Patton v. Simone
| Decision Date | 22 September 1992 |
| Citation | 626 A.2d 844 |
| Parties | Richard M. PATTON, individually and as Administrator of the Estate of Edward R. Patton, deceased, Plaintiff, v. Anthony E. SIMONE, Richard L. Ventresca, Paul Ignudo, Lawrence Carson, Keystone Elevator Company, Continental Insurance Company, Equifax Services, Inc., Beneficial National Bank, Michael A. DiEleuterio, White and White Inspection and Audit Service, Inc., Defendants. Anthony E. SIMONE, Third-Party Plaintiff, v. DIAMOND CHEMICAL AND SUPPLY CO., Third-Party Defendant. . Submitted: |
| Court | Delaware Superior Court |
Defendants Equifax Services, Inc. [Equifax] and White and White Inspection and Audit Service, Inc. [White and White] have moved for summary judgment. Equifax acquired White and White, therefore, when reference is made to both companies, Equifax will be used.
Edward R. Patton [Patton] worked for Diamond Chemical and Supply Company [Diamond Chemical], a wholesale janitorial supply business at Second and Market Streets in Wilmington, Delaware. He had worked at that location for approximately eighteen months prior to the date in question. While at work on October 19, 1989, Patton fell down an open elevator shaft and died later that day as a result of injuries sustained in the fall.
Diamond Chemical was purchased by Richard A. Ventresca [Ventresca] and Anthony E. Simone [Simone] as partners in 1975. Ventresca owned seventy percent of Diamond Chemical and Simone owned the remaining thirty percent. Ventresca and Simone purchased the building in which Diamond Chemical was located by the end of 1978. At that time, there was and continued to be only one elevator in the building. The building is five stories tall and over one hundred years old. Prior to the date the building was purchased by the partnership, a worker by the name of Joseph Lilly fell down the unprotected elevator shaft on August 23, 1974.
The City of Wilmington Department of Licenses and Inspection [L & I] wrote Ventresca on November 4, 1975 in regard to an inspection of the building the previous day. At that time, Ventresca was informed that the elevator was in serious violation of the Wilmington City Code [Code ]. He was told to bring the elevator up to Code requirements within thirty days. L & I never reinspected the location to see if the required repairs were performed. On May 26, 1977 the building was inspected by the Wilmington Fire Department. In a letter dated June 3, 1977, the Fire Department notified Michael A. DiEleuterio [DiEleuterio], then Deputy Commissioner of L & I, that the building contained structural defects which could possibly constitute Code violations.
Ventresca and Simone dissolved their partnership by written agreement on November 11, 1980. The dissolution was not amicable. The dissolution agreement [agreement] provided, in part, that the land and building on which Diamond Chemical was operating was to be transferred to Ventresca and Simone as tenants in common. The agreement continued that neither was to seek a partition of the property and each was granted a right of first refusal with respect to the other's undivided interest in the property.
The Fire Department again inspected the building in February 1985. Ventresca was sent a notice that there were Code violations within the building. On November 29, 1985 a worker, James Turner, fell down the elevator shaft and was seriously injured. The Fire Department returned to inspect the building in December 1986. It noted that the elevator shaft was still unprotected. On January 28, 1987 Roland Hewett [Hewett], another employee, fell down the shaft.
When the Fire Department returned in July 1988, Ventresca was granted a one-year grace period before the elevator needed to meet Code requirements because Ventresca stated that Diamond Chemical was to be moved to another location during that time period. In August 1989, the Fire Department again contacted Ventresca following an inspection in July. On finding that none of the repairs were completed, Ventresca was given thirty days to make the corrections, including enclosing the elevator shaft. None of the repairs to the elevator were completed before October 18, 1989, the date Patton fell down the elevator shaft.
On the date in question, Patton and Hewett both were working at Diamond Chemical. Patton was on the fifth floor and Hewett was at street level where he was unloading a truck. Hewett called the elevator in order to retrieve a pallet jack on the fifth floor. While he was on the third floor, Hewett realized that he had not replaced a chain that went across the elevator shaft opening on the fifth floor. He called to Patton to inform his co-worker of his lapse. According to Hewett's deposition, Patton replied acknowledging the open shaft. Hewett soon heard a loud bang from the elevator shaft and upon investigating, found that Patton had fallen down the shaft. Hewett did not see Patton fall.
Equifax became involved when three underwriting surveys of the property were conducted in August 1985, October 1986 and October 1988. On August 20, 1985, White and White conducted an "Owner, Landlord and Tenant Survey" for Diamond Chemical's liability and worker's compensation insurer (not Continental Insurance Company [Continental] ). White and White was asked to provide three photographs of the building and to measure square footage. It was also asked to describe all Diamond Chemical's business operations and employee's duties. The inspector found the elevator to be in good condition.
In the fall of 1986 after Turner's fall, Diamond Chemical's worker's compensation insurer (again, not Continental) asked Equifax to check the officers and their duties and under which classification they belonged in connection with the worker's compensation survey requested. The October 24, 1986 inspection report stated that the building was structurally safe and sound and appeared to be in good condition. The report said that for worker's compensation purposes, Diamond Chemical was a good risk.
On October 10, 1988, Equifax conducted a general liability survey and inspected the building after being so commissioned by Continental in conjunction with Diamond Chemical's on-going loss control program. In his deposition, Equifax's representative asserted the loss control survey was a limited evaluation of an insured's property for the purpose of providing the insurer with information concerning the insured risk to aid the underwriter in setting the premium and to make recommendations to the insured in order to help reduce the risk of loss to the insurer. He added that the survey was not an inspection, that it looked at areas where the public, having access, might be injured. He concluded by stating that the survey was conducted to help develop recommendations to avoid injuries.
On November 3, 1988, Continental wrote to Ventresca acknowledging Equifax's inspection "recommending" two improvements. One was that the Fire Department exterior sprinkler connections be properly maintained and the other was that an overhead light to the ceiling in the retail showroom be properly secured. Nothing was said about the elevator. Ventresca sent a letter dated December 16, 1988 to Continental which stated "both items on your November 3, 1988, letter of recommendations have been corrected and are now in compliance with our on-going loss control program."
In none of the three inspections did any of Equifax's personnel note any problems about the elevator or make any recommendations with regard to it.
In order for a party to be entitled to summary judgment, that party has the burden of showing there is no genuine issue of material fact and he or she is entitled to judgment as a matter of law. Moore v. Sizemore, Del.Supr., 405 A.2d 679, 680 (1979). After reviewing the record in a light most favorable to the non-moving party, Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., Del.Super., 312 A.2d 322, 325 (1973), the motion for summary judgment will be denied if the Court finds any genuine issues of material fact. Pullman, Inc. v. Phoenix Steel Corp., Del.Super., 304 A.2d 334, 335 (1973).
Equifax asks that its motion for summary judgment be granted as the underwriting surveys performed did not create a legally enforceable duty to Patton. It also claims that there was no uninterrupted casual connection between the inspections and Patton's fall. Equifax states that it was not in possession or control of the property and, thus, it cannot be held liable for perpetuating a nuisance. Equifax also asserts that plaintiff Richard M. Patton's [plaintiff] claim is barred because Patton assumed the risk inherent in working near the open elevator shaft.
Plaintiff, the father of Patton and executor of his estate, claims that Equifax's motion for summary judgment should be denied as (1) Equifax had a duty running to third parties to inspect the Diamond Chemical site with due care and to recommend correction of any dangerous condition likely to result in physical injuries, (2) Equifax's negligence was among the several proximate causes of Patton's death, (3) Equifax's liability was not cut off by any superseding cause, (4) Equifax is not able to use the defense of Patton's assumption of the risk as it is subsumed within the defense of comparative negligence and is a factual matter to be determined by the jury and (5) Equifax can be deemed liable for perpetuating a nuisance.
LIABILITY UNDER RESTATEMENT (SECOND) OF TORTS § 324A
Both parties argue that Restatement (Second) of Torts § 324A ...
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