mr. Owens. (D.I. 51 at 3.) More particularly, Process argues that Plaintiffs "bear the burden of proving that the sheeting and shoring did not conform to OSHA standards and must further prove that the violation of OSHA standards proximately caused the injury." (Id. at 4.) In this regard, Process argues that "the purpose of the shoring was to hold back the sides of the excavation to prevent the earth from caving in," but that the accident occurred when Mr. Owens lost his balance, slipped and fell, and reached for a cross brace overhead. (D.I. 51 at 8.) Therefore, Process argues, Plaintiffs have failed to sustain their burden of proof on an essential element of their case, namely, that Mr. Owens' injuries "would not have occurred `but for' Process' failure to install the cross brace in conformity" with § 1926.652(j) of the OSHA regulations. (Id. at 9.)

The sole basis for the Court's jurisdiction in this case is diversity of citizenship under 28 U.S.C. § 1332. Note 1 supra. Therefore, the Court will apply the law that would be applied by a court in the State of Delaware. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). This being an action in tort, the injury having occurred in Delaware, and both Process and DuPont being Delaware corporations, Delaware substantive law controls. See Ricci v. Quality Bakers of America Cooperative, Inc., 556 F.Supp. 716, 719 (D.Del. 1983); see also Restatement (Second) Conflict of Laws § 145 (1971). Cf. McDermott, Inc. v. Lewis, 531 A.2d 206, 215-16 (Del.1987).³

Under Delaware law the violation of a statute enacted for the safety of others is negligence in law or negligence per se. Wright v. Moffitt, 437 A.2d 554, 557 (Del.1981); Sammons v. Ridgeway, 293 A.2d 547, 549 (Del.1972). Moreover, while not specifically passed on by the Delaware Supreme Court, the Superior Court has consistently held that violation of Delaware's OSHA regulations by a party bound to implement them can be negligence per se. Rabar v. E.I. DuPont de Nemours & Co., 415 A.2d 499 (Del.Super.1980); see also Crawford v. Gilbane Building, C.A. No. 83C-SE-6, 1986 WL 13083, LEXIS op. at 1-2 (Del.Super. Nov. 10, 1986) (States library, Del. file). In fact, this Court has previously found this to be the law in Delaware, and reiterates that finding here. See Carroll v. Getty Oil Co., 498 F.Supp. 409, 412 (D.Del.1980). See also Masemer v. Delmarva Power & Light Co., 723 F.Supp. 1019, 1020 n. 2 (D.Del.1989).

Process does not contend that it was not bound to implement the OSHA regulations. Rather, it argues that Mr. Owens' injuries were unconnected to any violation of them. It is not clear from this whether Process' argument is that Mr. Owens' injuries are outside of the protection afforded by the OSHA regulations or that there is no causal connection between the alleged violations and the injuries. Therefore, the Court will address each of these issues.

Not every injury following a violation of a regulation is a proper case for negligence per se. The injured party must be within "the class of persons protected" by the regulation and the "risk" of the injury must be within the regulation's "purpose." See W.P. Keeton et al., Prosser and Keeton on Torts § 36 at 224-26 (5th ed. Supp.1988). Here, it is not contended that Mr. Owens is not protected by the OSHA regulations. The question, then, is whether...