Tew v. Sun Oil Co.

• Citation: 407 A.2d 240
• Parties: Gilbert L. TEW, Jr., and Virginia K. Tew, Plaintiffs, v. SUN OIL COMPANY, Sun Gas Company, Inc., Sunmark Industries, Inc., Sun Oil Company of Pennsylvania and Sun Petroleum Products Company, Inc., Defendants.
• Decision Date: 13 September 1979
• Court: Superior Court of Delaware

Page 240

407 A.2d 240

Gilbert L. TEW, Jr., and Virginia K. Tew, Plaintiffs, v. SUN OIL COMPANY, Sun Gas Company, Inc., Sunmark Industries Inc., Sun Oil Company of Pennsylvania and Sun Petroleum Products Company, Inc., Defendants.

Superior Court of Delaware, New Castle County.

Submitted July 24, 1979.

Decided Sept. 13, 1979.

Upon defendants' motion for summary judgment. Denied.

S. Bernard Ableman and Henry E. Gallagher, Jr., of Connolly, Bove & Lodge, Wilmington, for plaintiffs.

James W. Semple, of Flanzer & Isaacs, Wilmington, for defendants.

O'HARA, Judge.

This is a personal injury action for damages allegedly resulting from defendants' failure to properly maintain an asphalt loading apparatus. Plaintiff Gilbert L. Tew, Jr. ("Tew"), was employed by Artic Roofing, Inc. as a truck driver, and sustained injuries at defendants' refinery in Marcus Hook, Pennsylvania. Defendants have moved for summary judgment, contending that Tew assumed the risk of injury by knowingly continuing to operate the loading apparatus.

It appears from the record that Tew, who frequently loaded asphalt at defendant's facility, was well aware of the potentially Tew had also complained to his boss at Artic, who required that the (loading) job be completed regardless and suggested the complaint slip procedure. Protests from Tew were greeted by an ultimatum instructing him to do the job or find another. With respect to job alternatives, Tew had owned and, for a time, run independently his own truck. However, at the time of injury he was well satisfied financially with the asphalt-hauling job.

unsafe condition of the loading "rack". The device involved is a large overhead rack, designed to propel liquid asphalt into the top of large trucks. According to Tew's deposition testimony, it was necessary to stand on the truck to physically manipulate the apparatus. Reading the evidence to favor the non-moving party, it appears that the loading device was quite difficult to operate when not adequately greased, and that the lack of such maintenance was common. Tew had experienced prior difficulties with the device and had submitted complaint slips according to defendants' company policy. However, remedial action, if taken, was only temporary.

This factual background sets up a narrow issue: whether, as a matter of law, an individual who faces a known dangerous condition rather than risk loss of his job can be said to have Voluntarily assumed the risk of injury.

CHOICE OF LAW

A preliminary question is raised by the briefs as to whether Pennsylvania or Delaware law should govern the determination of the issue here. Plaintiffs have relied on Pennsylvania law, while defendants indicate that there is no substantial difference between the states on this question.

Delaware has traditionally favored the Lex loci delicti rule over the "most significant relationship" rule in tort actions. Friday v. Smoot, Del.Supr., 211 A.2d 594 (1965). Under this theory, the law of the jurisdiction where a tort takes place (here, Pennsylvania), governs the substantive rights of the parties in an action based on the tort brought in Delaware. Id. See also Hopkins v. Chesapeake Utilities Corp., Del.Super., 290 A.2d 4 (1972). I do not believe that the apparent use of the " relationship" test of the Restatement in Oliver B. Cannon and Son v. Dorr-Oliver, Del.Supr., 394 A.2d 1160 (1978), indicates a departure from this rule. See Restatement of the Law, Second, Conflict of Laws, § 188. That case involved a Contract dispute arising over property located in Delaware, where two of the four parties were Delaware corporations. In the present case, the alleged injuries and alleged negligence of defendants occurred in Pennsylvania. Two of the defendants are Pennsylvania corporations. Only Tew and his employer at the time of the accident (not a party) have Delaware contacts.

Clearly, if the Lex loci rule retains vitality, Pennsylvania law should govern here. This would also seem to be the result under the Restatement. See § 145. In particular, § 165 indicates that as to assumption of risk, the applicable law will usually be the local law of the state where the injury occurred. In this case, Pennsylvania law will be applied with respect to the substantive issue of assumption of risk.

Of course, matters of procedure will be governed by the law of Delaware, the forum state. Connell v. Delaware Aircraft Industries, Inc., Del.Super., 55 A.2d 637 (1947). Thus, in passing on defendants' motion for summary judgment, the record must be read in a light most favorable to the non-moving plaintiffs. Smith v. Berwin Builders, Inc., Del.Super., 287 A.2d 693 (1972). Summary judgment can be granted only if the Court can say that on the unquestioned facts the moving party is entitled to judgment as a matter of law. Klebanoff v. Ponsall, Del.Super., 290 A.2d 668, aff'd. Del.Supr., 299 A.2d 431 (1972). If from the evidence produced there is some reasonable indication that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law, summary judgment will not be granted. Ebersole v. Lowengrub, Del.Supr., 180 A.2d 467 (1962). Here, the burden of proof is borne by the defendants.

VOLUNTARY ASSUMPTION

Pennsylvania law on the voluntariness of assumption of risk in the context of economic duress has recently been analyzed in Draper v. Airco, Inc., 3rd Cir., 580 F.2d 91 (1978). In that case the plaintiff, an electrician, died while installing a switch on an energized power line. The trial judge instructed the jury that plaintiff did Not voluntarily assume the risk of injury if he undertook the work in fear of dismissal or fear of economic...