IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DEYANARA MOJICA HICHEZ, Individually )
and as Personal Representative of the Estate of )
RAFAEL MENA PEREZ, her husband, and as )
parent and next friend of their minor children, )
L.M.M., D.M.M., and D.M.M., ) C.A. No. N19C-10-273
) KMM
Plaintiffs, )
)
v. )
)
DELMARVA POWER & LIGHT COMPANY, )
PEPCO HOLDINGS, LLC, ASPLUNDH TREE )
EXPERT CO., ASPLUNDH TREE EXPERT, )
LLC, VERIZON DELAWARE, LLC, and )
COMCAST OF DELMARVA, LLC, )
)
Defendants.
Date Submitted: May 29, 2026
Date Decided: August 14, 2026
Delmarva’s Motion for Summary Judgment – GRANTED in part, DENIED in part
Comcast’s Motion for Summary Judgment – DENIED
MEMORANDUM OPINION AND ORDER
Francis J. Murphy (argued), Scott M. Himelein (argued), MURPHY & LANDON, P.A., Wilmington, Delaware, Attorneys for Plaintiffs.
Lisa C. McLaughlin (argued), PHILLIPS MCLAUGHLIN & HALL, Wilmington
Delaware, Attorney for Defendant Delmarva Power & Light Company.
Robert M. Greenberg, TYBOUT REDFEARN & PELL, Wilmington, Delaware; Mathew
C. Wilson, GOLDBERG SEGALLA LLP, Philadelphia, Pennsylvania, Attorneys for Defendant Verizon Delaware LLC.
Ashley M. Scrivner (argued), ZARWIN BAUM DEVITO KAPLAN SCHAER TODDY, P.C., Wilmington, Delaware, Attorney for Defendant Comcast of Delmarva LLC.
Miller, J.
I. INTRODUCTION
Rafael Mena Perez was employed by a tree trimming company that was hired
by Delmarva Power & Light Company (“Delmarva”) to trim a tree around its
electrical lines. The company assigned that task to Mr. Mena Perez. While he was
in the tree, he was electrocuted and died.
Plaintiffs—Mr. Mena Perez’s estate and loved ones—bring claims against
Delmarva, Verizon Delaware LLC (“Verizon”), and Comcast of Delmarva LLC
(“Comcast”). The thrust of Plaintiffs’ claims is that Delmarva, Verizon, and
Comcast failed to properly maintain their equipment surrounding the area of the tree
in a safe manner and those failures caused Mr. Mena Perez’s injuries. Delmarva1
and Comcast2 each moved for summary judgment, asserting they owed no duty to
Mr. Mena Perez.
Delmarva relies on common law limitations on duties of a landowner to
employees of independent contractors hired to work on the property. Delmarva
asserts that because Mr. Mena Perez was injured by the very risk inherent in his job
(trimming branches near electrical lines), as a landowner, it owed him no duty. But,
a landowner owes a duty to warn its business invitees of defective conditions on its
property. While Delmarva owed no duty to warn of the defective condition of
1
D.I. 425.
2
D.I. 429.
1
branches near electrical lines—the very hazard Mr. Mena Perez was hired to
eliminate—Plaintiffs point to other defective conditions that they argue caused Mr.
Mena Perez’s injuries. Plaintiffs point to evidence in the record in support, which
raises factual disputes. Accordingly, Delmarva’s Motion for Summary Judgment on
this theory is DENIED.
Delmarva also seeks summary judgment on Plaintiffs’ claim that Delmarva
owed a non-delegable duty. Again, because of Delmarva’s landowner status and
Mr. Mena Perez’s employee of an independent contractor status, Delmarva asserts
that the law does not support such a duty. On this claim, Delmarva finds success.
Under the legal relationship between Delmarva and Mr. Mena Perez, Plaintiffs must
point to statutes or regulations that require the use of specific safety precautions
while trimming trees near electrical lines. Plaintiffs have failed to do so.
Accordingly, Delmarva’s Motion for Summary Judgment on this claim is
GRANTED.
Comcast argues that it owed no duty to Mr. Mena Perez because it is a “legal
stranger” to Mr. Mena Perez. Duty is derived from the relationship between parties.
In determining whether a relationship exists such that the law will impose a duty,
the court must look to statutory and common law. The Delaware Code regulates
cable television companies and incorporates the National Electric Safety Code (the
“NESC”). The NESC requires communication cables to be maintained in a safe
2
manner, including the trimming of vegetation around communication lines. Among
the purposes for doing so is the protection of persons during the maintenance of
overhead electrical lines. Mr. Mena Perez was such a person. Accordingly, Comcast
owed a duty to Mr. Mena Perez and its Motion for Summary Judgment is DENIED.
II. FACTUAL BACKGROUND3
A. The subject tree and related equipment
The tree situated on the property located around Saulsbury Avenue and
Temple Terrance in Wilmington (the “Tree”), grew into and around utility lines,
which were fastened to a utility pole on the nearby sidewalk on Saulsbury Avenue
(the “Sidewalk Pole”) and another in a residential backyard (the “Backyard Pole”).
The utility poles are owned by Verizon. Attached to the poles, at the highest
elevation, are Delmarva’s electrical conductor lines, comprised of 12kV tree wire.4
Below, Comcast’s and Verizon’s communication lines are attached.
Delmarva is required to maintain the vegetation around its electrical
conductors. It engaged Asplundh Tree Expert, LLC (“Asplundh”) to perform such
services. Part of Asplundh’s scope of work was to trim the Tree around the electrical
3
The facts are derived from the undisputed facts and exhibits submitted by the parties. Citations in the form of [Name] Rep. refer to expert reports submitted as exhibits by the parties. Citations in the form of [Name] Disclosure refer to expert disclosures submitted as exhibits by the parties. Citations in the form of [Name] Dep. refer to expert and fact witness testimony from a deposition transcript submitted as an exhibit by the parties.
4
The parties do not dispute that Delmarva is a landowner by virtue of its utility easement.
3
and communication lines on August 2, 2018.5 Asplundh employee Mr. Mena Perez
was assigned this job.6
The electrical conductor lines running through the Tree created problems in
the years leading up to the August 2018 incident. Specifically, a homeowner called
Delmarva “two or three times” “[s]o that they could trim” the Tree, after she
witnessed arcing and “sparks flying [onto her] roof” as a result of the electrical lines
coming into contact with the Tree.7 On one occasion, the arcing was so severe that
two branches caught on fire.8 In response to the calls, Delmarva “came out [to trim]
twice[.]”9
Verizon’s and Comcast’s lines were passing through and contacting the
Tree.10
B. The incident
On August 2, 2018, Mr. Mena Perez was a climber, i.e., his task was to climb
into the Tree and trim its branches. To get a sense of the job, he and his co-workers
looked at the Tree, the area surrounding it, and discussed with their superiors what
5
D.I. 423, Ex. A (“Floyd Rep.”) at 13. Tree wire is the term used for electrical conductors that have a factory installed extruded plastic covering. The purpose of the covering is to reduce service outages, it does not provide sufficient insulation to make a conductor safe to touch. Id. at 7. 6
D.I. 421, Ex. A (“Webber Rep.”) at 8; D.I. 483 (Compendium of Deposition Transcripts Volume IV, part 2 (“Bellafore-Dougherty Dep.”)) at 19–20 (describing the location of the Tree in her backyard).
7
Bellafore-Dougherty Dep. at 28, 43, 50.
8
Id. at 50–51.
9
Id. at 46–47.
10
D.I. 422, Ex. A (“Orosz Rep.”) at 17.
4
needed to be done.11 The crew concluded that the Tree “was a regular tree, just like
the ones [Asplundh] did every day,”12 and the surrounding area did not present any
greater danger than what the crew typically experienced.13 Thereafter, Mr. Mena
Perez climbed into the tree and began to trim. When a climber is in the tree,
Asplundh has another employee on the ground (a “spotter”) to observe the climber
and keep him safe.14
Roughly 30 to 40 minutes after he started, Mr. Mena Perez requested that his
spotter go to a truck—approximately 50 to 100 feet away from the Tree—to retrieve
him water.15 The spotter obliged and headed toward the truck.16 Upon arriving at
the truck, the spotter heard Mr. Mena Perez scream twice,17 and rushed back to the
Tree, finding Mr. Mena Perez hanging in his harness, unresponsive.18 The spotter
alerted other crew members, who quickly arrived on the scene.19 The crew lowered
11
D.I. 483 (Compendium of Deposition Transcripts Volume IV, part 1 (“Pena Dep.”)) at 41–44, 86.
12
Id. at 86.
13
Id.
14
D.I. 482 (Compendium of Deposition Transcripts Volume III, part 2 (“Mendoza Figueroa Dep.”)) at 44-49.
15
Pena Dep. at 45.
16
Id.
17
Id. at 45–49
18
Id. at 50; Mendoza Figueroa Dep. at 53.
19
Pena Dep. at 55.
5
Mr. Mena Perez out of the Tree.20 EMS arrived and transported him to a local
hospital,21 where he was later pronounced dead.22
An autopsy revealed that electrocution, through contact with Delmarva’s
electrical lines, caused his death.23 Mr. Mena Perez had electrical burns on both
hands, the upper part of both legs, and the lower part of his left leg.24 The electrical
current path indicates that the current flowed through his heart, “causing ventricular
fibrillation and ultimately cardiac arrest and death.”25
C. Summary of Plaintiffs’ experts’ relevant opinions
Plaintiffs proffer expert reports and testimony from James Orosz, H. Landis
Floyd, Joseph Loferski, and Mark Webber, among others. These experts’ opinions
relate to the condition of the Tree, the utility lines, and poles.26
1. James Orosz
James Orosz, an electrical engineer, states that “[i]t is known … that
vegetation in contact with [electrical] lines can conduct fatal levels of electrical
current.”27 He explains that it is not the electrical voltage but the electrical current
20
Id. at 56–57.
21
Id. at 56–58.
22
D.I. 419, Ex. A (“Arden Rep.”) at 2.
23
Id.
24
Id.
25
Id.
26
Various experts also offer opinion as to Verizon. Because it did not file a motion for summary judgment, the Court focuses on the opinions relating to Delmarva and Comcast. 27
D.I. 422, Ex. A (“Orosz Rep.”) at 5.
6
that causes a person to be electrically shocked.28 Mr. Orosz noted that Mr. Mena
Perez had injuries to both hands and both legs, indicating that the electrical current
flowed through his body and exited through his legs.29 Mr. Orosz opines that Mr.
Mena Perez “made indirect contact” with Delmarva’s electrical line.30 Mr. Orosz
further opines that a cause of that indirect contact was Delmarva’s failure to inspect
and maintain its electrical lines. Orosz relies on various regulations in support.
Based on his review of historical photographs of the area, including of the
Tree and relevant electrical and communication lines, Mr. Orosz concludes that
Delmarva failed to inspect and perform necessary vegetation management on the
Tree for at least six years, which caused Mr. Mena Perez’s electrocution.31
Mr. Orosz opines that Comcast similarly failed to adequately maintain the
vegetation around the communication lines, which caused Mr. Mena Perez’s
electrocution.
Finally, Mr. Orosz opines that the Sidewalk Pole had been in place since 1953
and it had not been properly or timely inspected in the decades prior to the incident.32
The top of the pole was cracked and “had rotting” at its base.33 The Sidewalk Pole
had significant bend toward its top, and because of this defect, the Delmarva line
28
Id. at 7.
29
Id. at 5.
30
D.I. 422, Ex. D (“Orosz Dep.”) at 18.
31
Orosz Rep. at 11.
32
D.I. 422, Ex. B (“Orosz Disclosure”) at 60.
33
Id.
7
“attached to the pole was not stable, was more likely to move, sag, and sway[.]”34
The Sidewalk Pole was defective and in need of replacement prior to the incident on
August 2, 2018.
2. H. Landis Floyd
Mr. Floyd is an electrical engineer with over 45 years of experience in
occupational electrical safety management.35 He opines that the utility poles were
in a damaged and rotted condition.36 Mr. Floyd further opines that the condition of
the Sidewalk Pole (including the detachment of the top part of the pole) and the
attachment of Delmarva’s line to that pole, allowed for greater movement and sway
of the line, creating an even greater likelihood that Delmarva’s line would come in
to contact with the Tree.37
Mr. Floyd further opines on the extent of contact between the Tree and
Delmarva’s line. He notes that the evidence shows that the plastic covering on
Delmarva’s line had been damaged38 “due to arcing and abrasion[,] indicating [that
Delmarva’s line] had [made] multiple contacts with the [T]ree.”39 Mr. Floyd opines
this created “a hazardous, life-threatening condition [] that allowed electric current
34
Id.
35
Floyd Rep. at 1, 7.
36
The Sidewalk Pole was installed in 1953 and the Backyard Pole was installed in 1951. D.I. 423, Ex. C (“Floyd Rebuttal Disclosure”) at 6.
37
Floyd Disclosure at 50; Floyd Rebuttal Disclosure at 6.
38
Floyd Rep. at 12.
39
Id. Delmarva’s line “had been in contact with tree limbs[.]” Id. at 15.
8
to travel through the [T]ree to earth[,]” presenting a shock hazard to any person in
contact with the Tree.40
As to Comcast, Mr. Floyd opines that “[h]ad … Comcast taken prior actions
to prevent” the hazardous conditions as a result of the conditions of the utility poles
and Tree—such as replacing the pole or removing the Tree—“the tree limbs would
not have been in contact with [Delmarva’s electrical line] and the incident that
resulted in [Mr.] Mena Perez’s death would not have occurred.”41
3. Joseph Loferski
Joseph Loferski is an expert in wood science and wood engineering. Mr.
Loferski opines that on August 2, 2018, the Sidewalk Pole was “old, severely
weakened, fractured and decayed in the upper zone and rotted with missing wood at
the highly stressed bottom of the pole.”42 Utility poles act as cantilever beams, with
the stress on the pole focused on the bottom.43
Mr. Loferski opines that the Backyard Pole was “old, severely weakened,
and decayed, and in need of replacement.”44
40
Id. at 13.
41
Id. at 17–18.
42
D.I. 420, Ex. A (“Loferski Disclosure”) at 30.
43
Id. at 31.
44
Id. at 32.
9
4. Mark Webber
Mark Webber is a Master Arborist, a Certified Utility Arborist Specialist, and
is tree risk assessment certified.45 Mr. Webber opines that Delmarva and Comcast
failed to adequately manage vegetation surrounding their lines.46 That failure, he
continues, exposed Mr. Mena Perez to an unnecessary electrical hazard.47
Mr. Webber inspected the Tree during a site visit48 and reviewed 21 aerial and
street-view photographs of the Tree and the area surrounding it.49 The photographs
span over a decade, from September 2005 through March 2019.50 Mr. Webber
opines “that the [T]ree was not actively managed by the defendants Comcast, …
[and] Delmarva … for 18-years prior to [Mr. Mena Perez’s] injuries and this is the
cause of his injuries.”51
Mr. Webber additionally opines that his “inspection found the [T]ree in a
highly deteriorated condition” and that it “contained severely decayed regions”
amounting to an “imminent risk [of] failure onto [electrical lines], people, and
property.”52
45
Webber Rep. at 7.
46
Id. at 54.
47
Id. at 3.
48
Id. at 40.
49
Id. at 11–30.
50
Id.
51
Id. at 58.
52
Id. at 40.
10
III. THE PARTIES CONTENTIONS
Delmarva does not dispute its obligation to maintain vegetation around its
electrical lines. It contends that because it hired Asplundh to perform tree trimming
services and Mr. Mena Perez was injured and died from the very risk of performing
that work, Plaintiffs cannot recover and thus, it is entitled to summary judgment on
Count II.
Delmarva also moves for summary judgment on Count VI, which asserts that
Delmarva owed Mr. Mena Perez a non-delegable duty. Delmarva contends that this
is so because Delmarva owed no duty to Mr. Mena Perez as he does not fall within
the protections of Section 409 of the Restatement (Second) of Torts.
Plaintiffs respond that, unlike the asbestos cases Delmarva relies on, Mr.
Mena Perez did not create the hazard that injured him. Further, Delmarva knew this
electrical line created a hazard by repeatedly coming into contact with the Tree and
for years Delmarva failed to properly inspect the poles and the wires or warn Mr.
Mena Perez of the dangers, thus, creating issues of fact, precluding summary
judgment.
Comcast contends that it owed no legal duty to Mr. Mena Perez and its
equipment did not cause Mr. Mena Perez’s injuries. Therefore, it is entitled to
judgment as a matter of law.
11
Plaintiffs respond that the Delaware Code imposes a legal duty on Comcast,
via its franchise, to comply with the NESC, which requires Comcast to engage in
vegetation management. Because it did not do so, Plaintiffs contend they have raised
factual disputes, making summary judgment impermissible.
IV. SUMMARY JUDGMENT STANDARD
A motion for summary judgment may only be granted when no genuine issue
of material facts exists, and the moving party is entitled to judgment as a matter of
law.53 The motion will be denied “if there is a material fact in dispute or if it seems
desirable to inquire into the facts to clarify the application of the law to the
circumstances.”54 The moving party bears the initial burden of showing the absence
of a genuine issue of material fact.55 If that burden is met, “the burden shifts to [the]
non-moving party to demonstrate that there are material issues of fact.”56 The court
must view the facts and evidence, and draw all reasonable inferences thereof, in the
light most favorable to the non-moving party.57
53
Super. Ct. Civ. R. 56(c); see, e.g., Jiggy Puzzles, LLC v. Steelhead Acquisition EE, Inc., 2026 WL 465112, at *4 (Del. Super. Feb. 18, 2026).
54
Radulski v. Liberty Mut. Fire Ins. Co., 2020 WL 8676027, at *3 (Del. Super. Oct. 28, 2020) (cleaned up).
55
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
56
Id. at 681.
57
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
12
V. ANALYSIS
“In order to be held liable in negligence, a defendant must have been under a
legal obligation—a duty—to protect the plaintiff from the risk of harm which caused
his injuries.”58 Pressing different legal theories, both Delmarva and Comcast argue
that they were under no such obligation to Mr. Mena Perez. And with no duty owed,
Plaintiffs’ claims against them cannot survive, they contend. The Court addresses
each in turn.
A. Delmarva’s motion
Delmarva’s motion relies, in large part, on the relationship between Delmarva,
Asplundh, and Mr. Mena Perez. The record shows that Delmarva hired Asplundh
to perform vegetation management on the Tree. There is no dispute that Asplundh
was an independent contractor and it employed Mr. Mena Perez. In asserting that a
duty exists, Plaintiffs first rely on Section 343 of the Restatement (Second) of
Torts—referred to as the safe workplace doctrine. Delaware has adopted Section
343,59 which states:
A possessor of land is subject to liability for physical harm caused by
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 discover or realize the
58
Fritz v. Yeager, 790 A.2d 469, 471 (Del. 2002) (citing Bryant v. Delmarva Power & Light Co., 1995 WL 653987, *2 (Del. Super. 1995)).
59
DiOssi v. Maroney, 548 A.2d 1361, 1366 (Del. 1988).
13
danger, or will fail to protect themselves against it, and (c) fails to
exercise reasonable care to protect them against the danger.60
Outside of a Section 343 analysis, Plaintiffs bring Count VI (non-delegable
duty) against Delmarva and point to a number of statutes and regulations they say
require Delmarva to maintain the safety of others and its equipment. Plaintiffs argue
that Delmarva’s failure to comply with the statutes and regulations supports their
theory of liability. Delmarva argues that the claim cannot survive even if the Court
finds a duty based on Section 343.
Under either of Plaintiffs’ theories, Delaware common law has limited the
liability of landowners when employees of independent contractors are hired to work
on the landowner’s property. Delmarva invokes those limitations here.
1. Delmarva owed a duty to keep its premises safe and to warn of
defective conditions.
Delmarva’s argument can be distilled down to one simple theory: Mr. Mena
Perez’s injuries were the result of the very work he was hired to perform. In general,
“an owner or general contractor does not have a duty to protect an independent
contractor’s employees from the hazards of completing the contract.”61 But,
Delaware has long recognized that employees of independent contractors, as
business invitees, are owed a duty by landowners to have the premises on which they
60
Restatement (Second) of Torts § 343.
61
In re Asbestos Litig. (Wenke), 2007 WL 1651964, at *6 (Del. Super. May 31, 2007) (internal quotation marks and citation omitted).
14
work kept in a reasonably safe condition and to be warned of latent defects of which
the landowner knows or has reason to know.62
It logically follows then, that “the possessor of land has no duty to warn an
independent contractor of ordinary dangers incident to the type of work in which he
is engaged and performing on the property.”63 “This limitation is based on the reality
that ‘the contractor possesses superior knowledge of the dangers inherent in the
work’ it was hired to perform.”64 Indeed, Delaware courts have routinely dismissed
cases in which an independent contractor and landowner were equally
knowledgeable of the defective conditions existing on the property because, the
independent contractor was hired to rectify the condition65 or where, by the nature
of their work, the independent contractor created the defective condition.66
But it is also true that “a possessor of land may still be liable for breaching its
duty to independent contractors as business invitees, provided that the possessor and
subcontractor are: (1) not equally knowledgeable of the hazardous condition …; and
62
Seeney v. Dover Country Club Apartments. Inc., 318 A.2d 619, 622 (Del. Super. 1974) (first citing Fahey v. Sayer, 106 A.2d 513 (Del. 1954), and then citing Vorous v. Cochran, 249 A.2d 746, 747 (Del. Super. 1969)).
63
Vorous, 249 A.2d at 747 (citing White v. United States, 97 F.Supp. 12, 14 (N.D. Cal. S.D. 1951)). 64
Ramsey v. Georgia S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1275 (Del. 2018) (quoting Wenke, 2007 WL 1651964, at *6).
65
Vorous, 249 A.2d at 747.
66
Wooleyhan II, 2006 WL 1214980, at *3 (Del. Apr. 12, 2006) (TABLE); Seeney, 318 A.2d at 619; see also O’Connor v. Diamond State Tel. Co., 503 A.2d 661 (Del. Super. 1985). That reasoning is further supported by the general proposition that “if a danger is so apparent that the invitee can reasonably be expected to notice and protect against, the condition itself constitutes an adequate warning.” Niblett v. Pennsylvania R.R. Co., 158 A.2d 580, 582 (Del. Super. 1960).
15
(2) the subcontractor or its employees did not create the hazardous condition.”67
Provided that “the independent contractor employee is ‘injured as a result of the
work (and negligence) of others including, arguably, the landowner[.]’”68
Delmarva’s argument relies on the jurisprudential developments of asbestos
litigation in Delaware. To differentiate between types of plaintiffs, the Delaware
Supreme Court in In re Asbestos Litigation (Wooleyhan II)69 separated them into two
groups—later known as Group A and Group B plaintiffs. The distinction drawn
between the two groups depended upon the nature of the work they performed on
the landowner’s premises.70 Group A consisted of “employees of independent
contractors who did not work directly with asbestos (such as painters or other
tradesmen), but allege[d] they were exposed to asbestos on the defendants’ premises
while working along side of other contractors who were working directly with
asbestos ….”71 Group B plaintiffs were “employees of independent contractors who
worked directly with asbestos while on the defendants’ premises, such as asbestos
installers or asbestos insulators ….”72
The Wooleyhan II court declined to extend Section 343 liability to landowners
in the Group B context. In the court’s words:
67
Harford Mut. Ins. Co. v. Weiner, 2014 WL 4247724, at *5 (Del. Super. July 15, 2014). 68
Ramsey, 189 A.3d at 1275 (quoting Wenke, 2007 WL 1651964, at *10).
69
2006 WL 1214980 (Del. 2006) (TABLE).
70
Id. at *1.
71
Wenke, 2007 WL 1651964, at *1 (identifying Group A plaintiffs).
72
Id. (identifying Group B plaintiffs).
16
If the independent contractor, through its work, causes the condition
that might otherwise give rise to landowner liability under § 343 of the
Restatement, employees of that independent contractor have no basis
to claim that the landowner is liable for injuries resulting from that
condition. In short, to extend landowner liability under § 343 for
conditions caused by the independent contractor whose employees seek
recovery for their injuries from the landowner, finds no support in the
law of Delaware or the policies underlying § 343. Accordingly, the
employees of an independent contractor may not invoke § 343 of the
Restatement to establish landowner liability for injuries caused by
conditions created by their independent contractor-employer.73
As to Group A plaintiffs, the Wooleyhan II court recognized that Section 343
“offered a viable basis upon which a landowner could be held liable to the employee
of an independent contractor for failing to provide a safe work place[.]”74 Taking
the classifications of Group A and Group B plaintiffs together, to proceed under
Section 343, the employee of an independent contractor must be injured by the
negligence of “others,” but employees working for the same independent contractor
are not “others” and thus cannot seek recovery against the landowner on that basis.
As succinctly stated by then-Judge Slights “Wooleyhan II adopted Section 343
in the asbestos context….”75 Thus, Wooleyhan II and its Group A and Group B
framework is an acknowledgment of what the Delaware common law already makes
clear: a landowner is not liable for the injuries of an employee of an independent
contractor resulting from a defective condition on the landowner’s property if the
73
Wooleyhan II, 2006 WL 1214980, at *3 (emphasis added).
74
In re Asbestos Litig. (Helm), 2007 WL 1651968, at * 17 (Del. Super. May 31, 2007). 75
Id. at *18.
17
independent contractor was knowledgeable of the defective condition or if the
independent contractor (including through its employees) caused the defective
condition. Wooleyhan II, and its progeny, provide helpful guidance here.
a. Plaintiffs may pursue the claim that Delmarva negligently
maintained its premises.
Delmarva argues that Mr. Mena Perez is a Group B plaintiff, thus he cannot
assert a claim under Section 343. As an initial matter, Delmarva contends that Mr.
Mena Perez must be a Group B plaintiff because he was not injured by employees
of another independent contractor like Group A plaintiffs in Wooleyhan II. But as
subsequent decisions have made clear, the inquiry does not turn on whether the
employees of independent contractors were injured by other independent
contractors; the gating question is whether the employee-plaintiff was injured by a
defective condition created by his employer. A later asbestos case, In re Asbestos
Litigation (Rath), highlights that difference.76
In Rath, plaintiff was a career union carpenter. For nearly thirty years, he was
repeatedly hired by the same independent contractor to erect and disassemble
scaffolding in chemical and energy facilities throughout Delaware.77 That
independent contractor also hired other employees with whom plaintiff worked.
Among those other employees were those whose work necessarily involved
76
In re Asbestos Litig. (Rath), 2019 WL 1772493 (Del. Super. Apr. 18, 2019). 77
Id. at *1.
18
asbestos.78 Plaintiff brought suit against the chemical and energy facilities;
defendants moved for summary judgment on the basis that they did not owe a duty.79
The Rath court agreed with defendants, reasoning that the independent contractor
that employed plaintiff also employed all other independent contractors that worked
alongside him, including other tradesmen whose work involved asbestos.80 Thus,
plaintiff’s claims “fail[ed] because he allege[ed] exposure as a result of his own
employer’s work with asbestos[,]” not the negligence of others, such as the
landowner.81
The Rath court then proceeded to analyze plaintiff’s allegations of defendants’
negligence in maintaining their facilities, outside the work performed by his
employer. Plaintiff alleged that defendants failed to maintain pipe covering and
insulation, exposing him to asbestos.82 The court found the argument without merit,
not because defendants could not be held liable for their own negligence, but because
plaintiff failed to produce facts that he was exposed to asbestos through the pipe
covering and insulation.83
Outside of the asbestos context, but still within the confines of Section 343,
Delaware caselaw makes clear what Rath suggests—a landowner negligently
78
Id.
79
Id.
80
Id. at *10.
81
Id. (emphasis added).
82
Id.
83
Id. at *10–11.
19
maintaining its property or failing to warn of defective conditions is a viable path to
Section 343 liability for employees of independent contractors.84 That is, merely
because Mr. Mena Perez was not injured by the work of a different independent
contractor does not defeat Plaintiffs’ claim as Plaintiffs assert that Delmarva itself
was negligent. To support that allegation, Plaintiffs point to Delmarva’s knowledge
that the Tree had previously contacted its electrical lines causing sparks and arcing,
its failure to conduct vegetation management of the Tree, its failure to inspect the
poles holding its lines, and a failure to inspect the lines themselves. Doing so,
according to Plaintiffs, would have revealed the defective conditions that later
caused Mr. Mena Perez’s injuries. Evidence of those defective conditions, unlike in
Rath, is supported by photographs, testimony, and expert opinions.85
b. Mr. Mena Perez’s injuries did not solely result from the
dangers inherent in his work.
Delmarva’s primary contention is that Mr. Mena Perez’s injuries were a result
of the work he was hired to perform. As discussed, the duties owed to independent
contractors, as business invitees, “are not imposed upon the possessor of land where
the contractor and the possessor are equally knowledgeable of the defective
84
See Harford Mut. Ins. Co., 2014 WL 4247724, at *5; see also Morris v. Hitchens, 1993 WL 138690, at *2–3 (Del. Super. Mar. 18, 1993).
85
Delmarva also points to Urena v. Capano Homes, Inc., 901 A.2d 145 (Del. Super. 2006). That case has no application here because it did not involve allegations of the landowner negligently maintaining its premises or failing to warn its business invitees of defective conditions.
20
conditions existing on the property[.]”86 And, as a result of their superior knowledge
of the dangers inherent in their work, independent contractor employees have no
cause of action under Section 343 if they are injured by the very hazards of the work
they were contracted to perform.87
Delmarva argues that it hired Asplundh because of its expertise in trimming
trees surrounding power lines. Asplundh, through this expertise, understands then
that there is an inherent danger in its work given its proximity to electrical lines—
electrocution. Plaintiffs do not contest Delmarva’s characterization of Asplundh as
an expert in vegetation management around electrical lines, instead they argue that
Asplundh’s expertise does not absolve Delmarva of its duty to warn of other latent
defects about which Delmarva knew or should have known. Put another way,
Plaintiffs point to other defects beyond just the overgrowth of the Tree (the defect
Asplundh was hired to rectify) that they argue constituted hazardous defective
conditions. This differs from what the Wooleyhan II court confronted. There, Group
B plaintiffs could not pursue recovery because they worked “directly with
asbestos”—asbestos exposure was the nature of their job.
Vorous v. Cochran provides further guidance. In Vorous, landowners hired a
tree surgeon to “trim and top” two trees that were decayed and damaged. While
86
Seeney, 318 A.2d at 623.
87
Ramsey, 189 A.3d at 1275; Vorous, 249 A.2d at 747.
21
climbing one of the trees, the tree surgeon put a support rope around one of its dead
limbs, the limb snapped causing the tree surgeon to fall and sustain injuries. The
tree surgeon brought a claim against the landowners, asserting they breached their
duty to keep him safe from defective conditions on their property. The court
disagreed. Reasoning that “the independent contractor’s agreement to remove or
repair the defective condition precludes his recovery from the possessor for injuries
sustained as a result of the defective condition on the theory that he assumed the risk
by virtue of his employment contract.”88 And because the landowners “hired the
[tree surgeon] for the express purpose of removing the decayed or dead appendages
of two trees on their property, which constituted a dangerous condition … [t]he [tree
surgeon] was thus adequately warned of the defective condition.”89
The principle underlying both Vorous and Group B plaintiff’s claims in
Wooleyhan II is that the independent contractor who undertakes to work with a
defective condition on a landowner’s property, who is injured by that same defective
condition, cannot hold a landowner liable for that injury. That makes sense given
an independent contractor’s expertise, which a landowner can expect the
independent contractor to utilize to safely encounter or maneuver around the
defective condition. But that logic does not apply where an independent contractor,
88
Vorous, 249 A.2d at 747.
89
Id.
22
who undertook to remedy a defective condition, is injured by other defective
conditions of which the landowner failed to notify the independent contractor. A
landowner cannot escape liability based on a theory of independent contractor
omniscience. And one who is not knowledgeable about a defective condition cannot
be expected to utilize his expertise to safely encounter it.
Here, Asplundh was hired to trim overgrowth of the Tree near electrical lines.
Asplundh was undoubtedly aware of that defective condition and the risks it posed.
But nothing in the record suggests that Asplundh/Mr. Mena Perez was aware of the
numerous other conditions Plaintiffs argue were a cause of Mr. Mena Perez’s
injuries. While Delmarva stresses that electrical shock is a danger inherent in the
work of vegetation management near electrical lines, Delmarva’s argument ignores
the rationale behind the limitation on liability: “that ‘the contractor possesses
superior knowledge of the dangers inherent in the work’ it was hired to perform.”90
Asplundh workers, including Mr. Mena Perez, knew that it was going to confront
and rectify tree overgrowth around electrical lines. That is the work they were hired
to perform. That work, however, does not necessarily mean confrontation with
defective electrical lines or defective utility poles creating hazardous conditions in
the same manner that asbestos exposure is inherent in the work of an asbestos
insulator or removing dead tree limbs is inherent in the work of a tree surgeon.
90
Ramsey, 189 A.3d at 1275 (quoting Wenke, 2007 WL 1651964, at *6) (emphasis added).
23
If Delmarva informed Asplundh of these defects before Mr. Mena Perez began
his work, Delmarva’s argument that it is entitled to rely on Asplundh’s expertise
may have merit and that might require the result Delmarva seeks. But Delmarva did
not inform Asplundh of those defects and the evidence in the record supports a
finding that those defects caused Mr. Mena Perez’s injuries.91
2. Plaintiffs’ reliance upon statutes and regulations does not support a
non-delegable duty claim.
Turning next to Delmarva’s attack on Count VI, which relies on a number of
statutes and regulations to assert that Delmarva’s failure to comply with them
supports liability. Plaintiffs argue that these statutes and regulations form the basis
of a non-delegable duty. The Court, as explained above, has already found a duty at
law exists as to Delmarva. And as Delmarva recognizes, “the litany of statutes,
91
In its reply brief Delmarva raises for the first time the argument that even if Mr. Mena Perez is a Group A plaintiff, Plaintiffs’ claim independently fails under a test adopted in Helm—a Delaware asbestos litigation case, relying on a California asbestos litigation case, Kinsman v. Unocal Corporation, 123 P.3d 931 (Cal. 2005). That test triggers six distinct inquiries, Delmarva points to three:
“Did the independent contractor, or should it have known, that the particular
materials on the premises that allegedly cause the plaintiff’s injury contained
asbestos; If so, was the independent contractor aware at the time, or should it have
been aware at the time, of the dangers of asbestos; and did the facility owner know,
or should it have known, that the independent contractor was unaware of, or could
not have reasonably learned about, the hazard posed by asbestos containing
materials.”
Helm, 2007 WL 1651968, at *18–19 (cleaned up). As shown by the language of that test, it concerns the defective condition of asbestos. Delmarva replaces asbestos with “energized line” in its argument. As the Helm court made clear, this test is used “in the asbestos context”—this is not an asbestos case. In any event, Delmarva’s argument misses the mark. The defective condition is not an energized line, it is the condition of that line in combination with other defective conditions on the property on which Plaintiffs rely.
24
regulations, and standards cited [by …] Plaintiffs’ … might inform the standard of
care if a duty were found to exist[.]” Still, Delmarva argues that Count VI cannot
survive its motion because of Mr. Mena Perez’s status as an employee of an
independent contractor.
Count VI implicates Section 409 of the Restatement (Second) of Torts and its
related exceptions.92 Section 409 states, in part: “the employer of an independent
contractor is not liable for the physical harm caused to another by an act or omission
of the contractor or his servants.”93 Section 424, an exception to Section 409’s
general prohibition against landowner liability to harms caused during the work of
its hired independent contractors, imposes liability for statutory and regulatory nondelegable duties. It provides:
One who by statute or by administrative regulation is under a duty to
provide specified safeguards or precautions for the safety of others is
subject to liability to the others for whose protection the duty is imposed
for harm caused by the failure of a contractor employed by him to
provide such safeguards or precautions.94
A Comment to Section 424 adds:
The rule stated in this Section applies whenever a statute or
administrative regulation imposes a duty upon one doing particular
work to provide safeguard or precautions for the safety of others. In
92
Restatement (Second) of Torts § 409 (“Except as stated in §§ 410–429, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.”).
93
Restatement (Second) of Torts § 409.
94
Restatement (Second) of Torts § 424 (emphasis added).
25
such a case the employer cannot delegate his duty to provide such
safeguards or precautions to an independent contractor.95
Delmarva argues that Mr. Mena Perez, as an employee of an independent
contractor, does not qualify as “others” and thus, Plaintiffs cannot invoke Section
424’s statutory and regulatory duties. Delaware decisions have consistently held
that the term “another” as found in Section 409 and “others,” as they are used in the
exceptions to Section 409, does not include employees of the independent
contractor.96 Rather, the exceptions to Section 409 “provide[] a remedy for harm
caused to third persons by contractors or their employees.”97 The Court, however,
need not decide whether those decisions extend to Section 424 because, the statutes
and regulations Plaintiffs rely upon do not “impose a duty upon one doing particular
work to provide safeguards or precautions for the safety of others.” As discussed
below, these statutes and regulations simply do not include specific safeguards and
precautions for one engaged in vegetation management while trimming trees around
electrical lines.98
95
Restatement (Second) of Torts § 424 cmt. a (emphasis added). The Restatement further provides an example, such as, a statute that mandates “an excavation site shall be lighted at night[.]” Restatement (Second) of Torts § 424 cmt. b.
96
In re Asbestos Litig. (Roca), 2002 WL 31007993, at *2 (Del. Super. Sept. 3, 2002); Urena, 901 A.2d at 154.
97
Roca, 2002 WL 31007993, at *2 (emphasis added).
98
See Romer v. Mobil Exploration and Producing N. Am., Inc., 939 F.2d 307, 309 (5th Cir. 1991) (Finding Section 424 inapplicable to claims brought under Mineral Management Service regulations because they “were not created solely to provide safeguards or precautions for the safety of others”).
26
Plaintiffs first rely on Title 26 of the Delaware Administrative Code, Section
3007. Paragraph 3.1 of that section states: “Each EDC shall install, operate and
maintain its delivery facilities in conformity with the requirements of [the NESC.]”99
Under paragraph 5.1: “Each EDC shall have an inspection and maintenance program
designed to maintain delivery facilities performance at an acceptable level. The
program shall be based on industry codes, national electric industry practices,
manufacturer’s recommendations, sound engineering judgement, NESC Rule 214
guidance, and past experience.”100 Paragraph 5.2 requires “[E]ach EDC [to] inspect
all right-of-way vegetation at least once every four (4) years and trim or maintain as
necessary[.]”101 But those obligations to maintain its equipment and perform
vegetation management under the Delaware Administrative Code do not discuss
“safeguards or precautions” to be utilized while the work of maintaining equipment
or managing vegetation is underway.
Plaintiffs next rely on their experts’ opinions. For example, Plaintiffs’ expert
H. Landis Floyd opines that the National Fire Protection Association “emphasizes
de-energization of electrical lines when performing work on or near uninsulated or
unguarded conductors.”102 But that language does not contain a requirement that
99
26 Del. Admin. C. § 3007.
100
Id.
101
Id.
102
D.I. 504 at 3.
27
one performing vegetation management must do so. He further opines that
“[Delmarva] should have required Asplundh to use an insulated bucket truck, live
line insulated tools, and voltage rated protective equipment to perform tree trimming
tasks but did not.”103 Mr. Floyd, however, points to no regulation or statute that
requires such use.
Additionally, Plaintiffs point to several regulations found within OSHA and
the American National Standards Institute. While those regulations impose
requirements designed to protect the safety of workers, there is no indication that
they impose a regulatory non-delegable duty enforceable against a landowner who
hired an independent contractor.104
This is not to say that the statutes and regulations are not relevant in this case.
Indeed, statutes and regulations, such as those relied upon by Plaintiffs, may be used
to establish a defendant’s negligence. Accordingly, the Court’s ruling on Count VI
is limited to the finding that the statutes and regulations relied upon do not explicitly
direct the use of specified safeguards and precautions in the performance of
vegetation management.
103
Id. at 4.
104
See Toll Bros., Inc. v. Considine, 706 A.2d 493, 497 (Del. 1998) (“[T]he OSHA statute itself includes a disclaimer that federal regulations, standing alone, do not enlarge state common law rights, duties or liabilities[.]”) (cleaned up); see also Abbate v. Warner, 2012 WL 1413524, at *2 (Del. Super. Jan. 19, 2012) (“The ANSI standard certainly is not a legislative enactment or regulation[.]”).
28
Because Count VI asserts a claim based on non-delegable duties that do not
exist, Delmarva’s Motion for Summary Judgment on this count is GRANTED.
However, as to all other claims against Delmarva, Delmarva had a duty a keep the
premises safe and warn its business invitees of defective conditions on its property.
Accordingly, as to Plaintiffs’ other claims, Delmarva’s Motion for Summary
Judgment is DENIED.
B. Comcast’s motion
Comcast’s motion stresses the relationship between itself and Mr. Mena
Perez, or rather, the lack thereof. Comcast’s argument is based on it and Mr. Mena
Perez being “legal strangers” and without a legally cognizable relationship between
them, Comcast owed no duty to him. Comcast further argues that its equipment did
not cause Mr. Mena Perez’s injuries, so there can be no claim that Comcast failed to
maintain its equipment.105
Under Delaware law, “duty derives from the relationship between the parties
and the foreseeable risk of harm that is implicated by the relationship.”106 Thus, the
court must determine “whether ‘such a relationship exists between the parties that
the community will impose a legal obligation upon one for the benefit of the
105
D.I. 429 at 7; D.I. 522 at 1.
106
Kuczynski v. McLaughlin, 835 A.2d 150, 155 (Del. Super. 2003).
29
other….’”107 When making that determination, the court must “study the
relationship between the parties and then [] determine, based upon statutory and/or
common law principles, whether the relationship is of a nature or character that the
law will impose a duty upon one party to act for the benefit of another.”108
Comcast argues that it did not owe Mr. Mena Perez a duty because “Comcast
did not employ, train, equip, supervise or otherwise interact with [Mr. Mena Perez].”
Nor did Comcast contract with Asplundh to perform vegetation management or own
the utility poles. Finally, Comcast asserts that its relationship with Mr. Mena Perez
is further attenuated by the fact that its easement did not extend beyond its own
equipment.
Plaintiffs rely on Title 26 of the Delaware Code, chapter 1, subchapter VI
titled “Regulation of Cable Television Systems.” Specifically, 26 Del. C. §§ 601
and 604. Section 601 requires cable television operators to first be granted a
franchise by the Public Service Commission.109 The terms of a franchise are set
forth in Section 604 and lists requirements for a franchisee. Section 604(11) states
“a requirement that the franchisee install and maintain all cables, wires, fixtures and
other equipment or facilities in accordance with the [NESC] ….”110
107
Naidu v. Laird, 539 A.2d 1064, 1070 (Del. 1988) (quoting W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser & Keeton on Torts § 37, at 236 (5th ed. 1984)).
108
Higgins v. Walls, 901 A.2d 122, 136 (Del. Super. 2005).
109
26 Del. C. § 601.
110
26 Del. C. § 604(11).
30
NESC Rule 200 states that “[t]he purpose…of this Code is the practical
safeguarding of persons during the installation, operation, or maintenance of
overhead supply and communication lines and their associated equipment.”111
NESC Rule 218, titled “Vegetation Management” states that “[v]egetation
management should be performed around supply and communication lines as
experience has shown to be necessary. Vegetation that may damage ungrounded
supply conductors should be pruned or removed.”112
As a cable television provider, Comcast is a franchisee under Delaware law.
And, as Comcast recognizes, the NESC standards apply to it.113 While Comcast is
correct that the NESC does not carry the force of law, the Delaware Code obviously
does. Section 604(11) is clear, Comcast must maintain all cables, wires, fixtures and
other equipment or facilities in accordance with the NESC. And the NESC requires
Comcast to maintain the vegetation surrounding its cables, for the purpose of
“safeguarding of persons” while they are conducting “maintenance of overhead
supply and communication lines.” Mr. Mena Perez was such a person, thus
Comcast’s argument that it was a legal stranger to Mr. Mena Perez fails to win it
summary judgment. It owed a duty to him.
111
NESC R. 200.
112
NESC R. 218.
113
D.I. 503, Ex. C ¶ 6 (Comcast admitting the NESC applies to it).
31
Comcast’s arguments to the contrary are unavailing. Comcast first points to
Delaware Electric Cooperative, Inc. v. Duphily114 for the proposition that the
Delaware Supreme Court has confirmed that cable television companies are
regulated by the Public Service Commission, “but [are] not a ‘public utility[]’” under
Delaware Code Title 26, Section 102(2)(4).115 But Delaware Electric goes on to
state what this ruling has already recognized, that cable television companies like
Comcast are regulated under 26 Del. C. §§ 601 and 604.116
In its reply, Comcast acknowledges that Section 601 requires it, through its
franchise, to maintain its equipment in accordance with the NESC, but asserts that
this obviously only means “overhead clearance and attachment guidelines, not
vegetation management.”117 But there is no basis to limit the applicability of the
NESC, as Comcast urges the Court to adopt. Indeed, Rule 218 directly addresses
vegetation management.
Comcast next points to 26 Delaware Administrative Code Section 3007, in
which the Delaware Public Service Commission sets forth reliability standards for
EDCs. Among those reliability standards is a requirement for EDCs to “inspect all
right-of-way vegetation at least once every four years and trim or maintain as
114
703 A.2d 1202, 1209 (Del. 1997).
115
Id. at 1209 n.8.
116
Id.
117
D.I. 522 at 3.
32
necessary[.]”118 Comcast acknowledges that Delaware regulations require EDCs to
perform vegetation management, but notes that it is not an EDC. Comcast argues
that because the Delaware Public Service Commission did not adopt regulations
requiring cable companies to perform vegetation management, it has no duty to do
so.
Comcast is correct that it is not an EDC. But simply because EDCs are also
required to engage in vegetation management does not relieve Comcast from the
duties imposed by the Delaware Code and the NESC makes clear: “vegetation
management should be done around…communication cables.”
Comcast’s final argument is that the NESC does not specifically identify what
entity should perform vegetation management, suggesting that without a specific
identification, only EDCs have such a duty. But as explained, Sections 601 and 604
regulate cable television companies and set out the requirements for franchisees.
Section 604(11) mandates communication companies—as franchisees—to comply
with the NESC. Thus, the alleged gap caused by the absence of a specific
identification of which entity is tasked with performing vegetation management is
filled because the requirement to comply with the NESC appears in the Delaware
Code’s “Regulation of Cable Television Systems.”
118
26 Del. Admin. C. § 3007–5.0.
33
In Sum, because the Delaware Code’s regulation of cable television systems
requires compliance with the NESC, which requires vegetation management of cable
communication lines for the protection of those performing maintenance on
overhead supply lines, Comcast owed a duty to Mr. Mena Perez.
That Mr. Mena Perez was not injured by the Comcast communication lines
does not entitle it to summary judgment. Plaintiffs’ theory is that had Comcast
complied with its duty to maintain the vegetation around its communication lines,
the Tree would not have been in the condition it was on August 2, 2018. Disputes
of material fact preclude summary judgment.
Comcast’s Motion for Summary Judgment is DENIED.
VI. CONCLUSION
Delmarva moves for summary judgment, arguing that as a matter of law
Plaintiffs’ claim cannot survive because it hired Asplundh to trim the Tree around
Delmarva’s electrical lines. While the nature of the relationship between Delmarva
and Mr. Mena Perez (through Asplundh) insulates Delmarva from some of
Plaintiffs’ theories of liability, it does not preclude Plaintiffs’ theories based on other
defective conditions.
Delmarva also moves for summary judgment as a matter of law that it did not
owe Mr. Mena Perez a non-delegable duty. Because Plaintiffs do not rely on any
statute or regulation specifically requiring actions for the safety of workers trimming
34
trees near an electrical line, Delmarva’s motion must be granted. Accordingly,
Delmarva’s Motion for Summary Judgment is GRANTED in part and DENIED in
part.
Comcast similarly moves for summary judgment as a matter of law, asserting
it owed Mr. Mena Perez no legal duty. The Delaware Code, however, imposes a
duty on cable companies, like Comcast, to maintain their lines in accordance with
the NSEC, which specifically requires vegetation management. Accordingly,
Comcast’s Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
/s/Kathleen M. Miller
Kathleen M. Miller, Judge
35