Ricci v. Quality Bakers of America Co-op. Inc.

• Decision Date: 10 February 1983
• Docket Number: Civ. A. No. 80-417.
• Citation: 556 F. Supp. 716
• Parties: Frank A. RICCI and Rose Mary Ricci, his wife, Plaintiffs, v. QUALITY BAKERS OF AMERICA COOPERATIVE INC., Defendant.
• Court: U.S. District Court — District of Delaware

556 F. Supp. 716

Frank A. RICCI and Rose Mary Ricci, his wife, Plaintiffs, v. QUALITY BAKERS OF AMERICA COOPERATIVE INC., Defendant.

Civ. A. No. 80-417.

United States District Court, D. Delaware.

February 10, 1983.

Arthur Inden and Sydney R. Chirlin, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiffs.

Robert G. Carey, Prickett, Jones, Elliott, Kirstol & Schnee, Wilmington, Del., for defendant.

OPINION

MURRAY M. SCHWARTZ, District Judge.

Defendant's summary judgment motion in this diversity case concerns the existence and scope of the duty under the law of the State of Delaware to an employee by a third party who allegedly undertook safety inspections of the employer's plant. For reasons which follow, it is held on the facts of this case as established of record that plaintiff failed to establish defendant owed plaintiff any duty, the breach of which would cause Quality Bakers to be liable to plaintiff.

Plaintiff, Frank Ricci, a forty-year employee of Schmidt Baking Co., Inc. ("employer" or "Schmidt"), fell while running toward jammed lids on a recently installed bakery pan lid conveyor system. He alleges that the failure of the lid conveyor to operate properly proximately caused him to fall with serious injury to his elbow.¹

The only defendant, Quality Bakers of America Cooperative, Inc. ("Quality Bakers"), has no employer-employee relationship with plaintiff.² Quality Bakers is a cooperative providing engineering, maintenance, and production services only at the request of a member baker.³ Schmidt, a member with five plants, was entitled to a set number of consultant days per year divided among the plants as determined by Schmidt. Under the "Membership and Patronage Agreement" (Doc. 57, Ex. B), between Quality Bakers and Schmidt, defendant undertook, inter alia, "To render production and efficiency service, to advise in general on bakery layout, design and construction (and) To advise on equipment." (Doc. 57, Ex. B, p. 1). Nowhere in the contract documents is there an undertaking by Quality Bakers to make safety inspections for Schmidt. In fact, under the contract documents, with one exception not important here, Schmidt could control the location and focus of Quality Bakers consulting services. However, the documentary⁴ and deposition record⁵ demonstrates that defendant in the discharge of its duties had some involvement with safety.

On matters other than the duration and intensity of the jamming problem with the lid conveyor system,⁶ the parties are in remarkable agreement. Defendant, through its production consultant, Orville Windholz, suggested Schmidt consider installing some type of lid return conveyor system to reduce labor costs. Such systems are well known in the bakery industry. While Schmidt originally undertook design of the system in house, it ultimately chose to install a surplus conveyor system from another Schmidt plant. The time lapse between the recommendation of defendant and its implementation by Schmidt is unknown. It is clear, however, that defendant only made a recommendation and nothing more. Defendant made no drawings, designs, sketches or suggestions as to type of system or whether the same should be fabricated or bought. In fact, all design, fabrication, installation and maintenance of the lid conveyor system was done by Schmidt. While the record is unclear as to whether defendant knew of the jamming problem with the lid return conveyor system, all agree it was the type of problem which defendant would have given advice had it been asked or had it occurred when its representatives walked through the Schmidt plant, making observations as part of its proffered service.

Assuming the jamming condition came to the attention of defendant, it is undisputed that it could only make suggestions and recommendations. Whether defendant's advice, if any, was followed, was solely up to Schmidt. In like vein, Schmidt was solely responsible for maintenance and proper functioning of equipment. This responsibility had not been delegated to the defendant.⁷

In analyzing whether this lawsuit should be permitted to continue, the procedural posture must be kept in mind. "Rule 56 allows the trial court to grant summary judgment if it determines from its examination of the allegations in the pleading and any other evidential source available that no genuine issue as to a material fact remains for trial, and that the moving party is entitled to judgment as a matter of law. The purpose of the rule is to eliminate a trial in cases where it is unnecessary and would only cause delay and expense.... Inferences to be drawn from the underlying facts contained in the evidential sources ... must be viewed in the light most favorable to the party opposing the motion. The non-movant's allegations must be taken as true and, when these assertions conflict with those of the movant, the former must receive the benefit of the doubt." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

The parties have sharply focused the issue on defendant's motion for summary judgment. Simply put, the issue is whether under the facts of this case, defendant may be held liable to plaintiff under Delaware state substantive law by reason of Quality Bakers' alleged obligation to inspect the lid conveyor system.⁸ Quality Bakers takes the position it did not undertake to inspect the conveyor system and did not know it was malfunctioning. But, the record fairly read also raises an inference that defendant did inspect or at least should have inspected so as to ascertain the cause of the jamming of the return lid conveyor system. Therefore, in order to prevail on summary judgment, defendant must demonstrate its entitlement to summary judgment under two sets of circumstances, inspection performed in a negligent manner and, alternatively, failure to inspect at all.

Since diversity is the sole basis for jurisdiction, choice of law is controlled by the law which would be applied by a court in the State of Delaware. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). The Delaware courts have long taken the position that tort actions are governed by the law of the place where the tort occurred. Friday v. Smoot, 211 A.2d 594, 595 (Del.1965); Tew v. Sun Oil Co., 407 A.2d 240, 242 (Del.Super.Ct.1979). In this case the injury occurred in Delaware and Delaware substantive law controls.⁹

Plaintiff urges that the issue of the liability of Quality Bakers for his injuries is governed by the Restatement (Second) of Torts § 324A (1965), which states that:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

While section 324A has not been expressly adopted by the Delaware Supreme Court, it has been cited with approval in at least one instance by a Delaware Superior Court. Rabar v. E.I. duPont de Nemours & Co., Inc., 415 A.2d 499, 505 (Del.Super.Ct.1980). It will be assumed that if confronted with the question, the Delaware Supreme Court would incorporate this principle of tort law into the substantive law of Delaware. The question then becomes whether under any of the three alternatives of section 324A there is a material issue of fact which would preclude grant of summary judgment to Quality Bakers.

For purposes of this summary judgment motion, it is assumed that the defendant undertook to inspect the Schmidt plant and that the defendant should have recognized this inspection as necessary for the protection of the plaintiff. In order to defeat the defendant's motion for summary judgment, the plaintiff must establish the defendant's duty under one of the three alternative elements of section 324A.¹⁰

Plaintiff urges that defendant's failure to inspect or to exercise reasonable care in carrying out the inspection increased the risk of harm to plaintiff within the meaning of subpart (a) of section 324A. However, the only increased risk which plaintiff could point to was an argument to the effect that when a level of risk such as a jamming conveyor system remains constant, it increased the risk of injury to plaintiff over time. Plaintiff's search for "increased risk" misses the point. The risk to plaintiff allegedly stems from the fact that the lid return conveyor system jammed. There is absolutely nothing in the record which would suggest that defendant altered or recommended any alteration to the conveyor system which in any way increased the risk to plaintiff. The hazard, if any, which caused plaintiff's injury existed independently of any inspection, negligent inspection, omission to inspect, or recommendation of Quality Bakers. In short, Quality Bakers' alleged negligence did not increase the risk of harm to plaintiff within the meaning of section 324A(a). See Hassan v. Hartford Insurance Group, 373 F.Supp. 1385, 1391 (D.Del.1974) (defendant did not increase risk of harm where evidence failed to show that defendant directed or altered operations). At best, defendant's alleged conduct merely "permitted the continuation of an existing risk," an inadequate basis upon which to impose liability under section 324A(a). See Raymer v. United States, 660 F.2d 1136, 1143 (6th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982); United Scottish Insurance Company v. United States, 614 F.2d 188, 194 (9th Cir.1980); Zabala Clemente v. United States, 567 F.2d 1140,...