Rabar v. E. I. duPont de Nemours & Co., Inc.

• Decision Date: 28 May 1980
• Citation: 415 A.2d 499
• Parties: 1980 O.S.H.D. (CCH) P 24,705 James Ben RABAR and Judy Rabar, Plaintiffs, v. E. I. duPONT de NEMOURS & CO., INC., a Delaware Corporation, Active Crane Rentals, Inc., a Delaware Corporation, trading as Active Rentals, Dennis Andreas, and William O. Seglettes, Defendants.
• Court: Delaware Superior Court

Page 499

415 A.2d 499

1980 O.S.H.D. (CCH) P 24,705

James Ben RABAR and Judy Rabar, Plaintiffs, v. E. I. duPONT de NEMOURS & CO., INC., a Delaware Corporation Active Crane Rentals, Inc., a Delaware Corporation, trading as Active Rentals Dennis Andreas, and William O Seglettes, Defendants.

Superior Court of Delaware, New Castle County.

Submitted Sept. 20, 1979.

Decided May 28, 1980.

Robert Jacobs and Thomas C. Crumplar of Bader, Dorsey & Kreshtool, Wilmington, for plaintiffs.

Thomas Reed Hunt, Jr. of Morris, Nichols, Arsht & Tunnell, Wilmington, for defendant duPont.

Alfred M. Isaacs of Flanzer & Isaacs, Wilmington, for defendants Active Crane, Andreas and Seglettes.

LONGOBARDI, Judge.

The present action concerns a construction site accident which allegedly resulted in personal injuries to Plaintiff James Rabar and loss of consortium to his wife, Plaintiff Judy Rabar. For present purposes, it will be necessary to refer only to Plaintiff James Rabar's (hereinafter referred to as "Plaintiff" or "Rabar") claims and role in this controversy. Defendants include E. I. duPont de Nemours & Co. ("duPont") and Active Crane Rentals, Inc. and two of its employees (collectively referred to as "Active Crane"). Active Crane and duPont have cross-claimed against each other. Plaintiff has moved for partial summary judgment against duPont on the issue of liability. Defendant duPont has moved for summary judgment dismissing Plaintiff's complaint and Active Crane's cross-claim. Defendant Active Crane has moved for summary judgment on the basis that duPont was negligent and that Plaintiff was contributorily negligent.

I

The pertinent undisputed facts may be briefly stated. Defendant duPont, desirous of expanding the facilities at its Edgemoor plant, entered a cost-plus-percentage-of-cost contract with a joint venture firm, Healy-DiSabatino, for performance of the necessary construction. Plaintiff Rabar was employed by Healy-DiSabatino as an ironworker. One aspect of the project involved constructing a large pipe rack using vertical steel columns and horizontal steel beams. The columns were thirty-two and one half feet in height and were placed in poured concrete foundations four and three-quarter feet deep. Ideally, when two columns had been secured in place, each of two steel cross beams would be individually raised by a crane into place between the columns at heights of twenty-one and one-half feet and twenty-five feet and then permanently connected to the columns by ironworkers. Active Crane was under contract to duPont to perform the beam-raising function.

On the day of the accident, March 9, 1974, Plaintiff was engaged in making the necessary connections. At the time of the accident, Active Crane had raised a beam into place between two columns. Plaintiff and a co-worker had been using a fifteen foot ladder to climb up to the connection point. However, Plaintiff and his co-worker determined that the terrain at the base of the column had sloped off to such an extent that the ladder they had been using was too short. Therefore, the two men climbed onto a cooling tower immediately adjacent to the column planning to cross over to the column and slide down to the connection point. Plaintiff's co-worker first slid down the column and attempted to make the connection but was unsuccessful; he then climbed back onto the cooling tower. Plaintiff then slid down the column to the connection point. Plaintiff first moved the beam, which was secured only by a crane line at the middle, into alignment with the column and temporarily secured the beam to the column using tools referred to as spud wrenches. Plaintiff next climbed from the column onto the beam intending to replace the spud wrenches with permanent nut-and-bolt connections. Before the permanent connections could be made, the end of the beam on which Plaintiff was seated moved causing the spud wrenches to fall out. At this precise moment, the beam was again secured only by the crane line at the middle; consequently, Plaintiff's weight at the one end caused the beam to dip downward. Plaintiff fell to the ground and was seriously injured. Although safety equipment designed to avoid this type of accident was available at the construction site, none was in use on this portion of the job at the time of the accident.

II

Plaintiff's motion seeks a ruling that duPont is liable under the doctrine of negligence per se for alleged violations of certain occupational safety regulations promulgated by the Delaware Department of Labor ("Department") pursuant to 19 Del.C. 106(a). Defendant duPont contends that it cannot be held liable for negligence per se because it was not responsible for implementing the safety regulations at the construction site. Alternatively, duPont argues that even if it was responsible for implementing the safety regulations, the regulations relied upon by Plaintiff were not applicable in this case. As a third alternative, duPont claims it cannot be held liable because the accident resulted from Plaintiff's contributory negligence, negligence of Healy-DiSabatino, or both. Defendant Active Crane's motion relies upon Plaintiff's argument that duPont was guilty of negligence per se and relies upon duPont's argument that Plaintiff was contributorily negligent.

III

Before proceeding to the merits of these various motions, it is necessary to briefly review some background concerning the safety regulations adopted here in Delaware. As indicated above, these regulations were promulgated pursuant to 19 Del.C. 106(a) which provides as follows:

The Department may make, modify and repeal rules for the prevention of accidents or of industrial or occupational diseases in every employment or place of employment 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 and shall be enforced in the same manner as this chapter.

Rather than promulgate an entirely new set of regulations for this State, the Delaware Secretary of Labor simply adopted by reference the federal safety and health regulations contained in Part 1926 of Title 29 of the Code of Federal Regulations. Consequently, although these regulations were originally promulgated by the United States Secretary of Labor under the federal Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., their adoption in this State pursuant to 19 Del.C. 106(a) has transformed them into Delaware law. Therefore, the construction and interpretation to be given the pertinent regulations in this case must be decided as a matter of State law and federal cases delineating the scope and application of the federal regulations are not binding on this Court in determining similar matters under the State's regulations. Moreover, while such federal cases may in some instances be persuasive, those federal cases which have sought to construe the federal regulations by reference to the particular provisions found in the federal Occupational Safety and Health Act provide little assistance to this Court which must primarily rely upon the Delaware statutory language and relevant case law for guidance. Cf. Horn v. C. L. Osborn Contracting Co., 5th Cir., 591 F.2d 318, 321-22 (1979).

IV

The two regulatory provisions upon which Plaintiff relies are set out below:

§ 1926.105. Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

§ 1926.750. Flooring requirements.

(b) Temporary flooring skeleton steel construction in tiered buildings.

(1) * * *

(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below. 29 C.F.R. Part 1926.

Defendant duPont agrees with Plaintiff in principle that these regulations may provide the basis for application of the negligence per se doctrine. However, duPont correctly contends that the doctrine cannot apply unless the Court determines that duPont was required by law to conform to the regulatory standards. See Schwartzman v. Weiner, Del.Super., 319 A.2d 48, 55 (1974).

Defendant duPont argues on two bases that it owed no duty to conform to the regulatory standards cited by Plaintiff. DuPont relies exclusively on federal cases holding that the federal safety provisions, statutory and regulatory: (1) provide no basis for a private cause of action; and (2) impose no duties on one who is not the "immediate employer" of the injured worker. Without attempting to explain the complex dispute which has arisen among the federal courts as to the second holding, the Court notes that all of the cases relied upon by duPont were premised upon express provisions in the federal Occupational Safety and Health Act, which have no counterpart in the statute under which the Delaware regulations were promulgated. See 29 U.S.C. §§ 653(b) (4) and 654(a) as construed in: Jeter v. St. Regis Paper Co., 5th Cir., 507 F.2d 973 (1975); Horn v. C. L. Osborn Contracting Co., M.D.Ga., 423 F.Supp. 801 (1976), rev'd, 5th Cir., 591 F.2d 318 (1979); Cochran v. International Harvester Co., W.D.Ky., 408 F.Supp. 598 (1975); Hare v. Federal Compress and Warehouse Co., N.D.Miss., 359 F.Supp. 214 (1973). In short, the cases relied upon by duPont provide no assistance to this Court because, although the Delaware regulations involved are identical to the federal regulations, the Delaware statutory authority, 19 Del.C. 106(a), is completely distinguishable from the federal statutory authority and contains no language persuasively similar to that found in 29 U.S.C. §§ 653(b)(4) and 654(a)....