Opinion
C.A. No. 01C-12-029 ESB.
Submitted: June 28, 2004.
September 9, 2004.
Colin M. Shalk, Esquire, Casarino, Christman Shalk, P.A., Wilmington, DE.
Daniel P. Bennett, Esquire, Heckler Frabizzio, Wilmington, DE.
Daniel Hogan, Esquire, Law Offices of Robert Stutman, P.A. Fort Washington, PA.
Robert J. Leoni, Esquire, Morgan Shelsby Leoni, Newark, DE.
Sean J. Bellew, Esquire, Cozen O'Connor, Wilmington, DE.
William Gericke, Esquire, Cozen O'Connor, Philadelphia, PA.
Jeffrey E. Edelman, Esquire, Hartmann Edelman Eagan LLC, Morristown, NJ.
Dear Counsel:
This is my decision on the motion in limine and motion for summary judgment filed by defendant Bunting Construction Corporation ("Bunting") against plaintiffs Timothy and Eileen Hart, Great American Insurance Company, Paul Woodruff, Max Kampelman, David Walton, the property insurance carrier of R. Carl and Brenda Benna, Richard and Virginia Rettig, John and Susan Eisenbrey, R. Bruce and Linda McLean, William and Rae Brakefield, E. Robert and Patricia Russell, Stanly and Joanne Pearlman, and Richard and Judy Cohen, (the "Plaintiffs"). Bunting's motion in limine and motion for summary judgment are granted for the reasons stated herein.
STATEMENT OF FACTS
R. Bruce and Linda McLean (the "McLeans") contracted with Bunting to construct a single-family home on Lot #3 in The Chancellery (the "Construction Site") in Dewey Beach, Sussex County, Delaware. Bunting started construction of the home on September 1, 2000. A fire originated inside the McLeans' home while it was still under construction on October 30, 2000. The fire destroyed the McLeans' home and other neighboring homes in The Chancellery.
Public sector and private fire investigators determined that the fire originated in the rear of the McLeans' home. Samples were taken from the residence to determine the cause of the fire. It was unanimously determined by all investigators that an unknown trespasser intentionally set the fire using a liquid accelerant. However, the type of liquid accelerant was not determined. The only liquid accelerant found on the construction site after the fire was diesel fuel stored within a tank. The crank handle on the tank was missing and the only object sticking out of the pump was a nub to which the crank handle would be attached. In order to access the fuel to run the lift truck, Bunting personnel would put a pair of vice grips on the nub and spin the vice grips to spin the pump. An investigation revealed that the amount of fuel in the diesel tank was the same amount as thought to be in the tank before the fire. Moreover, the tank suffered only minor heat damage. Neither the tank nor the fuel was consumed by the fire. The type of liquid accelerant was never identified and the arsonist was never discovered or arrested.
Jeffrey Bruce ("Bruce") of Resort Investigations Patrol ("Resort"), two additional defendants in this case, was engaged to patrol The Chancellery, Indian Beach and North Indian Beach on the night of the fire. Bruce was located in The Chancellery prior to the fire until the discovery of the fire. A witness by the name of David Freeman ("Freeman") was the first person to discover the fire. Freeman spotted Bruce in his car parked by a stop sign approximately 20 to 25 yards from the burning house.
Patrick McGinley ("McGinley") was engaged by the law firm of Cozen O'Connor to perform a fire investigation. McGinley visited the Construction Site on November 1, 2000, and took photographs of the site. McGinley also determined that the fire originated in the rear of the building. McGinley opined that a flame ignited a light combustible which in turn ignited a liquid accelerant. However, McGinley was unable to identify the type of liquid accelerant used.
McGinley later prepared a report on June 3, 2002 based on the deposition testimonies of Joseph Kansak and Janet Kansak of Resort, Bruce, Freeman, Deputy State Fire Marshal McMillian, Chief W. Blizzard and the entire fire marshal's investigation. McGinley concluded that Bruce, the security guard, should have seen the fire during its incipient stage, and that the initiation and significant development of the fire was a result of Bruce's negligent behavior in sitting close to the structure while being totally unaware of the criminal act and damage that was taking place.
McGinley prepared another report on March 18, 2004 where he concluded that although the diesel fuel tank was stored too close to the building, it did not catch on fire and the tank did not contribute to the fire. However, McGinely further concluded that the perpetrator of the fire most likely used materials found on the Construction Site to set the fire and accelerate its development. In McGinley's opinion, it was possible for the arsonist to obtain the liquid accelerant from the onsite diesel fuel tank. McGinley concluded that the ready availability of the fuel onsite, and the lack of idenitification of another type of fuel being used, makes it highly probable that the arsonist used diesel fuel from Bunting's tank to intentionally set the fire.
DISCUSSION
Bunting sets forth two arguments in it's motion in limine. First, Bunting claims that McGinley is not qualified to offer an opinion that anything that Bunting did caused or contributed to the fire at the Construction Site. Second, Bunting argues that there is no evidence that it was negligent, or if it was negligent, that it's alleged negligence was the proximate cause of the fire and damages sustained by the Plaintiffs. Therefore, Bunting argues that summary judgment is appropriate.
A. Motion in Limine
1. Admissibility of expert testimony
Delaware Rule of Evidence 702 governs the admissibility of expert witness testimony. To be admissible, expert testimony must be both relevant and reliable. DRE 702 is identical to its federal counterpart and the Delaware Supreme Court has adopted the United States Supreme Court's holdings in Daubert v. Merrel Dow Pharm., Inc., 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 562 U.S. 137 (1999) "as the correct interpretation of Delaware Rule of Evidence 702." As the proponent of the proffered expert testimony, the Plaintiffs bear "the burden of establishing relevance, reliability, and admissibility by a preponderance of the evidence." Therefore, the Court must analyze the proffered testimony in light of the following five factors before an expert may testify:
1. The witness is qualified as an expert by knowledge, skill, experience, training or education;
2. The evidence offered is otherwise admissible, relevant and reliable;
3. The expert's opinion is based upon information "reasonably relied upon by experts in the particular field;"
4. The specialized knowledge being offered "will assist the trier of fact to understand the evidence or to determine a fact in issue. . . ."
5. The expert testimony will not create unfair prejudice, confuse the issues or mislead the jury.
Del. R. Evid. 702 provides: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. . . ."
State v. Jones, 2003 WL 21519842, at *2 (Del.Super.Ct.), citing M.G. Bancorporation, Inc. v. LeBeau, 737 A.2d 513, 522 (Del. 1999).
Minner v. American Mort. Guar. Co., 791 A.2d 826, 843 (Del.Super.Ct. 2000).
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-594 (1993); Nelson v. State, 628 A.2d 69, 75 (Del. 1993); New Haverford Partnership v. Stroot, 772 A.2d 192, 799 (Del. 2001).
An additional consideration to be made is "whether expert testimony proffered in the case is sufficiently tied to the facts of the case that will aid a jury in resolving a factual dispute." It is well established that "[u]nder Daubert, Kumho Tire and M.G. Bancorporation, the Trial Judge acts as the gatekeeper to ensure that scientific testimony is not only relevant but reliable." Moreover, the "Trial Judge must play an active role in ruling on the admissibility of evidence."
2. McGinley is not qualified to opine that Bunting's actions caused or contributed to the fire.
Mason v. Rizzi, 843 A.2d 695 (Table), 2004 WL 439690 (Del.Supr.).
Minner, 791 A.2d at 843, citing M.G. Bancorporation, 737 A.2d at 521 (citations omitted).
Id. at 843, citing Patrick C. Barry, Comment, Admissibility of Scientific Evidence in the Remand of Daubert v. Merrell Dow Pharmaceuticals, Inc.: Questioning the Answers, Widener L. Symp. J. 299, 311 (1997).
Bunting is not challenging McGinley's qualifications as a fire expert. Rather, Bunting challenges McGinley's qualifications to testify as to his opinion that Bunting's actions caused or contributed to the fire at the construction site.
a. McGinley's testimony that it is highly probable that the arsonist obtained the accelerant onsite is insufficient under the Daubert and Kumho Tire analysis.
In his March 2004 report, McGinley concluded that it is highly probable that the arsonist obtained the accelerant to ignite the fire onsite, and that the sky tank containing diesel fuel or the onsite diesel fuel tank was most likely the source of the accelerant. However, there is no evidence to suggest that the accelerant used to ignite the fire was taken from either source. In fact, McGinley was unable to identify either the sky tank or the onsite diesel fuel tank as the source of the accelerant. McGinley was only able to opine that it was his general belief that arsonists find their fuel onsite. However, when asked about any studies, reports, information or documentation establishing that arsonists find their accelerant onsite as opposed to bringing it with them, McGinley stated that he did not refer to any book and he is unsure as to whether or not any such statistical evidence exists. McGinley further stated anecdotally that such information appears in virtually every document that discusses construction site fires and that there must be 50 books and literally hundreds of sources in the library. However, McGinley did not refer to any identifiable source.
Before an expert witness is permitted to testify, the testimony must satisfy the factors set forth above. First, the witness must be qualified as an expert by knowledge, skill, experience or education. Bunting argues that McGinley has offered nothing to suggest that he has any particularized knowledge to testify that arsonists generally find the accelerant onsite. The Plaintiffs contend that McGinley's curriculum vitae clearly shows that he has the necessary training and experience to provide him with the requisite knowledge to testify that most arsonists in cases where accelerants are used to start a fire find those accelerants onsite. Although McGinley's curriculum vitae is quite extensive and clearly qualifies him as a fire expert, the Court finds that there is nothing to suggest that he has the requisite knowledge to testify that arsonists generally use accelerants found onsite.
Second, McGinley's opinion must be relevant and reliable. Since McGinley has offered nothing but anecdotal testimony based upon his 40 years of experience, there is no way to determine the reliability of the testimony. McGinley has not relied on any statistical documentation or any other references to base his conclusions. Moreover, the Plaintiffs have failed to establish that McGinley's testimony regarding the typical conduct of an arsonist is even relevant. What happens in most cases is irrelevant. The only relevant consideration is what happened in this case. The Plaintiffs contend that McGinley's training and experience, coupled with the location of the fuel tank, the unsecured hose dispensing assembly for the tank, the occasional trespassers on the property, and the fact that there was no other ignitable liquid on the property, qualify him to render an opinion as to the likelihood of the arsonist's use of the onsite diesel fuel. Despite this argument, there is no evidence to sufficiently tie McGinley's testimony to the facts of this case and render it both reliable and relevant.
The Plaintiffs contend that expert testimony based on circumstantial evidence has long been an accepted method of proving the cause of fire. Moreover, the credibility and weight of an expert's testimony is to be determined by the jury where there is a logical basis for that testimony. Although in fire cases, direct evidence is often destroyed, and experts must often rely on circumstantial evidence to determine the cause of fire, there must be sufficient circumstantial evidence to render an expert's testimony admissible. In fact, "[a] mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the possibilities are at best evenly balanced it becomes the duty of the court to direct a verdict." In the case at bar, there is insufficient circumstantial evidence to support McGinley's conclusions. There is no evidence that the accelerant was identified as diesel fuel, or that the onsite fuel tank was damaged, or that fuel was missing from the tank. Therefore, there is no evidence to even circumstantially link the fuel in the onsite tank to the fire.
See Briedor v. Sears, Roebuck Co., 722 F.2d 1134 (3d Cir. 1983) (permitting expert testimony on the cause and origin of a fire where the expert's theory was supported by some evidence in the record).
Gichner v. Antonio Troiano Tile and Marble Co., 410 F.2d 238 (D.C. Cir. 1969) (expert testimony based on circumstantial evidence of char patterns by a fire investigator with 26 years of employment with the fire department was permitted).
Collins v. American Optometric Assoc., 693 F.2d 636, 640 (7th Cir. 1982), quoting W. Prosser, The Law of Torts 241 (4th ed. 1971).
In fact, the evidence shows that although the tank was located within 20 feet of the building, it was not the cause of fire. The hose dispensing assembly for the tank was unsecured, but it was almost impossible to access the fuel from the tank because the intake pump was locked and the pump itself was broken. Bunting personnel used vice grips to turn the nub on the tank to access the fuel. No similar tool was found on the Construction Site. McGinley stated that it is possible that the arsonist brought the vice grips to the site to access the fuel. However, the Court finds this possibility very unlikely. The Plaintiffs have failed to demonstrate that McGinley's testimony is sufficiently tied to the facts of this case. Therefore, the Court finds that McGinley's testimony is neither relevant, nor reliable.
Third, McGinley's opinion must be based upon information reasonably relied upon by experts in that field. As mentioned above, McGinley did not rely on anything at all, other than his own experience. This is not sufficient. Moreover, even if McGinley based his opinion on statistical data, there is no evidence to sufficiently tie his opinion to the facts of this case. Therefore, McGinley's testimony fails to satisfy both the second and third prongs of the analysis.
Finally, McGinley's testimony must assist the trier of fact, and must not confuse or mislead the jury. Based on the evidence presented thus far, it is clear that McGinley's testimony would do nothing more than confuse or mislead the jury. If the jury were to rely on McGinley's opinion and use it to conclude that most arsonists in fact obtain the accelerant onsite, there would be no evidence to support it's conclusion. Any argument to the contrary is just unpersuasive.
b. McGinley is not qualified to testify that Bunting should have been particularly vigilant on Mischief Night.
The Plaintiffs have failed to present any evidence to suggest that McGinley is qualified to testify that Mischief Night is a problem in Sussex County, Delaware. McGinley based his opinion on his 40 years of fire service, rather than on any independent investigation or research on the subject, and concluded that Mischief Night is a problem around the world. However, there is no evidence to suggest that Mischief Night is a problem in Sussex County, Delaware or that there were any fires as a result of Mischief Night. Obviously, this opinion is not sufficiently tied to the facts of this case and is neither relevant, nor reliable. Moreover, such testimony would only the confuse or mislead the jury.
c. McGinley's testimony as to the security measures that should have been taken by Bunting is insufficient under the Daubert and Kumho Tire analysis.
Initially, McGinley concluded that a primary problem in this case was the failure of the security guard, Bruce, parked in close proximity to the construction site, to have seen the fire in its incipient stages and to have done something either to prevent it or to have caught it at an earlier stage of development. McGinley later concluded that Bunting was at fault. McGinley suggested that two security guards should have been present, or a fence should have been erected around the construction site. However, there is no evidence to suggest that McGinley has any particularized knowledge of security or that he's qualified as an expert in that field based on his knowledge, skill, experience, training or education. McGinley's knowledge of security appears to be limited to guarding the Spectrum, a sports arena in Philadelphia, Pennsylvania, when it was first built many years ago. McGinley has even admitted that he is a not a security expert. During his deposition, McGinley said, "I'm not a security company, I don't proclaim to be a security company, I don't proclaim to be able to design security systems or to enumerate the protection of specific risks." Therefore, it is clear that McGinley is not qualified to testify as to the security measures that should have been taken by Bunting.
App. to Bunting Const. Corp.'s Mot. Ex. E at 106.
d. McGinley's conclusions in regard to the onsite fuel tank are not relevant.
McGinley concluded that Bunting failed to properly label the fuel tank. Although this may be true, there is no evidence to suggest that such testimony would be relevant to the present action. In fact, McGinley himself agreed that there was no connection between the fire and the improperly labeled tank. Therefore, such testimony will not be permitted.
McGinley further concluded that the fuel tank was located only 20 feet from the structure, rather than what he considers to be the appropriate distance of 40 feet. Although the tank did not cause or contribute to the fire of the structure, McGinley assumed that this is evidence of Bunting's general lack of concern. However, McGinley's opinion is irrelevant. There is no evidence to connect any alleged violation by Bunting to the fire. Therefore, McGinley's testimony as to this conclusion will not be permitted.
B. Motion for Summary Judgment
1. Standard of Review
Summary judgment may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of her case, then summary judgment must be granted. If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Super. Ct. Civ. R. 56(3); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp., 477 U.S. 317 (1986).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
It is well established that summary judgment is generally inappropriate for negligence actions. It is rare in a negligence action "because the moving party must demonstrate `not only that there are no conflicts in the factual contentions of the parties but that, also, the only reasonable inferences to be drawn from the uncontested facts are adverse to the plaintiff.'" However, if the Plaintiffs are unable to prove the essential elements of their case against Bunting, then summary judgment is appropriate.
2. The Plaintiffs have failed to establish that Bunting breached any contractual, statutory or common law duty of care which proximately caused injury to the them.
Ebersole, 180 A.2d at 467, 468.
Upshur v. Bodie's Dairy Market, 2003 WL 21999598, at *3 (Del.Super.Ct.), quoting Watson v. Shellhorn Hill, Inc., 221 A.2d 506, 508 (Del. 1966).
See Rayfield v. Power, 2003 Del. LEXIS 586, at *2 (Del.Supr.).
In order to survive Bunting's motion for summary judgment, the Plaintiffs must adequately establish all elements essential to their case that they would have the burden of proving at trial. In order to prevail on their breach of contract claim, the Plaintiffs must show (1) a contractual obligation; (2) a breach of that obligation by Bunting; and (3) a resulting damage to the Plaintiffs. It is well established that in order to prevail in a negligence action, the Plaintiffs must prove by a preponderance of the evidence that Bunting's action breached a duty of care in a way that proximately caused injury to the Plaintiffs.
a. There is no evidence to suggest that Bunting breached any contractual, statutory, or common law duty.
H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 140 (Del. Ch. 2003).
Rayfield, 2003 Del. LEXIS 586, at *1, citing Russell v. K-Mart, 761 A.2d 1, 5 (Del. 2000).
Bunting argues that it neither owed, nor breached any duty of care owed to the Plaintiffs. However, the Plaintiffs argue that the evidence clearly establishes that Bunting owed the Plaintiffs a contractual, statutory and common law duty of care. "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person. . . ." The Plaintiffs allege that Bunting contractually agreed to provide reasonable protection to prevent damage from occurring to property at or adjacent to the Construction Site. The Plaintiffs further contend that by agreeing to incur such a duty, Bunting also voluntarily assumed responsibility for implementing all required safety measures on the Construction Site, thereby triggering it's common law and statutory duties owed to the Plaintiffs to take reasonable measures to ensure safety at the work site. By agreeing to incur this responsibility, the Plaintiffs argue that Bunting also incurred a contractual duty to protect the Plaintiffs' property.
Kuczynski v. McLaughlin, 835 A.2d 150 (Del.Super.Ct. 2003), quoting 57A Am.Jur.2d Negligence § 89 (1989).
Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1092 (Del.Super.Ct. 1994), citing Rabar v. E.I. duPont de Nemours Co., 415 A.2d 499, 505 (Del.Super.Ct. 1980).
First, the Plaintiffs contend that Bunting's contractual duties are specifically expressed in it's construction contract with the McLeans. The contract provides that Bunting will "provide reasonable protection to prevent damage, injury, or loss to:
— Employees on the Work and other persons who may be affected thereby;
— The Work and materials and equipment to be incorporated therein; and
— Other property at the site or adjacent thereto.
Pl.'s Response to Def.'s Mot. Ex. A, Article 16.
Pl.'s Response to Def.'s Mot. Ex. A, Article 16.
Bunting further agreed to comply with "applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons and property and their protection from damage, injury or loss." However, the Plaintiffs have failed to establish that Bunting breached any contractual duty owed to the McLeans and their neighbors. The contract is devoid of any requirement that Bunting provide a particular type of security, such as multiple guards, or even a fence, to ensure the safety of the construction site and neighboring properties. Therefore, the Court finds that there is no evidence that Bunting breached any contractual duty. Consequently, the Plaintiffs' breach of contract claim fails.
Id.
Second, the Plaintiffs claim that Bunting owed a statutory duty to the plaintiffs to provide onsite security. This statutory duty allegedly stems from the Standard for Safeguarding Construction, Alteration, and Demolition Operations set forth by the National Fire Protection Association, Inc. (the "NFPA"). The Plaintiffs allege that Bunting had a statutory duty pursuant to the NFPA to develop "a fire safety program" and to emphasize "[o]nsite security" within such a plan for the "protection of existing structures and equipment from exposure fires resulting from construction, alteration, and demolition operations." However, the Plaintiffs have presented no evidence to indicate that the guidelines set forth by the NFPA have ever been adopted into the Delaware Code, or that Bunting is legally bound to comply with these standards. More importantly, Delaware State Fire Prevention Regulations at 16 Del. C. § 6601 et. seq. do not have such a requirement, and there is no requirement in the contract. Therefore, the Court finds that the Plaintiffs have failed to establish that Bunting owed the Plaintiffs any statutory duty to provide onsite security.
Pl.'s Response to Mot. Ex. D at Ch. 7.1.
Third, the Plaintiffs allege that Bunting breached a common law duty to maintain the Construction Site in a reasonably safe manner so as to protect others from foreseeable events that could endanger their property. "Delaware law measures duties owed in terms of reasonableness. One's duty is to act reasonably, as a reasonably prudent man (or entity) would. One breaches that duty by not protecting against an event that a reasonably prudent man would protect against." Thus, the Plaintiffs contend that Bunting had a reasonable expectation that the Construction Site posed a danger and it should have foreseen that an arsonist would set fire to the building. Therefore, Bunting breached it's common law duty in failing to take reasonable steps to secure the construction site. In support of this contention, the Plaintiffs cite the case of Torrack v. Corpamerica, Inc., 144 A.2d 703 (Del.Super.Ct. 1958). However, the facts of Torrack are clearly distinguishable from the case at bar. The defendant in Torrack owned a building which had fallen into a state of disrepair resulting in the frequent trespass of children and vagrants. Following a complaint, the State Fire Marshall inspected the building and determined that it was a fire menace. Torrack was then put on notice that the building should be taken down immediately. A vagrant later set fire to the defendant's building which spread to the plaintiff's building causing damage to it. The Court stated that it "will not here preclude liability as a matter of law merely because a criminal act took place." Rather, it is for the jury to determine whether the following three elements are present: "(1) the owner negligently maintained a fire hazard, and (2) the possibility of arson or some other criminal act from which fire would result was reasonably foreseeable, and (3) the existence of such fire hazard was a proximate cause of the damage."
Delmarva Power Light Co. v. Burrows, 435 A.2d 716, 718 (Del. 1981).
Torrack, 144 A.2d at 704.
Id.
Id.
Id.
Torrack, 144 A.2d at 705.
Id.
It is well established that the intervening act of a third party will not relieve a tortfeasor of liability if such act ought to be foreseen, or, if, according to the usual experience of mankind, the result ought to have been apprehended. As the Plaintiffs point out, Delaware courts have held that a reasonably foreseeable event can include the criminal actions of a third party. Moreover, "incidents of criminal activity provide a duty to foresee specific criminal conduct." Although issues of the foreseeability of future criminal conduct are generally a matter to be determined by the jury, summary judgment should be granted "if the only conclusion a reasonable juror could make is that the intervening cause . . . were [sic] abnormal, unforeseeable, or extraordinarily negligent." In the present action, the Plaintiffs have failed to present any evidence that it was foreseeable that an arsonist would set fire to the McLean residence. There is no evidence that the Construction Site was a fire hazard, or that the Construction Site or Bunting, or even the McLeans were ever subject to violence. Other than the evidence that children have frequented the site, trespassers have left trash in the dumpster, and an occasional two-by-four was stolen, there is no evidence of vandalism, mischief, or other criminal activity which would have put Bunting on notice that criminal activities, such as arson, could occur onsite.
Sirmans v. Penn, 588 A.2d 1103 (Del. 1991).
See Jardel Co., Inc. v. Hughes, 523 A.2d 518 (Del. 1987).
Jardel Co., Inc., 523 A.2d at 525.
Jayne v. Emory, 2003 WL 21001029, at *3 (Del.Super.Ct.).
Based on the evidence presented, no juror could reasonably conclude that the arson was foreseeable, or that Bunting acted unreasonably when it failed to provide a second security guard, or a security fence. Other than McGinley's opinion, which the Court has determined is inadmissible, there is also no evidence that the arsonist obtained the accelerant onsite. In fact, there is no evidence that diesel fuel was even used to initiate the fire, or that it came from Bunting's onsite tank. Although it is possible to argue that Bunting should have completely secured the onsite fuel tank, there is no evidence that it was accessed by the arsonist or used to initiate the fire. Furthermore, it is highly unlikely that the arsonist accessed the fuel inside the tank because the intake pump was locked, and the pump itself was broken so that the fuel could not be removed from the tank without the proper tools. Therefore, the Plaintiffs have failed to establish all elements of their negligence claim.
b. There is no evidence to suggest that Bunting's conduct proximately caused injury to the Plaintiffs.
Even if the Court were to find that Bunting did in fact breach some duty of care owed to the Plaintiffs, there is no evidence that Bunting's actions proximately caused injury to the Plaintiffs. As discussed above, there is no evidence that the fuel from the diesel tank was even used to initiate the fire, or that it was foreseeable that an arsonist would set fire to the structure, or use fuel from a tank that was almost impossible to access without the proper tools.
It is well established that proximate cause is "one which in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury without which the result would not have occurred." An intervening cause does not break the causal chain of connection unless it is also a superseding cause. In order to qualify as a superseding cause, the criminal act must be "a new and independent act, itself a proximate cause of an injury, which breaks the causal connection between the original tortuous conduct and the injury . . . If . . . the intervening negligence was not reasonably foreseeable, the intervening act supersedes and becomes the sole proximate cause of the plaintiff's injuries, thus relieving the original tortfeasor of liability." Although this is a factual inquiry usually reserved for the jury, "the question of intervening cause should be a question of law only when there can be no difference of opinion as to whether the intervening cause was abnormal, unforeseeable, or extraordinary." Upon a careful review of the record, I am satisfied that no jury could reasonably find that the arsonist's actions in initiating the fire at the Construction Site were reasonably foreseeable events. It is unfortunate that these Plaintiffs have suffered such a substantial loss. However, Bunting cannot be held responsible for the unforeseeable, intentional act of arson committed by an unknown arsonist. Therefore, the Court finds, as a matter of law, that the criminal act of arson was a superseding cause, thereby relieving Bunting of any liability. Since there are no material facts in dispute, and the Plaintiffs have failed to establish all elements of their negligence and breach of contract claims, summary judgment is appropriate.
Duphily, 662 A.2d at 829.
Rutledge v. Wood, 2003 WL 139758 (Del.Super.Ct.), citing Stucker v. American Stores Corp., 171 A.2d 230, 233 (Del. 1934).
Duphily, 662 A.2d at 829 (emphasis in original).
Id. at 831.
CONCLUSION
Bunting's motion in limine and motion for summary judgment are granted for the reasons stated herein.