Petition for Writ of Certiorari — Windley v. City of Dover
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~ 96 768 Nov 16 1996
No.
—— OTE ER
In The :
Supreme Court of the United States
dp
October Term, 1996
WILLIAM T. WINDLEY and VICTORIA WINDLEY,
Petitioners,
VS.
CITY OF DOVER,
Respondent.
Petition for Writ of Certiorari to the United States
Court of Appeals for the Third Circuit
PETITION FOR WRIT OF CERTIORARI
LOIS J. DAWSON STEPHEN J. POKINIEWSKI, JR.
712 West Street Counsel of Record
Wilmington, Delaware 19801 SOL H. WEISS
(302) 984-0331 KRISTIN WERNER
ANAPOL, SCHWARTZ, WEISS
& COHAN, P.C.
1900 Delancey Place
Philadelphia, Pennsylvania 19103
(215) 735-2098
Attorneys for Petitioners
9955
(800) 3 APPEAL » (800) 5 APPEAL « (800) BRIEF 21 pez
AZ enices, inc.
i
QUESTIONS PRESENTED FOR REVIEW
I. Whether this Court should issue a Writ of Certiorari to
review the decision of the United States Court of Appeals for
the Third Circuit to affirm the Delaware District Court’s entry
of Summary Judgment based upon the “public building”
exception to governmental immunity set forth in 10 Del. C.
§ 4012(2), where the Court of Appeals’ decision departs from
Delaware substantive law, which applies the “public building”
exception to entry of a public building for the purpose of
performing maintenance or repairs?
Ii. Whether this Court should issue a Writ of Certiorari to
review the decision of the United States Court of Appeals for
the Third Circuit to affirm the Delaware District Court’s entry
of Summary Judgment, where Delaware substantive law is
inconsistent regarding the scope and application of the
“equipment” exception to governmental immunity set forth in
10 Del. C. § 4012(1)?
|
ii
LIST OF PARTIES
The names of all parties to the proceedings in the Court
whose judgment is sought to be reviewed appear in the caption
of this case.
The parties that do not appear in the caption but were a part
of the proceedings below are: POTTS WELDINGAND BOILER
REPAIR COMPANY, INC., a Delaware Corporation, WSMW
INDUSTRIES, INC., a Delaware Corporation, THE BABCOCK
& WILCOX COMPANY, a Delaware Corporation, ABB AIR
PREHEATER, INC., a Delaware Corporation and ERECTORS,
INC., a Delaware Corporation.
iii
TABLE OF CONTENTS
Page
Questions Presented for Review .................. i
a ae Ba Fp Rat RAM tgs Jaws ti
Stas aces dada s no daboteébede'e vot iii
ME eee ts eae ea se coe vsbiceces iv
I a 5 ee ee 1
Statement of Jurisdiction .............ccccccccees 1
Statutory Provisions Involved ................... l
Statement ofthe Case ........ ccc ccc ccccccccccces 3
Reasons for Granting the Writ .................... 8
I. The Court of Appeals’ Decision Departs from
the Express Language of 10 Del. C. § 4012
and Delaware Appellate Court Decisions
Regarding the Scope of the Exceptions to
Governmental Immunity. ................. 8
A. The Exceptions to Immunity Set Forth in
10 Del. C. § 4012 are Designed to Provide
Private Citizens with Relief from the
Injustices that are Inherent in the Doctrine
of Sovereign Immunity. .............. 8
iv
Contents
B. The Court of Appeals’ Decision Ignores
the Delaware Superior Court’s Holding in
Buckalew v. Cranston Heights Fire Co.,
Inc., Which Extends § 4012 Protection to
Members of the Public Injured While
Performing Maintenance or Repairs at a
a Ree ee rere
C. This Court Should Grant Certiorari to
Review the Court of Appeals’ Decision to
Affirm Summary Judgment Based Upon
the “Exception” Where the Scope and
Application of the Equipment Exception
are the Subjects of Numerous Conflicting
Decisions Under Delaware Law. .......
CRONNOOOE oko onkaduin Beene cs Keke asus
TABLE OF CITATIONS
Cases Cited:
Bordas v. City of Neward, Del. Super., C.A. No. 90 C-
GSES ckcveke ied s decent ckosesetecsias sees
Buckalew v. Cranston Heights Fire Co., Inc., Del.
Super. C.A. No. 685 C-SE-122 (April 21, 1987)
Page
10
13
19
16
neouWneed es enéveceecasehgasauaepesseenes 10, 12, 13
Fiat Motors v. Mayor and Council, 498 A.2d 1062
CRUE, RGD ds wk vanes i vneseedeusecasdektkenes 9,10, 17
Contents
Page
Griggs v. BK Corporation, 981 F.2d 1429 (3d Cir.
SWPED Si fe heWe bautibsdan vine Geaeeenelnesers 10, 13
Moore v. Wilmington Housing Authority, 619 A.2d
ee PPP e yy Peer Fe re rer ee 3, 4%, 32,39
Porter v. Delmarva Power & Light Co., 488 A.2d 899
I, SIPOE van cd 6 has Sek wae x owns bk ckee 14, 15
Ritgert v. City of Rehobeth Beach, 655 F. Supp. 1101
CNET ea bacceubicccdavians Web civic 14
Sadler v. New Castle County, 565 A.2d 917 (Del.
se PEE Ob Tt POE ke Rost Ul enaaemi ste 14, 15, 16
Sussex County Delaware v. Morris, 610 A.2d 1354
GEE FRET iss dp eon ks a sddkls ce ki seeks 14, 15
Triple C. Railcar Service, Inc. v. City of Wilmington,
Pe eae ee CAs AOSD vcos cWdee ces cknecare 15, 16
Statutes Cited:
Se EE TE heb bk bcedekadsch sé cahatediek 1
SO des BADE IAHR Eis 7
Be Mets BOD a 6 6 eh ook Rb ooh keh ceekanes 3
SO U0l,. C.F AGI ME. 5 6 SS ISAS Ties 6,8, 10
A
vi
Contents
Page
10 Del. ©. BOGE iii e Kier eee 1,2,8
50 Dek. ©. FACE ECOME) ais ac ke dh desea Havessbereni 7
50) SPRL, S. SER wivecccvendccouts 2,3, 7, 8,9, 10,11, 19
BO Somk. Ci SO GRACED 6a oi Wei deas i, 6, 14, 15, 16, 17, 18
EO pens G. BOOEACAD Sebuce ses ctcer i, 6, 10, 11, 12, 13, 17
Rule Cited:
Suorenns Court REIS FS. so cc in ce cbis ccasiveadcches 1
APPENDIX
Appendix A — Judgment Order of the United States
Court of Appeals for the Third Circuit Dated
Awgast 1D, LHS Se acces ie cea cvoresuvsticges la
Appendix B — Order of the United States District
Court for the District of Delaware Dated May 14,
BOUG 0 kan cece donne wnedeusn es beseeiene Gunnin 3a
Appendix C — Order of the United States District
Court for the District of Delaware Filed February 7,
EWOW dc cocsenescdsesnseaeuestuaveesbsentusss Sa
Appendix D — Memorandum Opinion and Order of
the United States District Court for the District of
Delaware Dated January 18, 1996 .............. 7a
vii
Contents
Appendix E — Order of the United States District
Court for the District of Delaware Dated September
ie ee aitdieccht Uv as ekiecsed Mi dateedie. 63.
Appendix F — Order of the United States District
Court for the District of Delaware Dated June 14,
ROS hen ata cciy Shake oes U5 bekdiuescic cs...
Appendix G — Order of the United States District
Court for the District of Delaware Dated June 14,
NE BG 0a Whe Kaen kiko wh UR eats Bkdlewek,
Appendix H — Order of the United States District
Court for the District of Delaware Dated June 14,
Pe ei oei i oie cea OO ek Ce ac
Appendix I — Order of the United States District
Court for the District of Delaware Dated February
Se CH a 8 ERs CN ecawei a veel RO
Page
18a
21a
23a
25a
1
OPINIONS BELOW
The Opinion in the United States District Court for the
District of Delaware in Windley v. Potts Welding & Boiler Repair
Company, Inc., et al., Civil Action No. 94-432-SLR, Memorandum
Opinion dated January 18, 1996 (Sue L. Robinson, District
Judge) is unreported. The United States Court of Appeals for
the Third Circuit affirmed the Delaware District Court’s entry
of Summary Judgment, without Opinion.
STATEMENT OF JURISDICTION
Petitioners seek to invoke jurisdiction in the Supreme Court
of the United States based upon 28 U.S.C. § 1254 which confers
jurisdiction upon decisions of the United States Courts of
Appeals by Writ of Certiorari granted upon the Petition of any
party to any civil or criminal case, before or after rendition of
judgment or decree. Petitioners’ Fetition for Certiorari seeks
review of the Order of the United States Court of Appeals for
the Third Circuit dated August 19, 1996 affirming the decision
of the United States District Court for the District of Delaware
entering Summary Judgment in favor of The City of Dover and
is timely filed within 90 days of the Court of Appeals’ decision,
pursuant to Supreme Court Rule 13.
STATUTORY PROVISIONS INVOLVED
A. 10 Del. C. § 4011 (1979)
§ 4011. Immunity from Suit
(a) Except as otherwise expressly provided
by statute, all governmental entities and their
employees shall be immune from suit on any
and all tort claims seeking recovery of
2
damages. That a governmental entity has the
power to sue or be sued, whether appearing
in its charter or statutory enablement, shall
not create or be interpreted as a waiver of
the immunity granted in this subchapter.
(b) Notwithstanding § 4012 of this title, a
governmental entity shall not be liable for
any damage claim which results from:
(3) the performance or failure to
exercise or perform a discretionary
function or duty, whether or not the
discretion be abused and whether or
not the statute, charter, ordinance,
order, resolution, regulation or resolve
under which the discretionary
function or duty is performed is valid
or invalid.
10 Del. C. § 4011 (1979).
B. 10 Del. C. § 4012 (1979)
§ 4012. Exceptions to Immunity.
A governmental entity shall be exposed to
liability for its negligent acts or omissions
causing property damage, bodily injury or
death in the following instances:
(1) In its ownership, maintenance or
use of any motor vehicle, special
mobile equipment, trailer, aircraft or
other machinery or equipmeni,
whether mobile or stationary.
So ee een
5
+
4
3
;
3
(2) In the construction, operation or
maintenance of any public building or
the appurtenances thereto, except as
to historic sites or uildings,
structures, facilities or equipment
designed for use primarily by the
public in connection with public
outdoor recreation.
(3) In the sudden and accidental
discharge, disposal, release or escape
of smoke, vapors, soot, fumes, acids,
alkaline, and toxic chemicals, liquids
or gases, waste materials or other
irritants, contaminants or pollutants
into or upon land, the atmosphere or
any watercourse or body of water.
10 Del. § 4012 (1979).
STATEMENT OF CASE
This is a personal injury action to recover for injuries
suffered by William T. Windley, Jr., on November 18, 1992
during repair of The Unit No. 2 Air Preheater at the McKee
Run Generating Station in Dover, Delaware. Jurisdiction in the
United States District Court for the District of Delaware was
appropriate based upon diversity of citizenship with the amount
in controversy exceeding Fifty Thousand Dollars, pursuant to
28 U.S.C. § 1332(a).
The City of Dover has owned the McKee Run Generating
Station for nearly thirty (30) years. The purpose of the McKee
Run Generating Station is to generate electricity for use by the
public, as well to create revenue for the City of Dover. In fact,
4
sale of electrical power generates more than fifty percent of the
City of Dover’s total revenue. In fiscal year 1992/93 alone, the
McKee Run Generating Station added $43,890,567 in revenue
to the City of Dover. The Unit Number 2 Air Preheater is part of
the Power Block Building at McKee Run. In the course of The
City’s normal use of the Unit Number 2 Air Preheater, every
year since the machine was purchased, the air preheater has
required maintenance. Each year, the City solicits bids from
members of the public for hourly and overtime rates for craft,
labor and supervision for the repair of three (3) steam boilers
and two (2) hot water boilers, miscellaneous heat exchangers,
condensers and plant piping for the period July 1 through June
30 of the succeeding year. The contractors, and their employees,
awarded the contract are members of the public who have access
to the plant during the course of the repairs. The invitation to
bid refers each bidder to the City of Dover’s Safety Standards
and requires compliance with same.
On May 19, 1992, Potts Welding & Boiler Repair Co., Inc.
(hereinafter “Potts”) submitted its bid for the period of July 1,
1992 through June 30, 1993. Potts had been the successful bidder
for the work at McKee Run for the prior twenty-one (21) years
and was once again awarded the contract. Potts began work on
the air preheaters on Units 1 and 2 on August 21, 1992. Potts
subcontracted some of the labor to WSMW Industries, Inc.
(hereinafter “WSMW”), a company that had previously
subcontracted work for Potts at McKee Run. WSMW’’s personnel
performed the initial repair on the air preheater for Unit Number
2. Robert Claussen, McKee Run Plant Manger, actively
supervised the repairs. The City of Dover found the WSMW
repairs more extensive than planned and incorrectly performed.
WSMW stopped working at the end of October, 1992.
Potts contracted with Erectors, Inc. to replace WSMW.
Erectors hired Petitioner, William Windley, a union millwright
Fe ag, ee Te ee a
Sitios. nari denne
5
employed by a subcontractor and member of the public, as its
general foreman. William Windley and the Erectors crew started
work on November 6, 1992, approximately one (1) week after
WSMwW left. William Windley observed that the welds WSMW
used on the upper and lower seal rings on the Unit Number 2
Air Preheater exacerbated the machine’s problems. Robert
Claussen agreed. To accelerate the repairs to the welds, Robert
Claussen required a millwright to sit inside the rotating drum
with a special tool to reduce the built up welds. Robert Claussen
pressured Potts and Erectors to expedite repairs to the preheater,
forcing work around the clock.
On Novewaber 18, 1992, at approximately 10:30 p.m.,
William Windley bent over to talk to Robert Fairful, another
employee, who was inside the rotating drum of the Unit Number
2 Air Preheater machining off the excess welds. The rotating
drum had been stopped. William Windley placed his head and
upper torso inside the access panel, thinking that all of the gate
valves had been closed and the motor lever had been locked off
according to procedure. Mr. Windley’s right knee hit the quick
action lever. Suddenly and without warning, the drum rotated,
crushing Mr. Windley’s pelvis against the side of the panel. In
the confusion, William Windley’s leg again hit the valve,
activating the rotating drum once more and further crushing his
pelvis. This time, George Duncan, a Potts employee, closed
down the gate valve.
The City of Dover Safety Rules, printed in or around 1972,
provide a forty-three (43) page comprehensive procedure for
accident prevention. Robert Claussen stated that the Rules
applied to employees of the City of Dover and to contractors
and subcontractors brought in to McKee Run to perform repairs.
Although the Invitation to Bid referred to the Safety Rules, the
City of Dover admits that the Rules were not furnished to
6
WSMW or Erectors employees for the work that was to be
performed in 1992 and 1993. Robert Claussen testified that he
did not realize the Rules were in existence until after the
accideni. Norris Hudson, Safety Coordinator for the City of
Dover, indicated that he gave a copy of the Rules to John Jones,
a principal at Potts, many years before the accident. Norris
Hudson felt no need to supply any more copies of the Rules to
Potts. Mr. Hudson rationalized if outside workers wanted a copy
of the Safety Rules, they could have requested same. Mr. Hudson
presupposed their knowledge that such rules existed.
The Safety Rules, in detail, provide the appropriate method
for entering confined spaces such as the rotating drum in the air
preheater. The Rules state that before an employee enters a
confined space, he shall notify his supervisor and shall see that
all valves, switches, control devices and other operating
mechanisms have been positioned, secured and tagged with
danger tags, and are in the “off” position. The rules state that,
when working with pneumatic airlines, the air hose should be
disconnected from the air source before making adjustments.
More importantly, under no circumstances shall safety be
sacrificed for speed. Each of these Rules were violated and
caused William Windley’s accident.
On November 11, 1995, the City of Dover moved the
District Court for Summary Judgment contending that the City
of Dover is immune from liability pursuant to the County and
Municipal Tort Claims Act, 10 Del. C. § 4010, et seg. On
November 22, 1995, William and Victoria Windley filed their
Answering Brief in Opposition to the City of Dover’s Motion
for Summary Judgment contending that the City of Dover
remains liable for William Windley’s injuries based upon the
“equipment” and “public building” exceptions to governmental
immunity set forth in 10 Del. C. § 4012(1) and (2). The Windley’s
also asserted that the City of Dover’s failure to comply with or
7
enforce its own mandatory safety rules is not a “discretionary
act” within the meaning of 10 Del. C. § 4011(b)(3).
In an Order and Opinion dated January 18, 1996, the District
Court entered Summary Judgment in favor of The City of Dover,
concluding that the McKee Run Generating Station and its
appurtenances do not constitute “public buildings” for purposes
of the public building exception to immunity because workers,
such as William Windley, performing maintenance at the McKee
Run Generating Station do not use the facility for its “public
purpose”. (App. at 7a-17a). The District Court also concluded
that the air preheater at issue does not constitute “equipment”
for purposes of the “equipment exception” to immunity because
it does not pose a particular hazard to members of the public in
its normal use or application. (App. at 7a-17a).
On February 14, 1996, William and Victoria Windley timely
filed a Notice of Appeal of the District Court’s January 18, 1996
Order to the United States Court of Appeals for the Third Circuit,
contending that the District Court’s entry of Summary Judgment
was inappropriate based upon the “equipment” and “public
building” exceptions to governmental immunity. In addition,
the Windley’s asserted that the City of Dover’s failure to comply
with its mandatory safety rules is not a “discretionary act” within
the meaning of 10 Del. C. § 4011(b)(3). Jurisdiction in the Court
of Appeals was appropriate based upon 28 U.S.C. § 1291.
On March 20, 1996, William and Victoria Windley
Petitioned the Delaware District Court for Certification of
Questions of Law to the Delaware Supreme Court relating to
the proper interpretation of 10 Del. C. § 4012.
On May 14, 1996, the District Court entered an Order
denying William and Victoria Windley’s Petition for Certification
of Questions of Law. (App. at 3a-4a).
8
On August 15, 1996, the United States Court of Appeals
for the Third Circuit heard oral argument on the Windley’s appeal
of the District Court’s January 18, 1996 Order. In an Order dated
August 19, 1996, the Court of Appeals affirmed the decision of
the District Court, without Opinion. (App. at la-2a).
This is William T. and Victoria Windley’s Petition for
Certiorari for Review of the Court of Appeals’ August 19, 1996
Order.
REASONS FOR GRANTING THE WRIT
J,
THE COURT OF APPEALS’ DECISION DEPARTS
FROM THE EXPRESS LANGUAGE OF 10 DEL. C. § 4012
AND DELAWARE APPELLATE COURT DECISIONS
REGARDING THE SCOPE OF THE EXCEPTIONS TO
GOVERNMENTAL IMMUNITY.
A. The Exceptions to Immunity Set Forth in 10 Del. C.
§ 4012 are Designed to Provide Private Citizens with Relief
from the Injustices that are Inherent in the Doctrine of
Sovereign Immunity.
Section 4011 of the County and Municipal Tort Claims Act,
10 Del. C. §§ 4010, et seg. provides government entities with
immunity from suit on tort claims seeking recovery of damages.
Section 4012 of the Act delineates the exceptions to § 4011 and
provides:
§ 4012. Exceptions to Immunity.
A governmental entity shall be exposed to
liability for its negligent acts or omissions
9
causing property damage, bodily injury or
death in the following instances:
(1) In its ownership, maintenance or use of
any motor vehicle, special mobile equipment,
trailer, aircraft or other machinery or
(2) In the construction, operation or
maintenance of any public building or the
appurtenances thereto, except as to historic
sites or buildings, structures, facilities or
equipment designed for use primarily by the
public in connection with public outdoor
recreation.
(3) In the sudden and accidental discharge,
dispersal, release or escape of smoke, vapors,
soot, fumes, acids, alkaline, and toxic
chemicals, liquids or gases, waste materials
or other irritants, contaminants or pollutants
into or upon land, the atmosphere or any
watercourse or body of water. (62 Del. Laws,
c. 124, § 2).
10 Del. C. § 4012.
In Moore v. Wilmington Housing Authority, 619 A.2d 1166
(Del. 1993), the Delaware Supreme Court considered the General
Assembly’s intent in enacting the County and Municipal Tort
Claims Act and determined that “the General Assembly was
answering [the Delaware Supreme] Court’s call to provide
wronged private citizens with relief from the injustices that are
inherent in the Doctrine of Sovereign Immunity”. Moore, supra,
619 A.2d at 1169 (citing Fiat Motors v. Mayor and Council,
498 A.2d 1062, 1066-67 (Del. 1985). Moreover, the Delaware
aii ig |
vo 2
10
Supreme Court stated, “the General Assembly intended to strike
a balance between the rights of individuals and the interests of
society in general, as represented by municipal entities”. Jd.
It is well-settled that Federal Courts in diversity cases must
apply the substantive law of the state whose laws govern the
action. Griggs v. BK Corporation, 981 F.2d 1429, 1431 (3d Cir.
1992). The Court of Appeals’ decision in the case, sub judice,
departs from the express language of 10 Del. C. § 4012 and
Delaware appellate authority regarding the application of the
exceptions to governmental immunity. Therefore, this case
presents the opportunity for this Court to clarify the Federal
Courts’ obligations with respect to the application of state
substantive law in diversity actions, and to redress the injury to
Petitioners caused by the failure of the courts below to consider
relevant Delaware authority relating to the scope of the
exceptions to governmental immunity set forth in 10 Del. C.
§ 4012.
SS ee ee ee
ee ee a
B. The Court of Appeals’ Decision Ignores the Delaware |
Superior Court’s Holding in Buckalew v. Cranston Heights }
Fire Co., Inc., Which Extends § 4012 Protection to Members |
of the Public Injured While Performing Maintenance or
Repairs at a Public Building.
The “public building exception” to governmental immunity
is set forth in § 4012(2) of the County and Municipal Tort Claims
Act, 10 Del. C. § 4010, et seg. Under § 4012(2), the City of
Dover is liable for its negligent acts or omissions causing bodily
injury:
(2) In the construction, operation or
maintenance of any public building or the
appurtenances thereto, except as to historic
sites or buildings, structures, facilities or
11
equipment designed for use primarily by the
public in connection with public outdoor
recreation.
10 Del. C. § 4012(2).
In the case at bar, the Court of Appeals’ decision to affirm
the Delaware District Court’s entry of Summary Judgment based
upon its conclusion that entry of a public building for the purpose
of performing maintenance or repairs in furtherance of the
building’s public purpose does not constitute “use of the building
for its public purpose” pursuant to 10 Del. C.§ 4012(2), is
directly contrary to Delaware appellate authority.
The Delaware Supreme Court’s decision in Moore, supra.,
619 A.2d at 1169, is the first published opinion by Delaware
Courts defining or analyzing the meaning of the term “public
building” as it is used in 10 Del. C. § 4012(2). Id. The issue in
Moore was whether a leased dwelling unit owned by a public
housing authority is a “public building” for purposes of 10 Del.
C. § 4012(2). The Delaware Supreine Court in Moore, supra.,
outlined the appropriate inquiry to be used by courts in
determining which structures constitute “public buildings”, for
purposes of § 4012. Under Moore, supra., a “public building”
is:
1. A building and its appurtenances;
2. operated and maintained by a government
entity for a public purpose; and
3. open to those members of the public who
use it for its intended purpose.
Id. at 1174-1175.
12
Applying this test, the Delaware Supreme Court, in Moore,
concluded that the dwelling unit at issue was a “building”,
thereby satisfying the first criteria for a public building. The
Court also found that providing low cost housing to needy
citizens constitutes a legitimate public policy objective, thereby
satisfying the second criteria. In addition, the Court concluded
that the building was open to members of the public (tenants
and guests) who use it for its intended purpose, thereby satisfying
the third criteria for a public building. Because all three elements
of a public building were present, the Delaware Supreme Court
concluded that the dwelling unit at issue is a “public building”
for purposes of 10 Del. C. § 4012(2). Id.
The Moore decision does not address the issue of whether
entry into a building by members of the public for the purpose
of performing maintenance or repairs in furtherance of the
building’s public purpose objectives constitutes “use of the
building for its intended purpose”, within the meaning of 10
Del. C. § 4012(2). In addition, no Delaware Supreme Court
decision since Moore addresses this issue.
However, the Delaware Superior Court’s decision in
Buckalew v. Cranston Heights Fire Co., Inc., Del. Super., C.A.
No. 685C-SE-122, Stiftel, J. (April 21, 1987), refused to permit
governmental immunity where a member of the public was
injured while performing maintenance. In Buckalew, supra, a
case factually similar to the instant case, the plaintiff entered
onto the property of the defendant fire company for the purpose
of performing maintenance to a fire truck. The plaintiff suffered
injury when he slipped and fell on an accumulation of ice and
snow outside the doorway to the garage of the fire company.
The defendant fire company moved for Summary Judgment on
the basis of its immunity under the County and Municipal Tort
Claims Act. The piaintiff argued that the “public building
exception” to immunity applied. The Delaware Superior Court
13
found that the public building exception applied and denied
Summary Judgment. Significantly, there was no finding that
the plaintiff’s entry onto the property to perform maintenance
failed to constitute “use of the building for its public purpose.”
In the case sub judice, Petitioners offered the Delaware
Superior Court’s decision in Buckalew, supra., in support of their
argument that William Windley’s injury while performing
maintenance and repairs to the Unit Number Two Air Preheater,
falls squarely within the “public building” exception to immunity
set forth in 10 Del. C. § 4012(2). Instead, the Court of Appeals
affirmed the District Court’s decision, which did not consider
Buckalew.
The Court of Appeals’ approach is contrary to the specific
language of 10 Del. C. § 4012(2), which expressly states that
government entities are liable for negligent acts or omissions in
the “construction, operation or maintenance of any public
building or the appurtenances thereto”. 10 Del. C. § 4012(2)
(Emphasis added). More importantly, the District Court’s failure
to consider the Delaware Superior Court’s decision in Buckalew,
supra., was improper and inconsistent with the Court’s obligation
to “apply the substantive law of the state whose laws govern the
action.” Griggs v. BK Corporation, 981 F.2d 1429, 1431 (3d
Cir. 1992). The Court of Appeals’ omission thus presents an
important question of federal judicial policy, review of which
by the United States Supreme Court, is appropriate.
C. This Court Should Grant Certiorari to Review the Court
of Appeals’ Decision to Affirm Summary Judgment Based
Upon the “Equipment Exception” Where the Scope and
Application of the Equipment Exception are the Subjects of
Numerous Conflicting Decisions Under Delaware Law.
The decisions of Delaware Courts are conflicting with
14
respect to the scope of the “equipment exception” to
governmental immunity set forth in 10 Del. C. § 4012(1). In
the absence of a definitive statement on this issue, inconsistent
decisions have been handed down by Delaware courts, creating
uncertainty among both plaintiffs and defendants in Delaware.
In the case, sub judice, the Court of Appeals’ decision to affirm
the District Court’s entry of Summary Judgment based upon its
determination that the Air Preheater involved in William
Windley’s accident does not constitute “other equipment” for
purposes of 10 Del. C. § 4012(1) was inappropriate, given the
uncertain state of Delaware law on this issue. Additionally, the
Court of Appeals’ decision directly conflicts with Delaware’s
express public policy in favor of a liberai interpretation of the
“equipment exception.” See, Sussex County Delaware v. Morris,
610 A.2d 1354 (Del. 1992); Sadler v. New Castle County, 565
A.2d 917 (Del. 1989); Porter v. Delmarva Power & Light Co.,
488 A.2d 899 (Del. Super. 1984).
In Porter, supra., the Delaware Superior Court advocated a
“liberal but realistic” application of the equipment exception.
At issue in Porter was whether the City of Dover was immune
from suit for injuries to a minor plaintiff who climbed a metal
utility pole and came in contact with high voltage electric
transmission lines, owned, operated and maintained by the City.
The Superior Court defined “equipment”, for purposes of 10
Del. C. § 4012(1), as “the implements (as machinery or tools)
used in an operation or activity”. Jd. at 906. The Delaware
Superior Court interpreted § 4012(1) broadly and held that the
City was not immune from liability for the minor’s injuries
because poles and lines were “equipment” for purposes of
§ 4012(1). Id.
In addition, in Ritgert v. City of Rehobeth Beach, 655 F.
Supp. 1101 (D. Del. 1987), the Delaware District Court expanded
the Porter Court’s definition of “equipment” under 10 Del. C.
15
§ 4012(1). The District Court concluded that under Delaware
law, the definition of “equipment”, for purposes of § 4012(1),
includes items which “play a vital role in some operation or
activity”. Jd. The District Court also reitereted the Delaware
Superior Court’s admonition in Porter, supra., for liberal but
realistic application of the “equipment” exception. /d.
The Delaware Supreme Court considered the “equipment
exception” in Sadler, supra., 565 A.2d at 917. In Sadler, the
Delaware Supreme Court acknowledged the ambiguous State
of Delaware law on this issue, and expressed its reluctance to
“impose a precise standard for application of the equipment
exception”. Sadler, supra, 565 A.2d at 923. Instead, the Sadler
Court advocated a broad definition of “equipment”, which
includes items “of unusual design or size ... which in their
normal use or application pose a particular hazard to members
of the public”. Jd.
In Sussex County Delaware, supra., 610 A.2d at 1354, the
Delaware Supreme Court considered the scope of the equipment
exception once again and advocated an even broader reading of
the statute to include “defective or inappropriate” equipment,
Stating:
Implicit in Sadler is the principle that use of
defective or inappropriate machinery or
equipment may divest a governmental entity
of immunity under Section 4012 irrespective
of Section 4011(b)(3) {relating to
discretionary acts].
Sussex County, supra, 610 A.2d at 1358.
In contrast, other Delaware decisions appear to narrow the
scope of the “equipment exception”. See, e.g., Triple C. Railcar
16
Service, Inc. v. City of Wilmington, 630 A.2d 629 (Del. 1993);
Bordas v. City of Newark, Del. Super., C.A. No. 90 C-09-182,
Taylor, J. (April 10, 1992) (clogged storm drain does not trigger
the equipment exception).
In Triple C. Railcar, supra, a property owner brought an
action for damages arising from a series of floods allegedly
caused by a clogged tidegate which was owned and operated by
the City of Wilmington. The plaintiff contended that the City
was not entitled to immunity for its negligent maintenance of
the tidegate because the tidegate qualifies as “other equipment”
for purposes of 10 Del. C. § 4012(1). The Delaware Supreme
Court disagreed and held that the “other equipment exception”
was inapplicable because the tidegate did not have characteristics
similar to objects that are mobile and/or objects that are
particularly hazardous to the public in its normal use. The
Delaware Supreme Court construed § 4012(1) narrowly and
concluded that the tidegate only became dangerous through
negligent repair. The Delaware Supreme Court also found that
there was no causative connection between the tidegate and the
plaintiff’s damages.
The Triple C. Railcar decision is problematic in that it is
inconsistent with the Delaware Supreme Court’s decision in
Sadler, supra., rejecting the need for physical similarity between
the equipment at issue and that enumerated in the statute, and
requiring only that equipment be of a similar “type” to that set
forth in the statute. The Sadler Court went on to define
equipment of a “similar type” as that with “potential to inflict
damages and injury when negligently maintained or used.”
Sadler, supra., 565 A.2d at 923.
More importantly, the Triple C. Railcar decision is
inconsistent with the plain language of 10 Del. C. § 4012(1)
under which governmental entities are liable for negligent acts
or omissions causing bodily injury:
os
8 aE a ae Oe a Mao?
AP RS RS Ae
Be SAE CUE SB A REN EIEN +g
ARE OP RE,
17
(1) In its ownership, maintenance or use of
any motor vehicle special mobile equipment,
trailer, aircraft or other machinery or
equipment, whether mobile or stationary.
10 Del. C. § 4012(2).
The Court of Appeals’ decision in the case at bar ignores
the conflicting decisions regarding the “equipment exception”
under Delaware law and affirms the District Court’s conclusion
that maintenance of a product is not part of its “normal use or
application” for purposes of 10 Del. C. § 4012(1), despite the
express language of § 4012(1) which imposes liability for
injuries arising out of “maintenance” of equipment.
Significantly, no published Delaware Supreme Court Opinion
addresses this issue.' In the absence of an affirmative statement
by the Delaware Supreme Court on this issue, the Court of
Appeals was required to predict how Delaware’s highest Court
would rule, or certify this case to the Delaware Supreme Court
for resolution of this issue. The foregoing examination of
Delaware appellate authority establishes that Court of Appeals’
decision to exclude maintenance from the “normal use” of the
air preheater is contrary to the express language of the statute,
as well as the policy underlying Delaware’s exceptions to
governmental immunity, namely to “provide private citizens with
relief from the injustices that are inherent in the Doctrine of
Sovereign Immunity.” Moore, supra., 619 A.2d at 1169 (citing
Fiat Motors v. Mayor and Council, Del. Supr., 498 A.2d 1062,
1066-67 (1985). Application of the approach advocated by the
Court of Appeals in the case at bar will have the undesirable
1. On March 20, 1996, William and Victoria Windley Petitioned the
Delaware District Court to certify this question to the Supreme Court of
Delaware for resolution. On May 14, 1996, the Windley’s Petition for
Certification was denied on jurisdictional grounds. (App. at 3a through 4a).
18
effect of excluding from relief al! Delaware workers injured
during maintenance or repair of equipment owned by
government entities. Such an approach will render the
“equipment exception” virtually meaningless.
The Court of Appeals’ decision to affirm the District Court’s
entry of Summary Judgment clearly departs from the express
language of 10 Del. C. § 4012(1) and Delaware Appellate
decisions regarding the scope of the “equipment exception.”
Therefore, review of the Court of Appeals’ decision by the United
States Supreme Court and certification of the issues relating to
the 10 Del. C. § 4012 exceptions to governmental immunity are
appropriate and necessary to review the propriety of the Court
of Appeals’ decision to affirm Summary Judgment, particularly
where the scope and application of the “equipment exception”
are the subjects of. numerous conflicting decisions under
Delaware law.
19
CONCLUSION
The foregoing establishes that the Court of Appeals’ decision
to affirm the District Court’s entry of Summary Judgment departs
from the express language of 10 Del. C. § 4012 and is
inconsistent with decisions of the Delaware Courts regarding
the scope and application of the “public building” and
“equipment” exceptions to governmental immunity. The Court
of Appeals’ decision thus implicates important questions of
federal judicial policy, review of which by the United States
Supreme Court, is appropriate. For all of the reasons set forth
herein, Petitioners William T. and Victoria Windley pray that
this Court grant a Writ of Certiorari to review the August 19,
1996 decision of the United States Court of Appeals for the Third
Circuit.
Respectfully submitted,
STEPHEN J. POKINIEWSKI, JR.
Counsel of Record
SOL H. WEISS
KRISTIN WERNER
ANAPOL, SCHWARTZ, WEISS
& COHAN, PC.
1900 Delancey Place
Philadelphia, Pennsylvania 19103
(215) 735-1130
(215) 735-2098
LOIS J. DAWSON
712 West Street
Wilmington, Delaware 19801
(302) 984-0331
Attorneys for Petitioners
oor
we <a
a Dee BEY eee te Bad,
PORE, BEE SIN MO NET iH
aA
la
APPENDIX A — JUDGMENT ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT DATED AUGUST 19, 1996
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-7127
WILLIAM T. WINDLEY; VICTORIA WINDLEY, his wife
Vv.
POTTS WELDING AND BOILER REPAIR COMPANY, INC.,
a Delaware Corporation; MSMW INDUSTRIES, INC., A
Delaware Corporation; CITY OF DOVER: THE BABCOCK &
WILCOX COMPANY, a Delaware Corporation; ABB AIR
PREHEATER, JNC., A Delaware Corporation
ERECTORS, INC., A DELAWARE CORPORATION ;
Third-party Defendant
WILLIAM T. WINDLEY, JR.; VICTORIA WINDLEY, his wife,
Appellants
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 94-00432)
District Judge: Honorable Sue L. Robinson
Argued August 15, 1996
2a
Appendix A
BEFORE: GREENBERG and ALITO, Circuit Judges
and DEBEVOISE, District Judge*
JUDGMENT ORDER
After consideration of the contentions raised by appellants,
it is
ADJUDGED and ORDERED that the judgment of the
district court entered January 19, 1996, be and is hereby
affirmed.
Costs taxed against appellants.
BY THE COURT:
s/ illegible
Circuit Judge
ATTEST
s/ illegible
Chief Deputy Clerk
Dated: August 19, 1996
* Honorable Dickinson R. Debevoise, Senior Judge of the United States
District Court for the District of New Jersey, sitting by designation.
- Se ate
3a
APPENDIX B — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
DELAWARE DATED MAY 14, 1996
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 94-432-SLR
WILLIAM T. WINDLEY, JR. and VICTORIA WINDLEY, his
wife,
Plaintiffs,
v.
POTTS WELDING & BOILER CORPORATION CO., INC., a
Delaware corporation, and CITY OF DOVER,
Defendants and Third-Party Plaintiffs,
v.
ERECTORS, INC., a Delaware corporation,
Third-Party Defendant.
ORDER
At Wilmington this 14th day of May, 1996, plaintiffs having
filed, on February 14, 1996, an appeal with the United States
Court of Appeals for the Third Circuit (D.I. 172); and plaintiffs
having subsequently filed, on March 20, 1996, a petition for
certification of questions of law to the Supreme Court of
Delaware (D.I. 176);
4a
Appendix B
IT IS ORDERED that plaintiffs’ petition for certification is
denied, as the court lacks jurisdiction over the case. See United
States ex rel. Tillery v. Cavell, 294 F.2d 12, 18 (3d Cir. 1961),
cert. denied, Tillery v. Maroney, 370 U.S. 945 (1962).
s/ Sue L. Robinson
United States District Judge
Sa
APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
DELAWARE FILED FEBRUARY 7, 1996
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 94-432-SLR
WILLIAM T. WINDLEY, JR., and VICTORIA WINDLEY, his
wife
Plaintiffs,
Vv.
POTTS WELDIING & BOILER CORPORATION CO., INC., a
Delaware corporation and CITY OF DOVER,
Defendants and Third-Party Plaintiffs,
v.
ERECTORS, INC., a Delaware corporation
Third-Party Defendant.
ORDER
At Wilmington this 7th day of February, 1996,
IT IS ORDERED that a teleconference has been scheduled
for Thursday, February 15, 1996 beginning at 8:30 a.m. to
discuss the status of the on-going negotiations as a result of
6a
Appendix C
mediation in this matter. Counsel for plaintiffs Windley shall be
responsible for initiating the conference call.
s/ illegible
UNITED STATES MAGISTRATE JUDGE
7a
APPENDIX D — MEMORANDUM OPINION AND
ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DATED JANUARY 18, 1996
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 94-432-SLR
WILLIAM T. WINDLEY, JR. and VICTORIA WINDLEY, his
wife,
Plaintiffs,
v.
POTTS WELDING & BOILER REPAIR CO., INC., a Delaware
Corporation, WSMW INDUSTRIES, INC., a Delaware
Corporation, CITY OF DOVER, THE BABCOCK & WILCOX
CO., a Delaware Corporation, AND AIR PREHEATER CORP.,
succeeded by BABCOCK & WILCOX CO., a Delaware
Corporation,
Defendants,
and
POTTS WELDING & BOILER REPAIR CO., INC.,
Third Party Plaintiff,
v.
ERECTORS, INC., a Delaware Corporation,
Third Party Defendant.
8a
Appendix D
ORDER
At Wilmington this 18th day of Janyary, 1996, consistent
with the memorandum opinion issued this same date;
IT IS ORDERED that defendant City of Dover’s motion
for summary judgment (D.I. 150) is granted. The clerk is directed
to enter judgment in favor of defendant City of Dover.
s/ Sue L. Robinson
United States District Judge
9a
Appendix D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 94-432-SLR
WILLIAM T. WINDLEY, JR. and VICTORIA WINDLEY, his
wife,
Plaintiffs,
v.
POTTS WELDING & BOILER REPAIR CO., INC., a Delaware
Corporation, and CITY OF DOVER,
Defendants and Third Party Plaintiffs,
v.
ERECTORS, INC., a Delaware Corporation,
Third Party Defendant.
Lois J. Dawson, Esquire, Wilmington, Delaware, Sol H. Weiss,
Esquire, and Kristin Werner, Esquire, of Anapol, Schwartz, Weiss
and Cohan, Philadelphia, Pennsylvania, counsel for plaintiffs.
Robert K. Pearce, Esquire, of Trzuskowski, Kipp, Kelleher &
Pearch, P.A., Wilmington, Delaware, attorney for defendant City
of Dover.
William J. Cattie, II, Esquire, of Heckler & Cattie, Wilmington,
Delaware, attorney for defendant Potts Welding and Boiler
Repair Company, Inc.
10a
Appendix D
Raymond W. Cobb, Esquire, of Saul, Ewing, Remick & Saul,
Wilmington, Delaware, attorney for third party defendant
Erectors, Inc.
MEMORANDUM OPINION
Dated: January 18, 1996
Wilmington, Delaware
s/ Sue L. Robinson
ROBINSON, District Judge
I, INTRODUCTION
Plaintiffs brought this diversity suit after William Windley
sustained severe injuries while repairing an air preheater at the
McKee Run Power Plant in Dover, Delaware. Defendant City
of Dover has moved for summary judgment on the grounds of
governmental immunity. For the reasons discussed below, the
court will grant defendant City of Dover’s motion for summary
judgment.
Il. BACKGROUND
The facts of the case relevant to this motion are not in
dispute. Defendant City of Dover owns and operates the McKee
Run Power Plant, which supplies electricity to the public and
generates a substantial amount of revenue for the city. (D.1. 153
at 3) In the spring of 1992, the city solicited bids for maintenance
on the plant’s equipment, as it had done each year for the nearly
thirty years that the plant had been operational. (D.1. 153 at 3)
The contract was awarded to Potts Welding and Boiler Repair
lla
Appendix D
Company (“Potts Welding”), which had performed repairs on
the McKee Run Plant for twenty-one years. (D.I. 153 at 4) Potts
Welding in turn subcontracted first with a company called
WSMW, and later with Erectors, Inc., to make repairs on the
plant's air preheater number 2. (D.I. 151 at 3; D.I. 153 at 4; D.1.
155 at 4) Plaintiff William Windley, a union millwright, was
hired by Erectors, Inc. as its general foreman on the McKee run
subcontract. (D.I. 153 at 4-5)
The air preheater is a large self-contained unit with no
external moving parts. (D.I. 151 at 5) During the repairs,
however, the preheater’s access panels were open, and a
millwright was working inside a rotating drum on the interior
of the preheater. (D.I. 151 at 3; D.I. 153 at 5; D.I. 155 at 6) The
accident occurred on November 18, 1992, after the rotating drum
had been stopped to allow Mr. Windley to lean into the access
panel and converse with the millwright inside the drum. As he
did so, Mr. Windley’s knee tripped a valve that caused the drum
to begin spinning. The drum pinned Mr. Windley to the side of
the panel, crushing his pelvis. Two of his coworkers managed
to stop the drum from rotating, but in the confusion Mr. Windley
again knocked against the valve, causing the drum to crush him
further. (D.I. 151 at 3-4; D.1. 153 at 6; D.1. 155 at 7-8)
Ill. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that a party
is entitled to a summary judgment where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue of material fact and that the moving party is entitled to a
12a
Appendix D
judgment as a matter of law.” A party seeking summary judgment
always bears the initial responsibility of informing the Court of
the basis for its motion, and identifying those portions of “the
pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any,” which it
believes demonstrate the absence of a genuine issue of material
fact.
Defendant City of Dover’s motion for summary judgment
presents only a question of law, namely, whether the city is
immune from suit under 10 Del. Code § 4010 et seq. There is
no dispute among the parties as to the pertinent facts underlying
the City of Dover’s claim of immunity. This question, therefore,
is properly decided at the summary judgment stage.
B. Statutory Basis for Immunity
Delaware’s Tort Claims Act grants broad immunity to county
and municipal entities and their employees within the state. The
statute provides:
Except as otherwise expressly provided by
statute, all governmental entities and their
employees shall be immune from suit on any
and all tort claims seeking recovery of
damages. That a governmental entity has the
power to sue or be sued, whether appearing
in its charter or statutory enablement, shall
not create or be interpreted as a waiver of
the immunity granted in this subchapter.
10 Del. Code § 4011(a). This grant of immunity is waived only
__in a very narrow range of circumstances:
13a
Appendix D
A governmental entity shall be exposed to
liability for its negligent acts or omissions
causing property damage, bodily injury or
death in the following instances: (1) In its
ownership, maintenance or use of any motor
vehicle, special mobile equipment, trailer,
aircraft or other machinery or equipment,
whether mobile or Stationary. (2) In the
construction, operation or maintenance of
any public building or the appurtenances
thereto, except as to historic sites or
buildings, structure, facilities, or equipment
designed for use primarily by the public in
connection with public outdoor recreation.
(3) In the sudden and accidental discharge,
dispersal, release or escape of smoke, vapors,
soot, fumes, acids, alkalines and toxic
chemicals, liquids or gases, waste materials
or other irritants, contaminants or pollutants
into or upon land, the atmosphere or any
watercourse or body of water.
10 Del. Code § 4012. The statute further provides that
“(notwithstanding § 4012 ... a governmental entity shall not
be liable for any damage claim which results from ... [t]he
performance or failure to exercise or perform a discretionary
function or duty... .” 10 Del. Code § 4011(b).
In construing these provisions, the Delaware courts have
focused on the Act’s broad grant of immunity and have
interpreted the exceptions narrowly. Plaintiffs and crossclaim
defendants Potts Welding argue that the power plant is a public
building under § 4012(2), and that the air preheater falls under
l4a
Appendix D
the “other equipment” exception of § 4012(1). The opponents
of the motion also contend that the city cannot claim the blanket
protection of § 4011(b)(3) because the duty to maintain safety
was not discretionary. Because the court concludes that none of
the exceptions to immunity applies in this case, it is unnecessary
to decide whether the city’s actions were discretionary.
C. Public Building Exception
The opponents of the motion for summary judgment argue
that the McKee Run facility falls under the public building
exception set forth in § 4012(2). A building does not have to be
accessible to the general public to fit within the exception. The
Delaware Supreme Court has ruled that to qualify as a public
building, a structure must 1) fit the “ordinary dictionary
meaning” of the term “building”;' 2) serve a public purpose;
1. The court adopted the following definition of “building”:
1: a thing built: a: a constructed edifice designed to
stand more or less permanently, covering a space of
land, usu. covered by a roof and more or less
completely enclosed by walls, and serving as a
dwelling, storehouse, factory ... or other useful
structure — distinguished from structures not
designed for occupancy (as fences or monuments). . . .
Moore, 619A.2d at 1174, citing Webster's Third New International Dictionary
292 (1986) (emphasis added). It is not altogether clear to the court that the
McKee Run Generating Station fits the definition of a building or appurtenance
thereto. The moving party, however, has conceded that the structure in question
is an appurtenance to a building. Lacking more complete information, the
court will proceed on this assumption.
ee eT
So i Oe ee ee ee | ee
i dea tee
15a
Appendix D
and 3) be “open to those members of the public who use it for
its intended purpose.” Moore v. Wilmington Housing Authority,
619 A.2d 1166, 1174-75 (Del. Supr. 1993). The parties agree
that the McKee Run plant is a building, and that it serves the
public purposes of producing electricity and generating revenue
for the city. The remaining question, therefore, is whether it is
open to members of the public who use it for these purposes.
Plaintiffs and defendant Potts Welding argue that the
contractors responsible for making repairs at the McKee Run
plant are members of the public, and that their work constituted
use of the building for its intended purpose. The court cannot
agree. The agreed purposes of the McKee Run Generating
Station are generating electricity and raising money for the city.
The workers were not present at the facility for the purpose of
making electricity or making money for the city. No members
of the public must physically enter the power plant to obtain
their electricity or pay their electric bills. In its normal operation,
when the plant is in fact engaged in fulfilling its intended
purpose, no members of the public are required, or even
permitted, to come into contact with it at all. The court
concludes, therefore, that it would strain the definition of “public
building” to include within it the McKee Run Generating Station.
D. Equipment Exception
Plaintiffs and defendant Potts Welding maintain that the air
preheater in which William Windley was injured constitutes
“other machinery or equipment” under § 4012. Although the air
preheater would seem to fit a layman’s definition of equipment,
the Delaware courts have interpreted this term more narrowly,
employing the rule of ejusdem generis. Triple C. Railcar Service,
Inc. v. City of Wilmington, 630 A.2d 629 (Del. Supr. 1993);
16a
Appendix D
Sadler v. New Castle County, 565 A.2d 917, 923 (Del. Supr.
1989). This rule of construction states that where a general term
follows a series of specific terms, the general term is to be
construed as applying only to things of the same type as those
specifically enumerated. Black’s Law Dictionary 517 (6th ed.
1990). The Delaware Superior Court articulated the rationale
for this interpretive choice in ruling that a stretcher and
backboard used by paramedics are not equipment under the
Statute:
Motor vehicles, special mobile equipment as
defined in Title 21, trailers, and aircraft are
instruments which are commonly at the
center of tort suits and which, by virtue of
their potential to inflict damage and injury
when negligently maintained or used, are
subject to regulation under our laws. The
same cannot be said for the devices here
claimed to fall within the exception.
Sadler v. New Castle County, 524A.2d 18, 24 (Del. Super. 1987),
affirmed, 565 A.2d 917 (Del. Supr. 1989). The air preheater in
question bears no resemblance to the devices listed before “other
equipment” in the statute.
The Delaware Supreme Court further refined its definition
of equipment as “limited to those items of unusual design or
size, such as motor vehicles, aircraft or electric transmission
lines, which in their normal use or application pose a particular
hazard to members of the public.” Sadler, 565 A.2d at 923
(emphasis added). Plaintiffs maintain that the air preheater poses
a danger during “its contemplated use during maintenance.” (D.I.
153 at 21) (emphasis added). While the parties agree that the
17a
Appendix D
air preheater in question is of unusual size and design, it was
only in the abnormal circumstances of this particular repair that
it posed a danger. Under the narrow construction of the
exceptions demanded by the statute and case precedent, this
court cannot accept plaintiffs’ interpretation.
Crossclaim defendant Potts Welding maintains that the air
preheater constitutes “equipment” because it is part of the
municipal electric system. Potts Welding notes that electrical
utility poles and lines have been found to be equipment under
the statute, Porter v. Delmarva Power & Light Co., 432 A.2d
899 (Del. Super 1984), rev'd on other grounds, 547 A.2d 124
(Del. Supr. 1988), and argues that the air preheater, as an
appurtenance to the electrical system, also falls within the
equipment exception. The Delaware Supreme Court rejected a
nearly identical argument in Triple C Railcar. The mere fact
that an item is part of a utility System, the court ruled, does not
put the item itself in the category of public hazards addressed
in the equipment exception. Triple C Railcar Service, Inc., 630
A.2d at 632-33. The court distinguished the tidegate in question
in that case from the utility lines judged to be equipment in
Porter, and concluded that “{uJnlike a dam or tidegate, an electric
transmission line presents a constant, ever-present potential for
harm simply through contact, even when the equipment is
operating as intended.” Jd. at 632. Similarly, an air preheater
presents no constant danger of harm simply through contact.
IV. CONCLUSION
For the forgoing reasons, the court concludes that defendant
City of Dover is immune from suit under 10 Del. Code § 4010
et seq. The city’s motion for summary judgment, therefore, will
be granted. An order consistent with this meraorandum opinion
will issue.
18a
APPENDIX E — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
DELAWARE DATED SEPTEMBER 26, 1995
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 94-432-SLR
WILLIAM T. WINDLEY, JR. and VICTORIA WINDLEY, his
wife,
Plaintiffs,
v.
POTTS WELDING & BOILER CORPORATION CO., INC., a
Delaware corporation, and CITY OF DOVER,
Defendants and Third-Party Plaintiffs,
v.
ERECTORS, INC., a Delaware corporation,
Third-party Defendant.
ORDER
At Wilmington this 26th day of September, 1995, having
conferred with counsel;
IT IS ORDERED that:
1. Settlement Conference. Pursuant to 28 U.S.C. § 636, this
19a
Appendix E
matter is referred to Magistrate Judge Trostle for the purposes
of exploring the possibility of a settlement.
2. Discovery. All discovery (fact and expert) shall be
initiated so that it can be completed on or before December 22,
1995.
3. Discovery Disputes. Should counsel find they are unable
to resolve a discovery dispute, they shall jointly call the court
to schedule a time for an office conference or telephone
conference call to review the matter. Should counsel for a party
determine that a discovery dispute requires the court’s attention
for resolution, he/she shall so inform Opposing counsel and
discuss the dispute one final time before calling the court to
schedule an office conference or telephone conference call to
review the matter. Once a conference has been scheduled, each
party may file with the court prior to such conference a one-
page letter memorandum setting forth the dispute and its position
with respect thereto. Motions filed pursuant to Fed. R. Civ. P.
37 without benefit of the above-described informal procedure
shall be denied.
Thereafter, should the court find a motion and briefing are
necessary, it shall establish an appropriate briefing schedule.
4. Case and Issue Dispositive Motions. All case and issue
dispositive motions and an opening brief and affidavits, if any,
in support of the motion, shall be served and filed on or before
December 22, 1995. Briefing shall be presented pursuant to D.
Del. LR 7.1.2. If counsel agree that no case or issue dispositive
motions are contemplated, they shall so inform the Court on or
before December 22, 1995.
20a
Appendix E
5. Pretrial Conference. On Monday, February 26, 1996,
the court will hold a final pretrial conference pursuant to Fed.
R. Civ. P. 16(d) and D. Del. LR 16 with counsel beginning at
5:00 p.m. On or before February 12, 1996, plaintiffs’ counsel
shall forward to defendants’ counsel a draft of the pretrial order
with the information plaintiffs propose to include in the draft.
On or before February 19, 1996, defendants’ counsel shall, in
turn, provide plaintiffs’ counsel with comments on the plaintiffs’
draft and the information defendants propose to include in the
proposed order. Each party shall include in the draft pretrial
order an identification of each expert witness that party expects
to call to testify at the trial and a brief statement of the substance
of each opinion that expert will testify to at the trial. Unless
otherwise ordered by the court, the parties should assume that
filing the pretrial order satisfies the pretrial disclosure
requirement in Fed. R. Civ. P. 26(a)(3). Where a case is to be
tried to a jury, pursuant to D. Del. LR 47 and 51, the parties
should file proposed voir dire, instructions to the jury, and special
verdicts and interrogatories three full business days before the
final pretrial conference.
6. Trial. This matter is scheduled for a jury trial
commencing on Monday, March 4, 1996, in Courtroom No. 3,
Sixth Floor Federal Building, 844 King Street, Wilmington,
Delaware. For the purposes of completing pretrial preparations,
counsel should plan on each side being allocated a total number
of hours to present its case.
7. The parties shall direct any requests or questions
regarding the scheduling and management of this matter to
Deputy Clerk Lisa Friedkin at (302) 573-6129.
s/ Sue L. Robinson
United States District Judge
2la
APPENDIX F — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF DELAWARE
DATED JUNE 14, 1995
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CIVIL ACTION NO. 94-432-JLL
WILLIAM T. WINDLEY, JR. and VICT ORIA WINDLEY, his
wife,
Plaintiffs,
v.
POTTS WELDING & BOILER REPAIR, CO., INC., a Delaware
corporation, CITY OF DOVER, and ABB AIR PREHEATER,
INC., a Delaware corporation,
Defendants.
ORDER
The Court having granted defendant ABB Air Preheater
Inc.’s (“ABB Air Preheater”) motion for summary judgment,
(Docket Item [“D.I.”] 88), based on ABB Air Preheater’s statute
of repose defense pursuant to 10 Del. C. § 8127, and thus
dismissing the plaintiff’s claims against it on June 9, 1995, (D.I.
119), it is
ORDERED that defendant Potts Welding & Boiler Repair,
Co., Inc.’s cross-claim for contribution or indemnification
against ABB Air Preheater, (D.I. 91), and defendant City of
Dover’s crossclaim for contribution or indemnification against
ABB Air Preheater, (D.I. 92), are hereby dismissed.
22a
Appendix F
Dated: June 14, 1995.
s/ James L. Latchum .
UNITED STATES DISTRICT JUDGE
Copies mailed and/or
delivered this date to:
Lois J. Dawson, Esq.
Sol H. Weiss, Esq.
William J. Cattie III, Esq.
Robert K. Pearce, Esq.
Daniel L. McKenty, Esq.
Kevin Gray, Acting Clerk of Court
23a
APPENDIX G — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF DELAWARE
DATED JUNE 14, 1995
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CIVIL ACTION NO. 94-432-JLL
WILLIAM T. WINDLEY, JR. AND VICT: ORIA WINDLEY, his
wife,
Plaintiffs,
v.
POTTS WELDING & BOILER REPAIR, CO.., INC., a Delaware
corporation, CITY OF DOVER, and ABB AIR PREHEATER,
INC., a Delaware corporation,
Defendants.
ORDER
The Court having considered defendant City of Dover’s
motion for leave to file a third-party complaint against Erectors,
Inc., (Docket Item [“D.1.”] 93), and defendant Potts Welding &
Boiler repair Co., Inc.’s motion for leave to file a third-party
complaint against Erectors, Inc., (D.I. 94), and no objection
having been made within the time limits prescribed by the Local
Rules, it is
ORDERED that both motions are granted.
Dated: June 14, 1995.
24a
Appendix G
s/ James L. Latchum
UNITED STATES DISTRICT JUDGE
Copies mailed and/or
delivered this date to:
Lois J. Dawson, Esq.
Sol H. Weiss, Esq.
William J. Cattie III, Esq.
Robert K. Pearce, Esq.
Daniel L. McKenty, Esq.
Kevin Gray, Acting Clerk of Court
25a
APPENDIX H — ORDER OF THE UNITED STATES
DISTRICT COURT FORTHE DISTRICT OF DELAWARE
DATED JUNE 14, 1995
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CIVIL ACTION NO. 94-432-JLL
WILLIAM T. WINDLEY, JR. and VICTORIA WINDLEY, his
wife,
Plaintiffs,
v.
POTTS WELDING & BOILER REPAIR, CO., INC., a Delaware
corporation, CITY OF DOVER, and ABB AIR PREHEATER,
INC., a Delaware corporation,
Defendants.
ORDER
The Court having considered plaintiffs motion for leave to
amend their complaint pursuant to Rule 15 of the Federal Rules
of Civil Procedure to assert a claim for punitive damages against
defendant City of Dover, (Docket Item [“D.I.”] 107), and
defendant City of Dover having waived its right to respond, (D.I.
110), as did the other remaining defendant Potts Welding &
Boiler Repair Co., Inc., (D.I. 115), it is
ORDERED that plaintiffs’ motion is granted.
Dated: June 14, 1995.
26a
Appendix H
s/ James L. Latchum
UNITED STATES DISTRICT JUDGE
Copies mailed and/or
delivered this date to:
Lois J. Dawson, Esq.
Sol H. Weiss, Esq.
William J. Cattie III, Esq.
Robert K. Pearce, Esq.
Daniel L. McKenty, Esq.
Kevin Gray, Acting Clerk of Court
27a
APPENDIX I — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF DELAWARE
DATED FEBRUARY 23, 1995
UNITED STATES DISTRICT COURT
FOR 1HE DISTRICT OF DELAWARE
CIVIL ACTION NO. 94-432-JLL
WILLIAM T. WINDLEY, JR. and VICTORIA WINDLEY, his
wife,
Plaintiffs,
POTTS WELDING & BOILER REPAIR, CO., INC., a Delaware
corporation, MSMW INDUSTRIES, INC., a Delaware
corporation, CITY OF DOVER, and AIR PREHEATER, INC.,
succeeded by Babcock & Wilcox Company, a Delaware
corporation,
Defendants.
ORDER
This Court having held a hearing on February 22, 1995 at
10:00 A.M., and having considered the arguments of both
plaintiffs’ and defendant Air Preheater Corporation’s counsel
enters the following findings:
1. The plaintiffs have failed to respond to defendant Air
Preheater Corporation’s motion to dismiss pursuant to Rule 12
(b) (6) of the Federal pRules of Civil Procedure and thereby
violated Local Rule 7.1.2.
28a
Appendix I
2. The Court also finds that the complaint failed to state a
claim against defendant Air Preheater Cosperation voon which
relief can be granted.
WHEREFORE IT IS ORDERED THAT the complaint
against Air Preheater Corporation is hereby dismissed without
prejudice and the plaintiffs are granted leave to amend the
complaint with respect to that defendant on or before March 9,
1995, subject however to any applicable statute of limitations
or statute of repose which may be asserted in defense by Air
Preheater Corporation.
Dated: February 23, 1995.
s/ James L. Latchum
UNITED STATES DISTRICT JUDGE
Copies mailed and/or
delivered this date to:
Lois J. Dawson, Esq.
Sol H. Weiss, Esq.
William J. Cattie II, Esq.
Jeffrey K. Martin, Esq.
_ Robert K. Pearce, Esq.
Daniel L. McKenty, Esq.
J. R. McAllister, Jr., Clerk
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