Opinion
C.A. No. 96C-05-020WLW.
Submitted: April 17, 2000.
Decided: April 27, 2000.
William D. Fletcher, Jr., Esquire, Schmittinger and Rodriguez, P.A. 414 South State Street Dover, Delaware 19901.
Roger A. Akin, Esquire, Sawyer, Akin Herron, P.A. 1220 North Market Street, Suite 608 Wilmington, Delaware 19899.
Plaintiff's Motion in Limine
Dear Counsel:
Before the Court, is a Motion in Limine to exclude certain evidence prior to trial.
From the submissions of the parties, it is clear that Plaintiffs and Defendant are not in accord on the legal issues presented by this motion. In fact, the parties appear to be talking past each other and not focusing on the import of each other's arguments. On one hand, Plaintiffs are contending that Defendant cannot argue that the employer, EMT Construction Co., was contributorily negligent in this case. As a consequence, Plaintiff seeks to prevent Defendant from introducing evidence regarding EMT's negligence from the case. On the other hand, Defendant is asserting that it can argue that the employer was a supervening cause of the Plaintiff's injuries. Both parties are correct. Defendant admits that it is prohibited from arguing that Plaintiff's employer was contributory negligent by way of the Workers' Compensation Act, 19 Del. C. § 2304; however, the Defendant is permitted to argue that the employer was a superseding cause to the Plaintiff's injuries.
In Duphily v. Delaware Elec. Coop. Inc., Del. Supr., 662 A.2d 821, 827 (1995), the Supreme Court held that "[w]hen a party's negligence is relevant to the injury-producing event but not actionable, a defendant may nonetheless introduce evidence to establish that the negligence of the immune party was the supervening cause of the plaintiffs injury." The holding of Duphily is controlling to this case. In the instant case, the employer is immune from suit by way of the Workers' Compensation Act; therefore, the contributory negligence of the employer cannot be argued to the jury. However, Duphily stands for the proposition that the Defendant can still argue that the employer was the supervening cause of Plaintiff's injuries. Consequently, the Defendant can admit relevant evidence to prove that the employer was the supervening cause of the Plaintiff's injuries, thus relieving the Defendant from liability, but cannot admit evidence to prove that the employer was contributorily negligent in this accident.
The next issue espoused by the Plaintiffs is that the Defendant's theory of supervening cause is an "all-or-nothing" gamble. This is not the case. The Defendant is permitted to argue conflicting defenses to the cause of action. In the case at bar, the Defendant wishes to argue that the employer's negligence was a supervening cause of the Plaintiff's injuries or, in the alternative, that the Plaintiff was contributory negligent. This is allowed, and in this case, is not legally inconsistent.
It is well-settled law that there can be more than one proximate cause of an injury. Duphily at 829. The Defendant is not allowed to argue that the employer was contributory negligent. However, the Defendant is allowed to argue that the employer was a supervening cause which will cut off liability from another party's negligence. Therefore, it is not an "all-or-nothing" strategy. Defendant can argue that the Plaintiff was contributory negligent and that this contributory negligence was cut off from liability because of a supervening cause of by the employer. This is a consistent defense that the Court will allow.
The Plaintiff also contends that for the employer's actions to be a superseding cause, by definition, they must be either unforeseeable or highly extraordinary. As this Court stated in Burris v. Kay Bee Toy Stores, Del. Super., C.A. No. 96C-01-036, Witham, J. (Sept. 17, 1999) (ORDER), whether the action of a party is unforeseeable or highly extraordinary is a question of fact for the jury to decide:
The Plaintiff's motion in limine to prevent the jury from being instructed as to the existence of a superseding cause is denied because it is a question for the jury to determine whether the actions of [plaintiff] in the supervision of her young daughter amount to an intervening and/or superseding cause of the injuries to. . . . This is a fact specific determination that is not appropriate for the court to decide and should be left to the trier of fact.
Therefore, it will be left to the jury to decide whether the acts of the decedent's employer were unforeseeable or highly extraordinary.
The Plaintiff's' next contention is that the Defendant did not plead with particularity in its Answer the acts of contributory negligence by the employer. However, as already discussed, the Defendant has admitted that it cannot argue that the decedent's employer was contributorily negligent and has not attempted to do so. Since it is a factual determination of whether the acts of the employer were unforeseeable or highly extraordinary, it would be improper for me, as a matter of law, to decide that these acts were not pleaded with particularity in the Answer. As such, this argument is moot at this point.
The final argument addressed by the parties is the admissibility of violations of various OSHA regulations. The Defendant wishes to enter into evidence certain documents and testimonial evidence pertaining to the investigation of this accident and OSHA's subsequent findings. An "employee's violation of an OSHA safety regulation may be used as evidence of his or her contributory negligence provided that the party asserting such negligence makes a sufficient showing that the employee was instructed upon or otherwise made aware of the particular OSHA regulation." Duphily at 836. Therefore, to be admissible, the Defendant must prove that the decedent had knowledge, or should have had knowledge, of the relevant OSHA regulations that were being violated.
At the present time, there is not enough information in the record for the Court to make a determination on this issue. I will defer a ruling on this matter until the evidence at trial is sufficient enough to determine if the Defendant has met its burden of establishing that the Plaintiff knew or should have known that he was violating various OSHA regulations when this accident occurred. Thus, the Court will withhold a ruling on this issue until trial.
In conclusion, the Defendant will be allowed to argue that the decedent's employer was a supervening cause of the Plaintiff's injuries, but this evidence will be limited to prove this issue and not to prove that the employer was contributory negligent in the causation of this accident. In addition, it will be left to the trier-of-fact to decide if the employer's actions were unforeseeable or highly extraordinary. Finally, the admissibility of the violations of the OSHA regulations will be deferred until trial when the record is more fully developed regarding the decedent's knowledge of these violations.
IT IS SO ORDERED.
William L. Witham, Jr. Judge.