IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DANIELLE TETTEH, Individually
and as Administrator of the Estate
of DANIEL L. JONES, deceased,
Plaintiff,
V. C.A. No. N14C-08-023 ASB
ALCATEL-LUCENT USA, INC.,
et al.,
Defendants.
MEMOR`ANDUM OPINION AND ORDER
Submitted: August 25, 2016
Decided: August 31, 2016
Upon Considemtion ofDefena’ant’s Motionfor
Summary Judgment, GRANTED.
Beverly L. Bove, Esquire, LaW Offlce of Beverly L. Bove, Wilmington, Delaware,
and Jackalyn A. Olinger, Esquire, Maune, Raichle, Hartley, French & Mudd LLC,
St. Louis, MO. Attorneysfor Plaintijj%.
John C. Phillips, Jr., Esquire, Phillips, Goldman & Spence, P.A., Wilmington,
Delaware. Attorneyfor Defendant.
MEDINILLA, J.
INTRODUCTION
Daniel Jones Was an employee of Western Electric Company. Defendant
AT&T Corp. is the former corporate parent of Western Electric Company.
Plaintiff Danielle Tetteh, individually and as administrator of the Estate of Daniel
Jones, seeks to hold AT&T liable under the Restatement (Second) of Torts,
§ 324A, for Daniel Jones’ alleged asbestos-related Work injury. AT&T moves for
summary judgment. Having considered all pleadings and lengthy oral arguments
heard on August 25, 2016, for the reasons stated below, Defendant’s Motion for
Summary Judgment is GRANTED.
FACTS AND PROCEDURAL BACKGROUND
Daniel Jones (“Jones”) Was employed by Western Electric Company
(“WECO”) from approximately 1973 to 1989, at WECO’s Norcross, Georgia,
cable and Wiring manufacturing plant.l During the relevant time period, WECO
Was a Wholly-owned subsidiary of Defendant AT&T Corp. (“AT&T” or
“Defendant”).Z WECO manufactured and/or supplied the equipment used by the
local Bell Operating Companies and AT&T’s Long Lines division to provide
' Daniel Jones’ Social Security Admin. Earnings Record Info. at 6, EX. 3 to Pl.’s Am. Mem.
Opp’n.
2 Ralph V. Collipi, Jr.’s Aug. 24, 2015 Aff. 1[ 3, Ex. l to Def.’s Mot. Summ. J.
telephone service throughout the United States, and was among the nation’s largest
manufacturing companies3
There is no evidence that J ones was at any time supervised by or reported to
any AT&T personnel. WECO had its own Safety and Medical Departments,
which coordinated WECO’s occupational health program and employed hundreds
of safety personnel;4 this included dozens of industrial hygienists that reported to a
Director of Industrial Hygiene.5 In contrast, AT&T’s Safety Department consisted
of two people, neither of whom was an industrial hygienist.6 At all relevant times,
WECO was, and viewed itself as, responsible for the workplace safety of its own
employees and implementation of its safety program, and did not delegate or
surrender that responsibility to AT&T, its corporate parent.7
Notably, WECO’s Medical Department “published policy guidelines that
required local evaluation and implementation by the health and safety
professionals at each Western Electric manufacturing plant.”8 While AT&T
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provided safety-related recommendations and guidance to its subsidiaries, AT&T
did not operate its subsidiaries’ businesses or supplant their safety programs
While employed by WECO, Jones Worked in the Stranders, Final Test,
Scrapers, and Tool Cleaning departments, and drove a forklift. Jones allegedly
inhaled, ingested and otherwise absorbed asbestos-containing fibers emanating
from various products, including fiber optic cables, switches, insulation, sheathing,
Wiring, lathes, asbestos cloth, floor tile, pipe insulation, talc and pulp.9 Jones also
used “heat gloves” When cleaning tools at WECO’s Norcross plant.10
Jones Was diagnosed With mesothelioma He received benefits pursuant to
Georgia’s Worker’s Compensation statute. Jones died on August 18, 2012.ll
Plaintiff Danielle Tetteh (“Plaintiff’), individually and as administrator of
the Estate of Daniel Jones, filed a Complaint on August 4, 2014. She seeks to hold
AT&T liable under the Restatement (Second) of Torts, § 324A, for Jones’ Work-
place injury, allegedly caused by exposure to asbestos.12 Specifically, Plaintiff
alleges that AT&T undertook to provide services to WECO and negligently
9 Compl. 11 3(a).
10 Larry K. Walker’s Apr. 22, 2015 Dep. at ll7:6-l7, EX. 4 to Pl.’s Am. Mem. Opp’n.
ll Compl. 11 8.
‘2 ld. 11 50.
performed those services, thereby causing Jones to develop mesothelioma.]3
AT&T argues there is no basis under Georgia law to support this legal theory.
AT&T filed their Motion for Summary Judgment and Memorandum in
Support Thereof` approximately one year ago, on August 27, 2015. Plaintif`f"s
Memorandum in Opposition Was filed on September 18, 2015, and an amended
version Was filed on September 21, 2015. AT&T’s Reply Was filed on October 12,
2015. AT&T’s motion Was originally scheduled to be heard in March 2016. Both
parties admitted responsibility for the various continuances that have occurred in
the last year.
Oral arguments on AT&T’s motion Were heard on August 25, 2016. At oral
arguments, Plaintif`f` requested an extension of the discovery deadline in order to
have more time to take the deposition of` a Witness.14 The Court denied Plaintif`f"s
request. After the Court also indicated it Would not be ruling from the bench,
AT&T expressed some concern With time constraints, as the case is currently
scheduled With the October 2016 trial group. AT&T therefore sought to move the
trial date, Which Plaintiff` opposed. The Court denied AT&T’s request.
Accordingly, the matter is ripe for review.
'3 Id. 1111 44-72.
14 Def`endant’s Motion for Summary Judgment and Memorandum in Support Thereof Was filed
August 27, 2015. Until oral arguments on August 25, 2016, no request Was made by Plaintiff’s
counsel to address any discovery issues, nor did counsel provide anything to this Court to
address any failure on the part of AT&T to make Witnesses available for depositions
STANDARD OF REVIEW
Superior Court Civil Rule 56 mandates the granting of summary judgment
upon a showing by the movant that “there is no genuine issues as to any material
fact and that the moving party is entitled to judgment as a matter of laW.” 15 “Once
the movant meets its burden, then the burden shifts to the non-movant to
demonstrate sufficiently an existence of one or more genuine issues of material
fact.”16 Summary judgment Will not be granted if there is a material fact in dispute
or if “it seems desirable to inquire thoroughly into [the facts] in order to clarify the
application of the law to the circumstances.”17 In considering the motion, “[a]ll
facts and reasonable inferences must be considered in a light most favorable to the
sslS
non-moving party. However, courts should not “indulge in speculation and
conjecture; a motion for summary judgment is decided on the record presented and
not on evidence potentially possible.”19
‘5 super. ct. Civ. R. 56(e).
16 Quality Elec. Co., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488 (Del. 1995). See also
Moore v. Sl`zemore, 405 A.2d 679, 681 (Del. 1979); Super. Ct. Civ. R. 56(e).
" Ebersole v‘ Lowengmb, 180 A.zd 467, 470 (Del. 1962).
‘8 Nun v. A. C. & S. Co., lnc., 517 A.2d 690, 692 (Del. super 1986).
'9 In re Asbestos Litz`g., 509 A.2d 1116, 1118 (Del. Super. 1986) ajj"a' sub nom. Nl`colet, Inc. v.
Nutt, 525 A.Zd 146 (Del. 1987).
ANALYSIS
The parties agree that Georgia law controls. Both sides also agree that there
is little Georgia case law that addresses the application of § 324A of the
Restatement (Second) of Torts as alleged here_-i.e., whether a parent corporation
assumed the duties that its subsidiary owed to the subsidiary’s employees and then
negligently breached/performed those duties. While it is unclear if Plaintiff’s
motive here is to circumvent the exclusive remedy bar under Georgia’s Worker’s
Compensation statutory scheme, the question before this Court is whether § 324A
can be used to impose a new duty on a parent company. Especially where there is
no precedent under Georgia law to support Plaintiff’s theory, and on this record,
the answer must be no.
“The existence of a legal duty is a question of law for the court.”zo The issue
is therefore appropriately considered at the summary judgment stage.21 Plaintiff
argues that § 324A_Liability to Third Person for Negligent Performance of
Undertaking_applies to the facts of this case. This Court disagrees
20 Garner And Glover Co. v. Barrett, 738 S.E.Zd 721, 723 (Ga. Ct. App. 2013) (quoting Rasm`ck
v. Krishna Hosp., Inc., 713 S.E.2d 835, 837 (Ga. 2011)).
21 See Rasm'ck, 713 S.E.Zd 835 (affirming summary judgment ruling that no duty existed). See
also Garner And Glover Co., 738 S.E.Zd 721 (reversing denial of summary judgment regarding
assumption of duty); Hya'e v. Schlotzsky's, Inc., 561 S.E.Zd 876 (Ga. Ct. App. 2002) (afflrming
summary judgment ruling that no duty was assumed).
The Restatement (Second) of Torts, § 324A has been adopted in Georgia22
and provides:
One Who undertakes, gratuitously or for consideration, to
render services to another Which he should recognize as
necessary for the protection of a third person or his
things, is subject to liability to the third person for
physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the
risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or
(c) the harm is suffered because of reliance of the other
or the third person upon the undertaking23
“Section 324A of the Restatement Will not support a cause of action based
on the theory that a party Who did not undertake to render services should have
done so.”24 The failure to act is not an undertaking, as asserted by Plaintiff; rather,
there must be an affirmative act.25 Liability is imposed pursuant to § 324A “only
Where a party has in fact undertaken to render services. It does not impose liability
22 Huggins v. Aetna Cas. & Sur. Co., 264 S.E.2d 191, 192 (Ga. 1980) [hereinafter Huggins I].
23 Resratemem (second) Of rods § 324A (1965).
24 Davenport v. Cummins Alabama, lnc., 644 S.E.2d 503, 509 (Ga. Ct. App. 2007). See also
Finley v. Lehman, 463 S.E.Zd 709, 710 (Ga. Ct. App. 1995) (no liability Where defendant did not
“render any services to decedent's employer Which he should have recognized as necessary for
the protection of [decedent].”).
25 Davenpor¢, 644 s.E.zd at 509.
based upon the failure to render services Which should have been undertal