Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

Case 1:07-cv-00626-JJF

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MARK BEKIER AND RENEE BEKIER, Plaintiffs, V. COMMONWEALTH CONSTRUCTION COMPANY, INC., Defendant/Third-Party Plaintiff,
V.

C. A. 07-cv-00626-JJF DEMAND FOR JURY TRIAL OF TWELVE

KNZ CONSTRUCTION, INC. Third-Party Defendant. MOTION TO DISMISS ON BEHALF OF DEFENDANT , KNZ CONSTRUCTION, INC. Defendant, KNZ Construction, Inc., ("KNZ"), by and through the undersigned counsel, White and Williams, LLP, hereby respectfully requests that this Court enter the attached order dismissing defendant/third-party plaintiff Commonwealth Construction Company, Inc.'s

("Commonwealth ") third-party complaint pursuant to Fed. R. of Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted . In support of its motion ,' KNZ states: 1. On February 1, 2007, Plaintiff Mark Bekier filed the present case in the District Court for the District of New Jersey , which was transferred to this Court on October 15, 2007. This action arises from a work accident that occurred on February 2, 2005.2 Plaintiff alleges he fell from a roof due to the negligence of the general contractor , defendant/third-party plaintiff

' KNZ waives its right to file an opening brief and opts to submit this motion in lieu of an opening brief pursuant to Local Rule 7.1.2. KNZ reserves the right to file a reply brief. 2 See Complaint, attached hereto as Ex. A.

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Commonwealth.3 On June 10, 2008, Commonwealth filed a Motion for Leave to File a ThirdParty Complaint, which was granted on June 20, 2008. The third-party complaint, which only alleges claims predicated on common law negligence, was deemed to be filed on June 20, 2008. 2. Pursuant to Federal Rule 12(b)(6), a party may move to dismiss a complaint for failure to state a claim upon which relief can be granted.4 The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to resolve disputed facts or decide the merits of the case.5 Therefore, when considering a motion to dismiss, the Court must accept as true all

allegations in the complaint and must draw all reasonable inferences in the light most favorable to the plaintiff.6 However, the Court is "not required to accept legal conclusions either alleged or inferred from the pleaded facts." 7 Dismissal of a complaint is appropriate when "it appears

beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief. ,8 When the facts pleaded and the reasonable inferences drawn therefrom are

legally insufficient to support the relief sought, the Court may dismiss the complaint.9 3. Under 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 and scope of employment, regardless of the question of negligence and to the exclusion of all other

4 Fed. R. Civ. P. 12(b)(6). 5 Kostv. Kozakiewicz, 1 F.3d 176, 183 (3d. Cir. 1993).

6 Neitzke v. Williams, 490 U.S. 319, 326 (1989); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255 (3d. Cir. 1994). Kost, 1 F.3d at 1983. s Conley v. Gibson, 355 U.S. 41, 45 (1957).

9 See Pennsylvania ex. rel. Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179 (3d. Cir, 1988).

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rights and remedies." The pending third-party complaint filed against KNZ should be dismissed under § 2304, which bars any recovery in a negligence action against one's employer where the injury arises from the course and scope of employment.10 4. Under § 2304, a plaintiff's tort claim is barred against the employer or co-worker if the

plaintiff was an employee, plaintiff suffered a personal injury, and the injury arose out of and in the course and scope of employment.'' In order for a party to seek an exception to the exclusivity provision of § 2304 barring negligence claims against the employer, the plaintiff must allege "specific intentional tortious conduct" and the intentional tort must be entirely unrelated to work. 12 5. In this case, Plaintiff Mark Bekier has alleged that he was injured in a work related

accident on or about February 2, 2005. At the time of the incident, Commonwealth has alleged that it was the general contractor on a project and subcontracted with KNZ to perform work as a roofing contractor. 13 In both the plaintiff's complaint and Commonwealth's third-party complaint, it is

alleged that Mr. Bekier was working for KNZ at the time of the incident. 6. Commonwealth's lone count is captioned "Construction Site Negligence." Ex. B.

Commonwealth alleges that KNZ breached a duty owed to plaintiff and that KNZ was negligent in that it failed to keep the premises in a reasonably safe condition (¶ 7), failed to inspect the work site (¶ 8), failed to warn Plaintiff of dangerous conditions (¶ 9), failed to inspect the work being

10 Kofron v. Amoco Chem. Corp., 441 A.2d 226, 231 (Del . 1981); see Diamond State Telephone Co. v. University of Del., 269 A.2d 52 ( Del. 1970)(stating that "the payment of compensation to an injured employee or his representatives is exclusive and precludes the assertions of any other remedies against the employer.") 11 Murdoch v. Camp Arrowhead Church Camp, 2003 WL 21526993, * 3 (Del. Super.) Rafferty v. Hartman Walsh Painting Co., 760 A . 2d 157, 161 (Del. 2000); Murdoch, 2003 V L 21526993 at *3; 19 Del. C. § 2301(15). 13 See Commonwealth's Third-Party Complaint, attached hereto as Exhibit B. 12

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performed by others (¶ 10), failed to provide adequate training (¶ 11), failed to provide a safe place of employment (¶ 12), and failed to comply with OSHA safety standards (¶ 13).14 7. Commonwealth has failed to plead any exception to § 2304's bar to negligence claims Accepting the facts pleading in the complaint and third-party complaint as true,

against KNZ.

plaintiff was an employee of KNZ at the time of the incident and during his employment suffered an injury while working on a project where Commonwealth was the general contractor. All of

Commonwealth's allegations are common law tort claims and cannot succeed as a matter of law under any set of facts, as they are precluded by § 2304.15

WHEREFORE, KNZ Construction, Inc. respectfully requests that this Honorable Court enter an Order in the form attached granting judgment with prejudice in favor of it and against Commonwealth Construction Company, Inc.

WHITE AND WILLIAMS LLP

BY:

/s/ Timothy S. Martin JOHN D. BALAGUER, I.D. #2537 TIMOTHY S . MARTIN, I.D. 94578 824 N. Market Street, Suite 902 P.O. Box 709 Wilmington, DE 19899-0709 Phone: (302) 467-4509 [email protected] Attorneys,for Defendant, KNZ Construction, Inc.

Dated: August 8, 2008

14

Id.

15 See Murdoch, 2003 WL 21526993 at *3. -4PI-ILDMS 1 4563009v.1

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MARK BEKIER AND RENEE BEKIER, Plaintiffs,
V.

C. A. 07-cv-00626-JJF : DEMAND FOR JURY TRIAL OF TWELVE

COMMONWEALTH CONSTRUCTION COMPANY, INC., Defendant/Third-Party Plaintiff, V. KNZ CONSTRUCTION, INC. Third-Party Defendant. ORDER HAVING CONSIDERED KNZ Construction , Inc.'s motion to dismiss defendant /thirdparty plaintiff Commonwealth Construction Company, Inc.'s third-party complaint, and all responses thereto; IT IS HEREBY ORDERED that defendant/third-party plaintiff Commonwealth Construction Company, Inc.'s complaint is DISMISSED WITH PREJUDICE insofar as the third-party complaint is brought against KNZ Construction, Inc.

The Honorable Joseph J. Farnan, Jr.

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

MARK BEKIER and RENEE BEKIER 217 Bradley Ave.

CIVIL ACTION NO'.:

Bellmawr , New Jersey
Plaintiffs,

v.
COMMONWEALTH CONSTRUCTION COMPANY , INC:COMPLAINT and JURY aka COMMONWEALTH CONSTRUCTION COMPANY : TRIAL DEMAND

and. JOHN DOES 1 - 20 (fictitious names of individuals , sole proprietors: partnerships , corporations , or any entities who owned , managed, maintained , inspected and/or constructed the subject property); jointly , severally or in the Alternative. Defendants

-----------------------------------------------------------

JURISDICTION .TW..

Jurisdiction

is

conferred

upon

this as

Court is

pursuant Ito 28 U.S.C. Section 1332 ( a),

there

diversity of citizenship and the matter in controversy exceeds On o Hundred Fifty Thousand Dollars ($150,000.00), exclusive.of interest and costs.

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2,

Plaintiffs, Mark and Renee Bekier are citizens of

the County of Camden, State of New Jersey, residing at 217 Bradley Ave., Bellmawr, New Jersey. 3. Defendant Commonwealth Constructions' principal

place of business is 2317 Pennsylvania Ave., Wilmington, Delaware 19899. 4. Commonwealth Construction is licensed to do

business in the State of New Jersey and in fact conducts substantial business in New Jersey,

INTRODUCTION TO THE PARTIES Mark Bekier 1. On February 2005, Mark Bekier and his employer,

KNZ Construction Inc., 125 N Park Street, Dallastown, PA 17313, were hired by Commonwealth Construction Company to

install among other things, a cowl wall system on the roof of the building located at 51 West Main Street in Middletown, Delaware. Mr. Bekier was in the course and

scope of his employment as a construction worker when he fell approximately 10 feet to the ground while preparing the roofing for installation of the cowl wall system. Mr.

Bekier was taken to the Trauma Unit at Christiana Hospital, in Christina, Delaware, where he was diagnosed with

compound fractures to his left leg, which required surgery

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with rods and screws to repair the break. 2005 Mr, Bekier required a second

On February 11, at Cooper

surgery

Hospital in Camden, New Jersey on his right heel that also required the installation of screws and plates. Mark

Bekier is presently 46 years old and suffers from permanent disability as a result of the fall. Before, during and

after this accident, Renee Bekier was/is the wife of Mark Bekier.

Commonwealth Construction Company, Inc.
2. -Commonwealth Commonwealth Construction Company, the Inc. general

(hereinafter

Construction)is

contractor and/or sub-contractor who hired Mark Bekier and his employer, KNZ Construction, on or before February 2, 2005 to install among other things, a cowl wall system on the roof where Mr, Bekier to was injured. to the Commonwealth principles of

Construction

failed

adhere

construction safety management in that they did not provide a safe work place free from hazards including weather

related hazards, they did not provide warnings of such hazards and they did not provide all appropriate safety equipment, including without limitation, crawling boards,

safety lines, safety belts or other personal fall arrest systems utilized by the construction industry for Mr.

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Bekier.

Commonwealth Constructions'

principal

place of

business is 2317 Pennsylvania Ave.,, Wilmington, Delaware 19899. states Commonwealth Construction does business in multiple including but not limited to Pennsylvania, New

Jersey and Maryland. COUNT ONE CONSTRUCTION SXTE NEGLIGENCE

1,

On February 2, 2005, Mark Bekier sustained severe

injuries when he fell approximately 10 feet to the ground while trying to install among other things, a cawl wall system on the roof of a building at 51 West Main Street, Middletown, Delaware. 2. ;Mr. Bekier and his employer, KNZ Construction,

were on the premises as a sub-contractor of defendant, Commonwealth Construction. 3. Defendant Commonwealth Construction was the

contractor that hired Mr. Bekier and his employer, KNZ Construction, to install among other things, a cowl wall system on the roof at 51 West Main Street, Middletown, Delaware.° 4. principal. Defendant place of Commonwealth Construction has its

business at 2317 Pennsylvania Ave.,

Wilmington, Delaware.

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5.

Mr. Bekier was in the course and scope of his job

duties when he fell. 6. Mr. Bekier was not provided with all appropriate

safety equipment. 7. Defendant Commonwealth Construction had control

of the work area during the construction period.
81 Defendant Commonwealth Construction had a non-

delegable duty to provide a safe workplace for Mr. Bekier and all others working at the property where Mr. Bekier was injured.

9. because, reasonably

Defendant Commonwealth Construction was negligent among safe other things, they failed to provide a workplace to Mr. Bekier and others.

Specifically, defendant Commonwealth Construction failed to provide a safe work place and all required safety equipment for his workers , including crawling boards,
safety lines,

safety belts or other personal fall arrest systems utilized in the construction industry.
10. Defendant Commonwealth Construction was negligent

in failing to inspect the worksite for safety deficiencies, eliminate these deficiencies and failing to warn of such deficiencies including weather related deficiencies.

.

11. Defendant Commonwealth Construction had knowledge

of the dangerous fall conditions and knew that they were in

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violation of OSHA regulations, or alternately should have so known.

12, The Commonwealth Bekier were

acts

and/or

omissions which caused

of injury

defendant to Mr. with

Construction, performed or

omitted

volitionally,

knowledge of the existence of a probability of risk or injury to members of the public, including Mr. Bekier, and with reckless disregard of that risk. 13, 14. defendant suffered including The unsafe workplace violated OSHA regulations, As a proximate cause of the Mr. emotional leg and negligence Bekier of has

Commonwealth permanent fractures

Construction, and right

physical to his

injuries, heel, which He

required surgery and rods, screws and plates repair.

will continue to suffer emotional and physical injuries and will incur future wage losses.
WHEREFORE , judgment Company against Inc., the the for Plaintiff, Mark Bekier, demands

defendant Commonwealth Construction compensatory and punitive damages,

interest and costs of suit,

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COUNT TWO MARK BEKIER v. JOHN DOES #1-20 CONSTRUCTION SITE NEGLIGENCE

1.

Mark Bekier repeats all of the allegations of all

of the preceding Counts of this Complaint. 2. On February 2, 2005, Mark Bekier, age 46, was

working for his employer, KNZ Construction at a property located at 51 West Main Street, Middletown, Delaware.
3. Defendant John goes #1-20 are fictitious names of sole proprietors, partnerships, corporations entities who owned, managed, maintained,

individuals, or any other or

inspected,

were otherwise responsible for the safety

and/or construction at the subject property.

4.

Defendant

John

Does

#1-20

had

contracted

with

Commonwealth Construction, to install among other things, a cowl wall system on the roof of a building at 51 West Main Street, Wilmington, Delaware, As part of its job,

employees were required to work on roofs.
5. Mark Bekier was in the course and scope of his job

duties when he fell approximately 10 feet to the ground while trying to install among other things a cowl wall system.

6.

There was no adequate fall protection utilized on

the job site in the area where Mr. Bekier fell.

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7.

Defendant John Does #1-20 had a duty to provide a

safe work place for Mr. Bekier and all others lawfully on the premises. hazards Such duty included the elimination of all weather related hazards, and the

including

provision of warning of such hazards. this duty which failure was a

Defendants failed in proximate cause of

Plaintiff's injuries. B. Defendant John Does #1-20 was negligent because,

among other things, they failed to properly secure the area with crawling boards, safety lines, safety belts, or other personal fall arrest systems and failed to provide a safe work place to Mr. Bekier.

9. Does

As a proximate cause of the negligence of John Mr. Bekier has suffered permanent physical,

#1-20,

injuries.

He will continue to suffer physical injuries and

will incur future wage losses.
10. The acts and/or omissions of defendant John Does #1-20 which caused injury to Mr. Bekier were performed or omitted volitionally, with knowledge of the existence of a probability of risk or injury to members of the public, including Mr. Bekier, and with reckless disregard of that risk. WHEREFOPZ , the Plaintiff, Mark Bekier, demands

judgment against defendant John Does #1-20 for compensatory

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damages, interest, and costs of suit.

COUNT THREE Consortium

1.

Plaintiffs, Mark Bekier and Renee Bekier, his wife,

repeat each and every allegation contained in the First and Second Counts as if set forth at length. 2. As a proximate result of the negligence of the

Defendant, Commonwealth Construction Company, and John Does 1-20 the Plaintiff, Renee Bekier, has been deprived of the services and society of her husband, Mark Bekier.
WHEREFORE, the Plaintiff, Renee Bekier, demands judgment against the Defendants, for damages, interest and costs of suit.

DEMAND FOR TRIAL BY JURY PLEASE TAKE NOTICE that Plaintiff in the within action

herby demands a trial jury pursuant to the Rules of this

Court.

Dated:

January 31, 2007

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EXHIBIT B

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JUL-21- 2008 ( MON) 09:31

P. 006/010

UNT'I`ED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE
MARK BEKIER AND RENEE BEKIER C.A. No.1.07-ev-00626-JJF

Plaintiff.

V.

COMMONWEALTH CONSTRUCTION COMPANY, INC.,
Defendantl 1ird-party Plaintiff,
V.

KNZ CONSTRUCTION, INC., Third-Party Defendant.

TF .D PARTY C V

LAM AgAMT KNZ CONSTRUCTION. INC j-UMSDICTION

1.

Jurisdiction is conferred upon this Court pursuant to 28 U.S.C. Section 1332 (a), as there is diversity of citizenship and the matter in controversy exceeds One Hundred Fifty Thousand Dollars ($150,000.00), exclusive of interests and costs.

2.

PlaintiM, Marls and Renee Seller are citizens of the County of Camden, State of New Jersey, rosidiug at 217 Bradley Avenue, Dellmawr, New Jersey.

3.

Dcfeadant(Tllird-Party Plaintiff Cornmonwealth Constructions' prir ^aipal place of business is 2317 Pennsylvania Avenue, Wilmington, DE 19806.

4,

Third-Party Defendant KNZ Construction, Inc. principal place of business is 125 N. Park Street, Dallastown., PA 17313-0238.

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JUL 21-2008 (MON) 09 ;32

P.007/010

5.

KNZ Construction, Ina has conducted substantial business in the state of Delaware. COUNT ONE CQNSTHKCTION SUE NEGLIGENCE

I.

On or about February 2, 2045, Plaintiff Mark Belder has alleged that the negligence of Defendanv Third-Party Plaintiff Commonwealth Construction, Inc, is the direct and proximate cause of Plaintiff's injuries.

2.

At the time of the above mentioned accident, Defeudant/Third-Party Plaintiff,, Commonwealth Construction, Inc., subcontracted KNZ Construction, Inc. To occupy and/or control the worksite in the capacity of a roofing contractor, specifically to install a cawl wall system on the roof of the building.

3.

Third-Party Defendant, KNZ Construction, Inc, owed a duty to those persons engaged in the performance of the construction work, Including the plaintiff', to provide a reasonably sa£e environment, bee from =reasonable hazards, within which to perform the construction work,

4, 5,

Plaintiff Marie Bolder was in the course and scope ofbis job duties when he fK Third-Party Defendant KNZ Construction, Inc. was in control of their employee during the construction period.

6.

Third-Party Defendant KNZ Construction, Inc. bad a non-delegable duty to provide a safe workplace for Mr. Bolder and all others business invitees.

7.

Third-Party Defendant KNZ Constr^on, Inc, was negligent because they failed

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JUL-21-2008( MON) 09132

P . OO8/010

to keep the premises it occupied and/or controlled, in a reasonablely safe condition. Specifically, Third-Party Defendant KNZ Construction, Inc. failed to provide all required safety equipment for its workers, including crawling boards, safety lines, safety belts or other personal fall arrest systems utilized in the construction industry, 8. Third-Party Defendant 1(NZ Construction, Inc. was negligent in failing to inspect the work site for safety deficiencies, failing to provide proper and adequate warnings of these deficiencies, and failing to criminate these deficiencies, whether related to the weather or not. 9. Third-Party Defendant KNZ Construction, Inc, was negligent in failing to warn the Plaintig Mark Belder, of the dangerous fall conditions then existing, and know that they were in violation of OSHA regulations Title 29 Labor 17 and 29 C. F. R. § 1926.20, or alternatively should have known. 10. Thixd-Party Defendant KNZ Construction, Inc. was negligent in failing to adequately inspect the work being performed by others at the work site, which inspection, if adequately done, would have disclosed that the plaintiff's work area or work assignment was unsafe,

It.

Third-Party Defendant KNZ Construction, Inc. was negligent in Wing.to provide an adequate training program to each worker who might be exposed to fall hazards, including Plaintiff Mark Belder, in violation of 29 C, F. R. 1926.503,

12.

Third-Party Defendant KNZ Construction, Inc. was negligent in failing to provide a safe place of employment that was free of hazardous or dangerous conditions likely to cause death or serious physical irdury to employees on the work site in

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JUL;21-2008( MON) 09 ; 32

P,009/010

violation of 29 U. S. C. § 654 (a) (1);
13. Third-Party Defendant KNZ Construction Inc. was negligent in failing to comply with 29 C.F. R. § 1926.20 (b) (2) and applicable industry standards in that it failed to employ a competent person who made &equeat regular inspections for the identification and elimination of recognized fall hazards. 14. As a proximate cause of the negligence of the Third Party Defendant KNZ Construction, Inc., PlaWtHT Mark Bolder, has suffered permanent physical and emotional injuries as well as future wage losses.

REFORE, Defendantal&d-Party Plaintiff demands judgment against Third-Party Defendant for all sums which maybe adjudged in favor of the Plaintiff and respectfully requests that the Court dismiss the complaint and award Defendant/Third-Patty Plaintiff his costs and reasonable attorneys' fees incurred in responding to the complaint, together with such ftuther relief as the Court may deem just and proper.

/ t/ Michael I.Sily=an

WCHABL L SMVERMfAN, ESQUIKE (#3034) SMVERMAN MCDONALD & F'RIEDMAN 1010 N. Bancroft Parkway Suite 22 Wilmington, DL 19805 (302) 888-2900 Attorney for Defendant/Third-party Plaintiff Commonwealth Construction Company

c.19TI rIn

1

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A Z A T= COPY:

ATTRSTt PETER T. DALLEO, (*UR C BY
Deputy 0 ark