HAWTHORNE v. EDIS COMPANY, 01C-09-183 HLA (Del.Super. 2003)

ALFORD, J.

On this 14^th day of July 2003, upon consideration of EDIS Company, EDIS Building Systems, Inc., Ernest DiSabatino and Sons, Inc., Atlas Point, LLC, Atlas Lab Associates, and Crystal Holdings, Inc. ("Defendants/Third-Party Plaintiffs") Motion for Summary Judgment to Dismiss Plaintiff's Claim for Punitive Damages, Plaintiffs' Response in Opposition to the Motion and the record, it appears to the Court that:

(1) On April 6, 2000, Jay Hawthorne, ("Hawthorne") suffered a workplace injury which occurred as he was laying out metal decking at the Uniqema construction site in New Castle, during the scope of his employment with Summit Steel, Inc. ("Summit"). EDIS Company ("EDIS"), the general contractor, subcontracted with Summit to perform certain iron work in the erection of a four-story building on the work site. The structural steel framework had been erected and the lower three floors had been decked.

Due to a fifteen foot fall to the deck below, Hawthorne suffered a spinal cord injury with quadriplegia, leaving him unable to live independently. Hawthorne has a substantially reduced life expectancy and will require constant medical and nursing care in order to keep him alive.

In his Complaint filed September 25, 2001, Hawthorne sought compensatory damages, alleging that Defendants/Third-Party Plaintiff's negligence caused Hawthorne to slip and fall from the roof at the Uniqema worksite. On September 27, 2002, Hawthorne filed an amended Complaint adding a count for punitive damages, and incorporating twenty eight allegations directed to all Defendants/Third Party Hawthornes contending that this accident was foreseeable and that EDIS Company, despite notice, did not follow the advice of their own safety consultant to change the fall protection policy for the work site. Hawthorne argues that this failure demonstrates a reckless indifference to a foreseeable risk to the steel workers.

Defendants/Third Party Plaintiffs move the Court for Summary Judgment as they believe that their actions do not rise to the standard of egregious or outrageous behavior required for the imposition of punitive damages.

(2) Summary judgment is appropriate when the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. In considering such a motion, the Court must evaluate the facts in the light most favorable to the non-moving party. Summary judgment will not be granted under circumstances where the record reasonably indicates 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 to the circumstances. If the non-moving party cannot make such a showing of the existence of an element essential to their case after the completion of discovery, the Court is obliged to grant summary judgment.

(3) In a personal injury action, Delaware law requires that punitive damages be imposed only after careful examination of whether, "the defendant's conduct is `outrageous,' because of `evil motive' or `reckless indifference to the rights of others.'" The Jardel Court further states that both the outrageous conduct and the reckless indifference require a distinct state of mind, one a conscious awareness, the other a conscious indifference. But, the Court states, "each requires that the defendant foresee that his unacceptable conduct threatens particular harm to the plaintiff either individually or as part of a class similarly situated."

(4) Defendant contends that pursuant to the testimony of corporate representatives of EDIS Building Systems, Inc., Ernest DiSabatino and Sons, Inc., Atlas Labs and Crystal Holdings, Inc. these entities were not parties to the contract for construction at the Uniqema site and had no involvement with the construction project that forms the basis for Hawthorne's Complaint. On June 20, 2003, the Court granted summary judgment as to EDIS Building Systems, Inc., Ernest DiSabatino and Sons, Inc., Atlas Lab Associates and Atlas Point, LLC. However, a genuine issue of fact exists as to whether the remaining Defendants owe a duty of care to Hawthorne, and thus summary judgment has been denied as to these parties.

EDIS and Summit point out that for a Defendant's conduct to be found outrageous, egregious, willful or wanton, such conduct must be more than mere mistake, error in judgment or inadvertence. The decision actually has to be made with evil motive or reckless indifference to the decision's foreseeable effects. Although, EDIS and Summit do not believe that they can be found legally liable in negligence, they argue that assuming arguendo they are found to have been negligent to some extent, their actions do not rise to the standard of egregious or outrageous behavior which is required for punitive damages under Jardel.

EDIS and Summit point out that Hawthorne must show that, "the precise harm which eventuated must have been reasonably apparent but consciously ignored in the formulation of the judgment." EDIS and Summit assert that no evidence in the record suggests that they knew Hawthorne would sustain such injuries as a result of the fifteen foot fall from the decking on the construction site and they consciously decided not to take any precautionary measures to prevent such harm. EDIS and Summit further argue that the enumerated allegations set forth in Hawthorne's Complaint are general allegations directed to the collective Defendants and not specific as to any conduct of any one of the Defendants/Third-Party Plaintiffs. Finally, EDIS and Summit point to the fact that OSHA guidelines require a 30 foot fall protection policy for ironworkers and even if it had a duty, it was compliant with OSHA guidelines and cannot be held to a stricter standard. Thus, EDIS and Summit contend that their actions in contractually requiring OSHA compliance do not rise to the requisite standard of outrageous and egregious conduct required to allow punitive damages under Delaware law.

(5) Hawthorne asserts that EDIS was familiar with the need for appropriate fall protection for ironworkers performing steel erection, because of a serious career ending incident involving Jacob Boyce on July 1, 1996, at its Wilmington Trust project. Hawthorne points out that after this incident, EDIS Company's Safety Director, Mr. Richard DiSabatino, was informed by his Safety Consultant, Mr. George Warner, that it was necessary to adopt a six foot tie-off for fall protection in order to avoid a subsequent accident. Mr. DiSabatino was in agreement with this policy. Upon inquiry, he informed the Safety Consultant that he was working on implementing the six foot tie-off policy. Subsequently, EDIS ignored its Safety Consultant's advice and proceeded to allow iron work to be done as long as there was compliance with OSHA requirements, which permitted ironworkers to fall a distance of thirty feet without any type of fall arrest system. EDIS implemented a six foot fall protection policy in March of 2002, one year after the date of this accident and five years after the date of the Jacob Boyce incident. Previous to the Boyce accident in 1996, EDIS had adopted a fifteen foot fall protection policy for steel erectors. At that time, the policy in force recognized a stricter guideline than the OSHA requirement. Unexplainably, after the Boyce accident, EDIS reverted to the less restrictive OSHA requirement of a thirty foot tie-off policy.

Hawthorne, therefore, contends that EDIS knew how to deal appropriately with the inherent risks presented by falls of fifteen feet or more from firsthand experience as well as from the advice of its Safety Consultant. Furthermore, Hawthorne maintains that EDIS "controlled" the safety aspect of the Uniqema worksite, as it controlled the tie-off policy.

Hawthorne discusses and distinguishes the Jardel case, in which the Delaware Supreme Court found that the facts did not support an award of punitive damages because the defendant did not act with reckless indifference, from the instant case. In Jardel, a mall employee was kidnaped from the mall parking lot, assaulted and raped. She later sued the owner of the mall and its parent company, alleging that her injuries were attributable to their negligence by not providing adequate security measures. The defendants were aware of some risk, however, not the magnitude of the risk to which plaintiff was exposed. The Court found that punitive damages were not available because it could not be said that the defendant had turned its back on a known risk.

Hawthorne maintains that EDIS knew of the risk to steelworkers after Jacob Boyce fell thirteen feet on an EDIS job site. Hawthorne fell fifteen feet. EDIS knew that Mr. Boyce had suffered a spinal cord injury and is permanently disabled, just as Hawthorne. At least four years prior to Hawthorne's fall, EDIS knew of the risk that steelworkers faced from falling thirteen feet or more.

Hawthorne further relies on Cloroben Chemical Corporation v. Comegys, in which the Delaware Supreme Court found that punitive damages are recoverable where a defendant exhibits a wanton or willful disregard for the rights of the Hawthorne. In Cloroben, a young girl was splashed with a product commonly used to unclog drains, and as a result suffered severe second and third degree burns over twenty percent of her body. The Delaware Supreme Court stated that the defendant's conduct must exhibit a "conscious indifference" or an "I don't care" attitude in order to constitute willful or wanton conduct. The Court found that the record supported a finding that the defendants acted willfully as Cloroben sold a product which they knew to be dangerous. Cloroben was aware that their product was made available to the public and were aware of several injuries it had caused. Thus, the Court found sufficient evidence to support an award of punitive damages.

Similarly, in the instant case, after the 1996 Boyce incident EDIS was aware of the injuries that steelworkers suffered from falling thirteen feet or more. Hawthorne points out that Defendant knew how to remedy the situation, by implementing a six foot tie-off policy and neglected to do so.

Additionally, Hawthorne points out that less than a month before Hawthorne fell, EDIS ignored a warning letter dated March 8, 2000, from Mr. Warner. Mr. DiSabatino testified that there should have been more of a follow up letter from him, which was never done. Hawthorne maintains that these facts all demonstrate that this was not merely an error in judgment, but EDIS consciously and recklessly ignored the warnings. Thus, EDIS turned their back on a known hazard and placed steelworkers at risk.

With regard to Defendant's compliance with OSHA, Hawthorne points out that OSHA provides that nothing in OSHA shall be construed to "enlarge or diminish or effect in any other manner the common law or statutory rights, duties or liabilities of employers and employees under any law with respect to any injuries, diseases or death of employees arising out of, or in the course of, employment." Thus, Hawthorne contends, that OSHA is not determinative of the duty or the standard of care, especially considering all of the warnings Defendant ignored.

Finally, Hawthorne argues that the deterrent basis for the imposition of punitive damages is clear in this case because if EDIS Company is found liable it will be because it knew better and did not care. Hawthorne contends that an award of punitive damages will deter similar acts of reckless indifference where the general contractor has greater knowledge of the risks than the subcontractor.

(6) Viewing the facts in the light most favorable to the Plaintiff, the Court finds that Plaintiff is correct in his assertion that there exists a question of fact as to whether EDIS knowingly ignored an apparent risk that Hawthorne could fall from a height of fifteen feet and suffer serious injury. Thus, this is a question of fact for consideration by the jury and the Court must deny the Motion for Summary Judgment.

For the aforementioned reasons, the Motion for Summary Judgment with respect to Plaintiff's Claim for Punitive Damages, as to the remaining Defendants/Third-Party Plaintiffs is hereby DENIED.