Opinion
C.A. No. 04C-09-219MJB.
Submitted: November 13, 2007.
Decided: May 22, 2008.
Upon Defendant's Motion for Summary Judgment, GRANTED.
Lois J. Dawson, Esquire, Law Offices of Lois J. Dawson, Wilmington, Delaware, Attorney for Plaintiff, Tony L. Matthews.
Robert J. Leoni, Esquire, Morgan, Shelsby Leoni, Stanton, Delaware, Attorney for Defendant, Pamela S. Booth.
Richard D. Abrams, Esquire, Heckler and Frabrizzio, PA, Wilmington, Delaware, Attorney for Defendant, Food Lion L.L.C.
OPINION AND ORDER
INTRODUCTION
This personal injury action arises out of injuries sustained by Plaintiff, Tony Matthews, when he fell off of the hood of a vehicle driven by Defendant Pamela Booth ("Booth"), who was Plaintiff's co-worker at the time of the accident. Plaintiff filed negligence claims against Booth and negligent supervision/retention claims against Booth's and Plaintiff's employer, Food Lion, L.L.C. ("Food Lion"). On April 19, 2007, this Court denied Food Lion's Motion for Summary Judgment. The Court held that Plaintiff's claim was not barred by Delaware's Workers' Compensation statute and that the factual record was insufficient to determine whether or not Food Lion had knowledge of Booth's alleged propensity to engage in dangerous conduct.
On July 18, 2007, at the call of the civil calendar for the trials scheduled the following week, the Court, sua sponte, determined to reconsider Food Lion's Motion for Summary Judgment. Additional discovery had occurred, and the parties were prepared for trial, and therefore, presumably had deduced any information available as to the issues in dispute. The Court entered a briefing schedule, which required a Supplemental Brief from Food Lion within 30 days, a Response Brief from Plaintiff 30 days thereafter, and a Reply Brief from Food Lion 30 days after Plaintiff's Response. After amending this schedule at Plaintiff's request, the Court received the parties' final submissions. The Court finds that Plaintiff has not presented sufficient evidence to establish, as a matter of law, that Food Lion breached any duty of supervision and for the reasons that follow, the Motion for Summary Judgment is GRANTED.
The impetus behind this decision was the then recent decision of the Delaware Supreme Court in Grabowski v. Mangler, 938 A.2d 637 (Del. 2007). The Court required the parties to brief the issue of what effect the Grabowski decision had on the instant litigation. The parties submit, and the Court accepts, that Grabowski has no direct application to the case at bar. The Court also permitted the parties to brief the Court on any other issues relevant to Food Lion's Motion for Summary Judgment. The Court rests its decision on the issues raised in the parties' submissions, not on the rule announced in Grabowski.
FACTUAL BACKGROUND
The facts, taken in a light most favorable to the non-moving party, are as follows. At the time of the incident, Plaintiff was eighteen years old and was an employee of Food Lion under the direct supervision of Booth, who was the night manager of the store. Plaintiff would socialize with Booth at least once or twice a week after work, along with a group of other co-workers. It is alleged that Booth had a relationship with at least one young man who worked at the Food Lion, and that Booth often supplied alcoholic beverages to Plaintiff and his under-age friends and co-workers.
The Food Lion Corporate Policy Manual specifically prohibits dating between management and associates in the same store. Where such a relationship exists, the corporate policy requires a transfer of one of the employees to another store. There are also procedures set forth for dealing with incidents of sexual harassment. Furthermore, the policy manual specifically prohibits loitering and consumption of alcohol on "property owned or leased" by Food Lion. Plaintiff alleges that Food Lion management was, or should have been, aware of Booth's inappropriate behavior and interactions with other employees and failed to take the necessary steps, pursuant to its own policy manual, to address the improprieties and breaches of the code of conduct required of all its employees.
See Food Lion Corporate Policy Manual, Pl. Resp. Br., D.I. 36, Ex. B.
Id.
Id.
Id.
On the date of this incident, September 24, 2002, after their shifts had ended and the store had closed, Plaintiff and Booth remained in the parking lot. There is no indication in the record that they were drinking that night. At approximately 12:10 a.m., as Plaintiff was riding on top of the hood of a vehicle operated by Booth, in the parking lot of Food Lion, he fell off and was injured. As a result, Plaintiff sustained permanent injuries to his neck, brain, head, shoulders, back, and legs. Due to the brain damage and loss of memory, Plaintiff does not have any recollection of the events that led to his injuries. On September 24, 2004, Plaintiff filed this action against Booth and Food Lion.
On the night of September 24, 2002, the Food Lion store closed at midnight.
STANDARD OF REVIEW
The standard for granting summary judgment is high. Summary judgment may be granted where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. "In determining whether there is a genuine issue of material fact, the evidence must be viewed in a light most favorable to the non-moving party." "When taking all of the facts in a light most favorable to the non-moving party, if there remains a genuine issue of material fact requiring trial, summary judgment may not be granted."
Mumford Miller Concrete, Inc. v. Burns, 682 A.2d 627 (Del. 1996).
Super.Ct.Civ.R. 56(c).
Muggleworth v. Fierro, 877 A.2d 81, 83-84 (Del.Super. 2005).
Gutridge v. Iffland, 889 A.2d 283 (Del. 2005).
ANALYSIS
This Court previously, by Order dated April 19, 2007, determined that the factual record was insufficient to grant Food Lion's Motion for Summary Judgment. Specifically, the Court found that Plaintiff should be afforded the opportunity to elicit evidence of Food Lion's knowledge of Booth's alleged propensity to engage in dangerous conduct. Since that time, Plaintiff has been provided the opportunity to brief the Court on the evidence supporting his negligent supervision claim. After a careful review of the record, the Court finds that there is no evidence to support his negligent supervision claim, and Food Lion is, therefore, entitled to summary judgment.Negligent Supervision and Retention
Plaintiff claims that Food Lion negligently supervised and trained its employee Booth. Food Lion argues that this claim is barred by Delaware's Workers' Compensation Statute. As described in further detail below, the Court concurs with Food Lion, in part. However, the Court cannot agree with Food Lion's position that an employee is absolutely barred from suing an employer for negligence under any circumstance. This Court previously determined that Plaintiff was not acting as a Food Lion employee at the time of the accident. He was off duty at the time and remained in the store parking lot solely for his own personal reasons. Had Plaintiff injured himself at Defendant's store while shopping for groceries on his day off, his status as a Food Lion employee certainly would not bar a common-law negligence claim against Food Lion. Similarly, since Plaintiff was not acting as a Food Lion employee at the time of the accident in question, he was owed the same duty of care as any other member of the general public in that same circumstance. However, as described below, Plaintiff's evidence is simply not sufficient to satisfy the necessary elements of a negligent supervision claim.
19 Del. C. § 2304.
Matthews v. Booth, 2007 WL 1153128 at *3 (Del.Super. April 19, 2007).
Id.
Panagos v. North Detroit General Hospital, 192 N.W.2d 542, 559 (Mich.App. 1971) (Holding that an employee injured by food purchased in employer's cafeteria was not barred from bringing a common-law negligence claim because her "case is based upon the vendor-vendee relationship.")
An action for negligent supervision is based upon the employer's negligence in failing to exercise due care to protect third parties from the foreseeable tortious act of an employee. An employer is liable for negligent hiring or supervision where the employer is negligent in giving improper or ambiguous orders or in failing to make proper regulations, or in the employment of improper persons, thus creating an unreasonable risk of harm to others.
Rausch v. Pocatello Lumber Co., Inc., 14 P.3d 1074 (Idaho Ct.App. 2000); Food Lion takes exception to the Court's previous reliance on Rausch, because the case did not involve a claim by an employee against an employer. The Court notes that since Matthews was not acting as an employee at time of his accident, the Court's decision is consistent with Rausch.
Simms v. Christina School District, 2004 WL 344015 (Del.Super.).
The deciding factor is whether the employer had or should have had knowledge of the necessity to exercise control over its employee. Thus, existence of duty under a negligent supervision theory depends upon whether the risk of harm from the dangerous employee was reasonably foreseeable as a result of the employment.
Id.; Janssen v. American Hawaii Cruises, Inc., 731 P.2d 163 (Haw. 1987).
The tortious act at the center of this dispute is Booth's allegedly negligent operation of her motor vehicle on Food Lion's property. Since the act was committed by a Food Lion employee and took place on Food Lion's property, Food Lion may have owed a duty to prevent the act. However, actual or constructive knowledge of Booth's propensity to engage in such an act is a necessary predicate to establishing this duty.
Matthews v. Booth, Comp. at ¶ 8 (Del.Super. Sept. 24, 2004).
Restatement 2 nd Torts, § 317.
Simms, supra at *9. (Granting summary judgment in a negligent hiring/supervision action because "there is no evidence in the record from which a trier of fact could infer that the defendants had any reason to believe" that the employee would commit the tortious act.); Smith v. Williams, 2007 WL 2677131 (Del.Super. Sept. 11, 2007).
Taken in a light most favorable to Plaintiff, it could be argued that Plaintiff has produced evidence that Booth engaged in several relationships with younger employees and consumed alcohol with them in the store parking lot. There is no evidence that any supervisor or other member of the management of the Food Lion was aware of that information, nor is the evidence sufficient, even if known to the Food Lion management, to establish Food Lion had knowledge of Booth's propensity to engage in the type of conduct that caused Plaintiff's injuries.
The conduct Plaintiff alleges was engaged in by Booth in no way exposed Plaintiff to the type of risk that caused his injuries. There is simply no causal connection between a social or personal relationship and injuries sustained while riding on the hood of a car. Therefore, Booth's alleged propensity to engage in personal or inappropriate relationships with younger co-workers is not sufficient to establish Plaintiff's claim for negligent supervision.
Evidence of prior alcohol consumption is also insufficient to support Plaintiff's claim. Food Lion's knowledge of prior alcohol consumption on its premises might trigger a duty to protect third parties who could be injured by such conduct. Plaintiff has alleged that Booth routinely provided alcohol to Plaintiff and other under-age employees, and that they consumed alcohol in the store parking lot on numerous occasions. However, there is no evidence that alcohol was involved in the incident that caused Plaintiff's injuries. Plaintiff has not alleged that either he or Booth were intoxicated on the night in question, and blood tests taken after the accident did not indicate the presence of alcohol in Plaintiff's system. Further, Plaintiff cannot produce any evidence that Food Lion management actually knew that Booth provided alcohol to minors and consumed alcohol on the store's premises.
Matthews v. Booth, Mot. Hr'g Trans. at 29 (Del.Super. July 9, 2007).
Id. at 18. Food Lion management has denied having knowledge of any alcohol consumption on the premises.
Other than Plaintiff's general allegation of Booth's inappropriate behavior, Plaintiff cites no evidence that Food Lion knew or should have known that Booth had a propensity to engage in the type of tortious conduct that caused Plaintiff's injuries. Therefore, the Court cannot conclude that Food Lion had a duty to prevent Booth from engaging in such conduct.
Pre-emption by Workers' Compensation
Plaintiff indicates that Food Lion had a heightened duty to protect Plaintiff because he was a young employee under Booth's supervision. To the extent that such a duty exists, the Court finds that a claim based upon a breach of this duty would be preempted by the exclusivity provision of Delaware's Workers' Compensation Statute.
19 Del. C. § 2304: "Every employer and employee, adult and minor, except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies."
An employee is barred from bringing a common-law claim against his/her employer for an "accident arising out of and in the course of employment." This Court has already determined that Plaintiff's injuries are not connected to his employment with Food Lion, because he was not acting in the scope of his employment when he suffered the injuries.
Id.; see EEOC v. Avecia, Inc., 2003 WL 22432911 at *4 (D. Del. October 23, 2003) ("This provision bars common law actions against an employer where: 1) plaintiff is an employee; 2) his condition is shown to be a `personal injury' within the meaning of the statute; and 3) the injury is shown to have arisen out of and in the course of employment").
Matthews v. Booth, 2007 WL 1153128 at *3 (Del.Super. April 19, 2007) ("In the present case, Plaintiff's injuries did not arise out of, or in the course of, employment. Although, Plaintiff was injured on premises under the control of Food Lion, neither Plaintiff nor Booth was engaged in a work-related activity at the time of the incident. Food Lion did not receive a benefit from Booth and Plaintiff's activities in the parking lot. Plaintiff's shift had ended, but he remained on the premises and for no other reason but his own personal benefit").
Nonetheless, Plaintiff alleges, inter alia, that Food Lion "breached its duty to protect young employees from supervisors that took advantage of their young years."
Matthews v. Booth, Comp. at ¶ 11 (Del.Super. Sept. 24, 2004).
If, as Plaintiff suggests, his injuries were caused by Food Lion's abrogation of a duty owed to Plaintiff solely by virtue of his status as a Food Lion employee, then it necessarily follows that Plaintiff's injuries arose out of his employment. For the purpose of avoiding the exclusivity provision of the Workers' Compensation Statute, Plaintiff argues vigorously that his injuries are not related to his status as a Food Lion employee. Plaintiff cannot argue that his injuries did not arise out of his employment while simultaneously arguing that Food Lion owed him a duty of care due by virtue of his status as Food Lion's employee.
Konstantopoulos v. Westvaco Corp., 609 A.2d 936, 939 (Del. 1996) (quoting Dravo v. Strosnider, 45 A. 2d 647, 650 (Del.Super. 1945)) ("An injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of the employment." Emphasis added).
Bertraut v. Folger Coffee Co., 2006 WL 2513175 at *3 (E.D. La. Aug. 29, 2006) ("The plaintiff cannot on one hand specifically claim that the doctrine of respondeat superior applies, while on the other, claim the actions did not arise in the scope of her employment"); Williams v. Lowe's Home Centers, Inc., 2007 WL 391597 (S.D. Miss. Jan. 31, 2007) (Stating that a negligent supervision claim is preempted by workers' compensation because the claim arises out of the employer-employee relationship).
Rather, for Plaintiff's negligent supervision claim to avoid summary judgment, Plaintiff must demonstrate the existence of a duty of care that Food Lion owed to Plaintiff as a member of the general public. Having failed to produce sufficient evidence to establish this duty, Plaintiff's case cannot proceed.
27 Am. Jur. 2d., Employment § 403 (2008) ("With regard to a claim of negligent supervision, evidence must be introduced to establish the existence of a duty to supervise the accused employees and that failure to supervise caused the alleged damages; absent such proof, the claim is fatally defective.")
CONCLUSION
To the extent that Plaintiff's negligent supervision claim is based upon his status as a Food Lion employee, his claim is preempted by the exclusivity provision of the Workers' Compensation Statute. Since there is insufficient evidence to support the existence of any other duty, Food Lion's Motion for Summary Judgment is hereby GRANTED.IT IS SO ORDERED.