Tetteh v. Alcatel-Lucent USA, Inc.

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 31¢1. 1111 3-4. 414 1111 5_6, 8, 12,18-19. 51¢1. 1116,10,12,18_19. 61¢1. 1119. 71a 1120. 81¢1.117. 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