Roca v. E. I. du Pont de Nemours and Company Property Owners' Duties To An Independent Contractor's Employees In Delaware
Are property owners responsible for the safety of their independent contractor's employees or the contractor's negligence? If the contractor is truly "independent," the Delaware Superior and Supreme Courts say no. In Roca v. E. I. du Pont de Nemours and Company the Delaware Supreme Court affirmed the Delaware Superior Court's finding that property owners have no duty to protect an independent contractor's employees from alleged "peculiar risks" encountered during the performance of the contracted work. The Court based its decision on its finding that an independent contractor's employees are not included in the protected class of "others" within the meaning of the "peculiar risk" doctrine as defined in Chapter 15 of the Restatement (Second) of Torts (the "Restatement").
I. BACKGROUND: THE PECULIAR RISK DOCTRINE
A long-standing general rule of contracting is that those who hire independent contractors to perform construction, maintenance and repair work are not responsible for their independent contractor's negligence. In 2001, an independent contractor's employee challenged this general rule. He argued that asbestos on the premises at which he worked as a pipefitter presented a "peculiar risk" of harm and that, pursuant to the "peculiar risk" doctrine of the Restatement (Second) of Torts, the premises owners had a duty to warn him of the risk of working around asbestos. Because the owners failed to warn or protect him from this alleged "peculiar risk," he argued that the property owners were responsible for injuries caused by his asbestos exposure.
The "peculiar risk" doctrine is a legal theory pursuant to which persons or entities that hire independent contractors may be liable for their independent contractor's actions if the work involves a "peculiar risk." The Restatement defines a "peculiar risk" as "work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken."
One function of the "peculiar risk" doctrine is to prevent landowners from contracting out liability for injuries arising from performance of hazardous work to fiscally irresponsible independent contractors, thereby defeating the recovery of an injured innocent third party. Under the "peculiar risk" doctrine, injured third parties can seek recovery from both the contractor whose active negligence independently contributed to the injury, as well as the landowner, who benefited from the work.
The Restatement's vague definition of "peculiar risk" gives little guidance, however, to property owners that hire independent contractors about the type of hazards for which they may be liable or the classes of individuals to whom they owe a duty of protection. First, virtually any type of work arguably can create an "unreasonable risk of physical harm" if not properly performed. Injured independent contractor employees have claimed, with varying degrees of success, that virtually every type of construction related hazard presents a "peculiar risk," including roofers falling off roofs, divers drowning while working under water, lumberjacks being struck by falling trees, employees falling off ladders and scaffolds, electricians suffering electric shocks, and employees injured in excavation cave-ins. Moreover, except in the clearest cases, what constitutes a "peculiar risk" is a factual question for resolution by a jury. A property owner, therefore, generally has no way of knowing whether the risks associated with contracted work are merely part of the risk of the contracted work for which the contactor is responsible, or are "peculiar risks" for which the owner may be responsible. Second, the Restatement gives little guidance about who is an "other" that the property owner must warn or protect.
II. IN RE ASBESTOS LITIGATION (ROCA)
A. Factual Background and Plaintiff's Arguments
In 2001, Carl and Evelyn Roca, a union pipefitter and his wife, sued several property owners that owned the properties at which Mr. Roca worked in the 1960s and 1970s as an employee of various independent contractors. The Rocas alleged that Mr. Roca worked near insulators installing or removing asbestos-containing insulation, and that exposure to asbestos-containing dust created by the insulators caused him to develop mesothelioma, a rare form of cancer of the pleura surrounding the lungs attributed almost exclusively to asbestos exposure. They argued that the presence of asbestos-containing products at the work sites presented a "peculiar risk" of harm to Mr. Roca, and that the property owners had a duty to warn or protect him from the hazards associated with working around asbestos, even though Mr. Roca's employer contractually assumed responsibility for all work site safety, including Mr. Roca's protection. The Rocas alleged that the property owners were responsible for Mr. Roca's mesothelioma because they had failed to warn him about asbestos at his work site and the dangers of asbestos, and had not taken reasonable measures to protect him.
Alternatively, the Rocas claimed that the property owners were responsible for Mr. Roca's injuries because they controlled his various work sites and by their actions had assumed responsibility for work site safety. The Rocas asserted that general instructions about where independent contractor employees could park, where they could store their tools and materials, requirements that employees wear hard hats and safety glasses, general safety requirements relevant to fire safety, and even changing the specifications of the work itself, constituted sufficient control to impose liability on the property owners.
B. The Property Owners' Arguments
After substantially completing discovery, the property owners moved for summary judgment on the grounds that asbestos did not present a "peculiar risk" and, in any case, the "peculiar risk" doctrine did not apply to independent contractors such as Mr. Roca. As for the Rocas' "control" claim, the property owners responded that, to be liable for injuries from their "control" of the work, their actions must have affirmatively contributed to the alleged injury. Merely instructing independent contractors where to park, where to store their tools and materials, establishing general non-job-related safety requirements, and inspecting the work to ensure compliance with contract specifications were not sufficient to create liability.
C. The Court's Decision on Peculiar Risk
The Superior Court agreed with the defendant property owners and granted summary judgment in the owners' favor, stating:
[I]t is not reasonable to impose a duty on employers where the Restatement (Second) of Torts does not contemplate that the protected class of "others" includes a contractor's employees under the peculiar risk provisions of Chapter 15 and where there is an adequate remedy available under Delaware's workers' compensation law.
The Court observed that since the early 1980's, an overwhelming majority of state and federal courts had held that employers are not liable to an independent contractor's employees for harm caused at the employer's work site, and noted four primary factors behind this trend. First, landowners who hire independent contractors indirectly pay the cost of workers' compensation insurance premiums that shield the contractor from further liability. The Court reasoned that those who pay indirectly for the insurance as part of the contract should enjoy similar protection. Second, workers' compensation insurance achieved the original aim of the peculiar risk doctrine to ensure that a source of recovery existed for those injured by work-related hazards. Third, while a landowner that hires an independent contractor may easily ascertain workplace risks posed to passers-by and those otherwise outside the job, they may not have the expertise to appreciate, detect and reduce on-the-job, the risks to an independent contractor's workers by controlling the means and methods of performing the work. In particular, the Court observed that application of the "peculiar risk" doctrine must be limited "so that employers of independent contractors will not have to become conversant with all activities of their contractors." Finally, the Court noted that other remedies exist under the Restatement, such as the right to sue landowners for active negligence, or Section 343, for failing to disclose certain defects on the land or premises unrelated to the work of the project.[21,22]
D. The Court's Decision on Active Control
In a ruling from the bench before issuing its written opinion, the Court also rejected the Rocas' control arguments. Directing its attention to the Rocas' argument that the defendants assumed responsibility for overall safety because they retained the power to change project specifications, the Court saw no difference between setting project specifications and changing them in the course of the work. The Court stated that, if it accepted the Rocas' argument, it would "wipe out the whole theory of independence." The Court also rejected the Rocas' argument that the defendants assumed overall responsibility for work site safety by imposing general work site rules on the contractors. The Court stated that "the adoption of [generalized safety] regulations is … something the courts and society ought to encourage, and [should not] penalize a party who adopts them." The Court, therefore, held that because the safety regulations imposed by the defendants were of a generalized nature; the defendants did not exercise sufficient control over the work to render them liable for Mr. Roca's alleged injury.
E. Appeal: Roca v. E. I. du Pont de Nemours and Company
The Rocas appealed the trial court's decision to the Delaware Supreme Court, asserting that the Superior Court had erred in its finding that Mr. Roca was not an "other" under the "peculiar risk" doctrine, and had also erred in finding that the defendants did not control Mr. Roca's work. At oral argument, the Rocas raised for the first time the theory that the property owners also were liable for Mr. Roca's injuries under Section 343 of the Restatement (Second) of Torts. The Rocas argued that the asbestos-containing materials on the defendants' property presented an unreasonable risk of harm and the property owners had a duty to warn business invitees such as Mr. Roca of those risks, and failed to do so.
The Supreme Court rejected the Rocas' arguments and affirmed without comment the trial court's rulings on the peculiar risk and control issues. The Court refused to consider the Rocas' Section 343 argument on grounds that they had failed to preserve or raise the issue on appeal, and thereby had waived the issue.
The Supreme Court's decision has firmly established as Delaware law the proposition that property owners have no duty under the "peculiar risk" doctrine to protect independent contractor employees from injury on the job. Coupled with the general rule of non-liability for a contractor's negligence, property owners are reasonably safe from liability for workplace injuries to their independent contractors' employees.
III. SECTION 343, THE UNRESOLVED QUESTION
Unresolved, however, is the scope of a property owner's duty to warn an independent contractor's employees of unreasonable hazards on the property under Section 343 of the Restatement. Specifically, the question is whether a hazard created in the course of an independent contractor's work will constitute a hazard on the property for which property owners may be liable.
Well-settled Delaware law holds that a property owner has a common law duty to provide a reasonably safe workplace for those invited onto the property to work. To fulfill this duty, property owners must warn or protect invitees, including an independent contractor's employees, from unreasonable risks of harm at some point on the premises. In Roca, the Court alluded to such a duty as a possible alternative source of compensation for injured independent contractor employees. Unanswered, however, is whether such hazards include those created in the course of performance of the work, or on the site of the contractor's work. The Delaware Courts clearly have held that property owners have no duty to warn or protect an independent contractor's employees of work-related risks under the "peculiar risk" doctrine.
The precise question of the form of alternative liability under Section 343 is now before the Superior Court. Several independent contractor employees have sued various property owners, claiming that the property owners failed to warn them of unreasonable risks on the property from asbestos-containing materials. A decision by the Delaware Supreme Court will likely be required to determine the scope of a property owner's potential liability to independent contractor employees as "invitees" under Restatement Section 343. Such a decision, however, is at least a year or more away.
IV. WHAT DOES THE ROCA DECISION MEAN FOR PROPERTY OWNERS?
Until Roca, virtually every property owner in Delaware that hired an independent contractor faced the threat of potential liability, or at least substantial litigation expense, from lawsuits by injured independent contractor employees asserting that hazards encountered on the job were "peculiar," and that the property owners were liable for the injuries. Before Roca, independent contractor employees were arguably "others" to whom property owners owed a duty, and employees could claim virtually any risk to be "peculiar." Property owners faced the prospect of either settling or enduring the risks of an adverse judgment at trial.
The Roca decision narrowed those potential risks. It now is clear that as long as property owners do not control how their independent contractors perform their work, an independent contractor's employee cannot rely upon the "peculiar risk" doctrine to sue those that hire independent contractors for work-related injuries. Still to be resolved, however, are the circumstances, if any, under which hazards created during performance of the work may be construed as hazards or defects on the property for which property owners may be liable.
1 Somers S. Price, Jr. is a partner with Potter Anderson & Corroon LLP. Mr. Kron is an associate with Potter Anderson. Mr. Price, Mr. Kron, and Daniel F. Wolcott, Jr. served as counsel for General Motors Corporation and DaimlerChrysler Corporation in the Roca case. The views expressed in this article are those of the authors alone and not of Potter Anderson & Corroon LLP or its clients.
2 842 A.2d 1238 (Del. 2004) (reargument denied).
3 The Superior Court is the trial court in Delaware.
4 RESTATEMENT (SECOND) OF TORTS § 413.
5 Zueck v. Oppenheimer Gateway Props., Inc., 809 S.W.2d 384, 386 (Mo. 1991) (en banc).
6 Stockwell v. Parker Drilling Co., 733 P.2d 1029 (Wyo. 1987).
7 Donch v. Delta Inspection Servs., Inc., 398 A.2d 925 (N.J. Super. Ct. 1979).
8 Peone v. Regulus Stud Mills, Inc., 744 P.2d 102 (Idaho 1987).
9 Coonrod v. Archer-Daniels Midland Co., 984 S.W.2d 529 (Mo. Ct. App. 1999); Zueck v. Gateway Props., Inc., 809 S.W.2d 384 (Mo. 1991); and Curless v. Lathrop Co., 583 N.E.2d 1367 (Ohio App. 1989).
10 King v. Shelby Rural Elec. Coop. Corp., 502 S.W.2d 659 (Ky. Ct. App. 1974) and Jones v. Chevron U.S.A., Inc., 718 P.2d 890 (Wyo. 1986).
11 Ray v. Schneider, 548 A.2d 461 (Conn. App. 1988) and Welker v. Kennecott Copper Co., 403 P.2d 330 (Ariz. App. 1965).
12 Chesapeake & Potomac Tele. Co. of Md. v. Chesapeake Utils. Corp., 436 A.2d 314, 329 (Del. 1981).
13 2002 WL 31007993 (Del. Super. Ct. Sept. 3, 2002).
14 Roca, 2002 WL 31007993 at *4.
15 Id. at *3.
20 Id. at *1, citing Bryant v. Delmarva Power & Light Co., 1995 WL 653987 *6 (Del. Super.)
22 Mr. Roca did not assert a claim under § 343. Section 343 states that "A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger." The Court thus did not identify the type of "defects on the land" to which it referred, nor did it address the scope of a property owner's duty to an independent contractor's employees regarding such defects.
23 Transcript of oral argument before Judge Babiarz on June 20, 2002 at p. 40.
24 Transcript of oral argument before Judge Babiarz on July 1, 2002 at p. 64. The Court further noted that a property owner or general contractor that assumes responsibility for safety tells its contractors or subcontractors that they are not responsible for safety. If the owner or contractor fails to discharge that assumed duty, it creates an additional hazard for which it may be liable.
25 DiOssi v. Maroney, 548 A.2d 1361, 1368 (Del. 1988).
26 Id., citing RESTATEMENT (SECOND) OF TORTS § 343. See also Chesapeake & Potomac Tele. Co. of Md. v. Chesapeake Utils. Corp., 436 A.2d 314 (Del. 1981) (applying Maryland law).