O'Hara v. Premcor Refining Group Inc.
Filing
153
MEMORANDUM OPINION re 122 MOTION for Summary Judgment. Signed by Judge Richard G. Andrews on 10/4/2012. (nms)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EDWARD O'HARA,
Plaintiff,
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C.A. 09-500-RGA
v.
THE PREMCOR REFINING GROUP, INC.,
Defendant/Third Party Plaintiff,
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V.
GRIFFITH ROOFING & WATERPROOFING,:
INC.,
Third Party Defendant.
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MEMORANDUM OPINION
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Timothy E. Lengkeek, Esq., Wilmington, Delaware, Brian S. Chacker, Esq.,
Philadelphia, Pennsylvania; Attorneys for Plaintiff Edward O'Hara.
Sean J. Bellow, Esq., Wilmington, Delaware; David A. Felice, Esq., Wilmington,
Delaware; Attorneys for Defendant The Premcor Refining Group, Inc.
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October
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Wilmin~Delaware
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This is a motion for summary judgment. Plaintiff Edward O'Hara brings a negligence
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action against Defendant The Premcor Refinery Group, Inc. as a result of injuries he suffered at a
Premcor refinery plant on July 20, 2007. (D.I. 1). O'Hara was working as a roofer for his
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employer, Griffith Roofing & Waterproofing, Inc. Premcor had contracted with Griffith Roofing
to provide roofing services on the Water Treatment Center at Premcor's Delaware City refinery.'
On the day in question, O'Hara and his coworkers left the Water Treatment Center to dump
debris. On the way back, O'Hara and his coworkers stopped at a designated smoking area for a
smoke break. While in this area, O'Hara stepped onto a manhole cover. The manhole cover
flipped up, causing O'Hara's right leg to fall into the manhole. O'Hara suffered injuries to his
knee as a result and brings suit against Premcor for negligence. Premcor now moves for
summary judgment on the negligence claim. (D.I. 122).
The Court may grant a motion for summary judgment only "where the pleadings,
depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue
of material fact and that the moving party is entitled to judgment as a matter of law." Azur v.
Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212,216 (3d Cir. 2010). Premcor brings two arguments
in support of its motion for summary judgment: (1) Premcor had no duty to ensure O'Hara's
safety during the performance of Griffith Roofing's contracting work and (2) the manhole cover
posed an open and obvious danger that O'Hara should have recognized. The Court addresses
each of these arguments in tum.
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Griffith Roofing was brought into this suit by Premcor as a Third Party Defendant, but is not a party to this motion.
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Premcor argues that it had no duty to ensure O'Hara's safety and it thus should be
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granted summary judgment. Premcor acknowledges that it had a general duty to maintain the
premises in a reasonably safe condition and to warn Griffith Roofing employees of all defects of
which it knew of or had reason to know. Premcor argues, however, that a landowner has no duty
to protect an employee of an independent contractor from the very hazard created by the doing of
contract work, unless the owner retains active control over the manner in which the work is
performed, citing Seeney v. Dover County Club Apartments, 318 A.2d 619, 622 (Del. Super.
1974). In Seeney, the contractor was hired to dig ditches and install sewer pipeline. !d. During
this activity, the walls of a ditch where the contractor's employee was working collapsed on the
employee, injuring him. !d. at 620. The owner of the grounds was not liable, as he retained no
control over how the ditch digging was accomplished or the safety methods used. Id. at 622. To
the contrary, the contractor was hired as the ditch digging expert and was in the best position to
ensure reasonable care while digging ditches. See id. Thus, Seeney held that a landowner is not
responsible for injuries suffered by an employee of an independent contractor hired to work on
its property when the injuries result "from the very hazard created by the doing of the contract
work." Id. at 621.
In this case, Premcor contracted with Griffith for roofing services. O'Hara was not
injured, however, while doing any roofing. O'Hara was injured in a fall down a manhole while
accompanying his coworkers to a smoke shack some distance from the roofing site. There was
nothing special about O'Hara's roofing work that made him especially at risk for falling into the
manhole or anything about Griffith's activities at the Premcor site that put Griffith in a position
to inspect manholes. He thus was not injured by "the very hazard created by the doing of the
contract work." Had O'Hara been injured, for example, in a fall from the roof of the Water
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Treatment Plant while roofing, it would be analogous to Seeney, but these are not the
circumstances here. The manhole posed an equal danger to anyone passing through that area of
the facility, roofers and non-roofers alike.
Premcor quotes In re: Asbestos Litig. (Helm), 2007 WL 1651968, *17 (Del. Super. 2007)
in an effort to bolster its argument as follows:
Contractors are hired to perform a job and they are expected to take steps to
protect themselves and their employees from known hazards of the job, and
known hazards of the job site, without direction from the landowner.
Nothing here justifies the conclusion that Premcor had no duty to maintain safe premises for
Griffith Roofing employees. This quote highlights the necessity for independent contractors to
be wary of known hazards related to their contract work. As discussed, there is no evidence that
the manhole cover was a known hazard of the roofing work or the job site. Premcor thus fails to
establish that O'Hara was injured due to a risk created by the "very hazard created by the doing
of the contract work."
Premcor next argues that Griffith Roofing contractually agreed to provide for the
"ultimate safety" of its employees, thus absolving Premcor of its duty to maintain safe premises.
Entitled "Contractor Safety Guidelines," the agreement states, "CONTRACTOR has the ultimate
responsibility for the safety of their personnel at the job site in accordance with the COMPANY
rules and OSHA 191 0.119(h)(3)(iv)." (D.I. 123, Exh. D at 4). It further states,
CONTRACTOR will maintain safe work conditions at all times. In addition to
being constantly alert for unsafe or potentially unsafe conditions,
CONTRACTOR must check the work daily at the beginning and throughout each
shift to ensure safe work conditions. Any unsafe working conditions must be
corrected or reported to the COMPANY Representative immediately.
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(Id at 4). Premcor argues that this agreement relieved Premcor of the duty to keep the premises
safe for Griffith Roofing employees. The Court disagrees with this interpretation. There is no
indication that the parties intended for Griffith Roofing to completely assume Premcor's general
landowner duties. The agreement rather speaks to Griffith Roofing's responsibility to maintain
safe "work conditions" and safety at the "job site." It thus highlights Griffith Roofing's duty to
maintain responsibility for the safety of its roofing work and the foreseeable effects of its
presence at the Water Treatment Plant job site. As explained earlier, O'Hara was not injured due
to a condition of his roofing work, as any risk posed by the manhole cover was a danger
completely unrelated to roofing. Further, the accident did not occur at the roofing site itself. The
injury occurred due to a condition outside of Griffith Roofing's control. It would be
unreasonable to require Griffith Roofing employees to inspect every manhole located in areas of
the refinery where its employees were authorized to travel as part of Griffith Roofing's
obligation to maintain safe work conditions. For these reasons, the Court does not believe that
the agreement should be broadly read as causing Griffith Roofing to assume all ofPremcor's
safe workplace obligations to Griffith Roofing's employees.
Griffith Roofing further argues that the agreement was limited to ensuring that Griffith
maintained responsibility to follow certain Premcor and OSHA protocols in relation to working
near the dangerous chemicals ofthe refinery, as opposed to an agreement divesting Premcor of
its premises obligations. The Court agrees. The agreement states that the "CONTRACTOR has
the ultimate responsibility for the safety of their personnel at the job site in accordance with the
COMPANY rules and OSHA 1910.119(h)(3)(iv)." Griffith thus did assume "ultimate
responsibility" for the safety of its personnel, but only in connection with following Premcor and
OSHA rules. This OSHA section relates purely to working around dangerous chemicals, as
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exemplified by the section's defined "Purpose," which follows: "This section contains
requirements for preventing or minimizing the consequences of catastrophic release of toxic,
reactive, flammable, or explosive chemicals." 29 CFR § 1910.119. Subsection
1910.119(h)(3)(iv), specifically referenced by the agreement, requires that "the contract
employer shall assure that each contract employee follows the safety rules of the facility
including the safe work practices required by paragraph f( 4) of this section. " 2 This indicates that
the agreement's applicability was limited to ensuring Griffith Roofing's responsibility for
complying with rules in relation to risks of dangerous chemicals. The risk posed by a manhole
cover is clearly unrelated to safety rules regarding dangerous chemicals and Premcor puts forth
no specific OSHA or Premcor safety rule violated by Griffith Roofing or O'Hara. This indicates
that the agreement does not control liability regarding O'Hara's injuries.
Premcor argues that the presence in the agreement of drug testing for Griffith Roofing
employees undermines the argument that the agreement only applied to dangerous chemicals, but
that is not a true inconsistency. It makes perfect sense for a contract regulating the safety of
dangerous chemicals on a property to also ensure that all those allowed to work near those
chemicals are not under the influence of illegal drugs. Further, even ifthe Court agreed that the
work agreement should be read more broadly, it still would not extend to the risk of the manhole
cover, which was not a Griffith Roofing "work condition" or part of the Griffith Roofing "job
site." For all these reasons, the Court holds that Premcor fails to establish that it contractually
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Paragraph f(4) details safe work practices as follows:
The employer shall develop and implement safe work practices to provide for the control of hazards during
operations such as lockout/tagout; confined space entry; opening process equipment or piping; and control
over entrance into a facility by maintenance, contractor, laboratory, or other support personnel. These safe
work practices shall apply to employees and contractor employees.
29 C.F.R. § 1910.119f(4).
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absolved itself from the duty to maintain safe work premises through agreement with Griffith
Roofing.
There is further reason to believe that had such a complete delegation occurred, as argued
by Premcor, it would not be effective as to bar O'Hara's suit. Argoe v. Commerce Square
Apartments Ltd. Partnership, 745 A.2d 251 (Del. Super 1997) states that a landowner may
absolve itself from the duty to maintain safe premises, but only where the "owner relinquishes
possession and actual control over the property to another entity." !d. at 254-55. Here, Premcor
never relinquished possession or actual control of the smoke break area where O'Hara was
injured. Although Premcor correctly points out that Argoe specifically pertained to finding a
landowner vicariously liable due to the omissions of its agent where the agency agreement
delegated grounds keeping duties, Argoe sets out general principles applicable to a broader set of
circumstances than its instant facts. See id. As applied to this case, these principles further
suggest that Premcor's duty to maintain safe premises was not absolved by the agreement. For
all these reasons, the Court holds that Premcor fails to establish that it had no duty to maintain
safe premises for Griffith Roofing employees.
This brings the Court to Premcor's second argument in support of its motion for summary
judgment. Premcor argues that summary judgment should be granted because it had no duty to
warn of open and obvious dangers. Premcor argues that it is undisputed that any danger the
manhole posed was so obvious to a "person of ordinary care and prudence" that it had no duty to
warn O'Hara. See Niblett v. Penn R.R. Co., 158 A.2d 580, 582 (Del. Super. Ct. 1960). To
support this argument, Premcor cites testimony from O'Hara's foreman, Calvin Hershberger,
who was present at the accident. Hershberger testified that the manhole cover looked "funny"
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before O'Hara stepped on it. 3 Premcor further cites testimony from O'Hara's expert, John
Posusney, that if someone had inspected the manhole cover, they would have noticed it was not
even or flush. 4 According to Premcor, there thus is no issue of material fact as to whether the
manhole danger was open and obvious.
O'Hara argues that, at a minimum, there is a factual dispute as to whether the manhole
cover was an open and obvious danger. The Court agrees. Although Hershberger testified that
the manhole cover looked "funny," he also testified that "it looked like something you could step
on." 5 Further, Robert Stewart, another Griffith employee present at the accident, testified that
the manhole cover looked safe to step on. 6 Finally, the Court disagrees with Premcor's
characterization of O'Hara's expert testimony. Posusney testified that the manhole cover's
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Q.
Did it look like [the manhole cover] fit properly- did you even notice it was there before the fall?
A.
I mean I noticed it was there, we said that's a funny looking manhole cover.
(D.I. 123, Exh A at 62:23-63:4).
Q.
In what way did the manhole cover look funny?
A.
It was small. I mean, I just thought it looked odd.
(!d. at 69:21-24).
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Q.
The second bullet point; in that second bullet point there's a reference that the manhole cover was not even
and flush. Do you see that there?
A.
Yes.
Q.
Can you tell me what you meant by not being even or flush?
A.
Well, it was- in other words, that thin 3/32 of an inch piece of metal, if you were to put it on this table, it
would rock because- even though it's a planer structure, it's not- it's not perfectly planer. It's not within
one X Y coordinate. It actually has a third coordinate, which, in effect, causes it to rock because it's not
flush.
Q.
Mr. Posusney, if it was not even or flush, wouldn't that mean that it would have been visible?
A.
Yes, if someone inspected it, they would see that, yes.
(D.I.123,Exh.B 116:14-117:7).
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Q.
Did [the manhole cover] look like it was secure?
A.
I mean, it looked like it was something you could step on.
Q.
That's my question. Was there any indication that it would give in if you stepped on it?
A.
No.
(D.I. 129, Exh. Bat 63:05-14).
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Q.
Did it look to you like it was safe for someone to step on?
A.
It looked fine to me.
(D.I.129,Exh.Dat30:12-14).
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defect was discoverable upon inspection of the manhole cover. This implies that the owner of
the premises could have eliminated the danger with reasonable care of the premises, not that a
random person walking through the area would have recognized the manhole cover as an open
and obvious danger. For all these reasons, the Court holds that there is a question of fact
regarding the open and obvious nature of the manhole cover. See Wilmington Country Club v.
Cowee, 747 A.2d 1087, 1092 (Del. 2000).
Premcor's motion for summary judgment is DENIED. An order consistent with this
opinion will follow.
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