IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RYAN REESE, :

: C.A. No: K15C-09-030 RBY

Plaintiff, : In and For Kent County

:

v. :

:

TRIPLE D. TRUSS, LLC, L&S TRUSS :

HAULING, INC., and NORTHEAST :

AGRI SYSTEMS, :

:

Defendants, :

:

and :

:

NORTHEAST AGRI SYSTEMS, :

:

Defendant/Third-Party :

Plaintiff, :

:

v. :

:

JEFFREY BROOKS WALSTON, :

:

Third-Party Defendant. :

Submitted: October 4, 2016

Decided: November 28, 2016

Upon Consideration of Defendant Triple D. Truss, LLC’s

Motion to Dismiss

DENIED

ORDER
Craig T. Eliassen, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for

Plaintiff.

William A. Crawford, Esquire, and Eric Scott Thompson, Esquire, Franklin &

Prokopik, Wilmington, Delaware for Defendant Triple D. Truss, LLC.

Roger D. Landon, Esquire, Murphy & Landon, Wilmington, Delaware for

Defendant L&S Truss Hauling, Inc.

David L. Baumberger, Esquire, Chrissinger & Baumberger, Wilmington, Delaware

for Defendant and Third-Party Plaintiff Northeast Agri Systems.

Jeffrey Brooks Walston, Pro se.

Young, J.
Reese v. Triple D. Truss, LLC, et al. 

C.A. No. K15C-09-030 RBY

November 28, 2016

SUMMARY

Ryan Reese (“Plaintiff”) filed an action to recover from Triple D. Truss, LLC

(“Defendant”); L&S Truss Hauling, Inc.; and Northeast Agri Systems (“CoDefendants”) for injuries he sustained when he fell off of the top of a chicken house

while constructing its roof. Defendant filed a Motion to Dismiss the case for failure

to state a claim. Because it is reasonably conceivable that Plaintiff may recover from

Defendant, Plaintiff’s Complaint states a claim upon which relief may be granted.

Discovery is at a very early stage, and factual issues remain outstanding at this point.

Therefore, Defendant’s Motion to Dismiss is DENIED.

FACTS AND PROCEDURE

On July 8, 2014, Plaintiff was helping to construct the roof of a chicken house.

Defendant either only manufactured the trusses used for the roof of the chicken house

or was involved in the manufacture of the trusses and the construction of the roof

itself with Co-Defendants. That factual determination has not yet been made. Plaintiff

fell from the top of the chicken house as he was constructing its roof. Plaintiff alleges

that as a result of his fall he sustained an L5 spinal fracture and a fractured tail bone.

Plaintiff filed a Complaint on September 22, 2015, alleging that Defendant was

negligent in a variety of regards. A Third-Party Complaint was filed against

Jeffrey Brooks Walston (“Third-Party Defendant”) on November 25, 2015. On

October 3, 2016, Defendant filed a Motion to Dismiss under Superior Court Rule

12(b)(6) in this Court.

STANDARD OF REVIEW

The Court’s standard of review on a motion to dismiss pursuant to Superior

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Reese v. Triple D. Truss, LLC, et al. 

C.A. No. K15C-09-030 RBY

November 28, 2016

Court Civil Rule 12(b)(6) is well-settled. If the complaint and facts alleged are

sufficient to support a claim on which relief may be granted, and factual issues are

outstanding, the motion is not proper and should be denied.

1 The test for sufficiency

is a broad one.

2

If any reasonable basis can be formulated to allow Plaintiff’s

recovery, the motion to dismiss must be denied.

3

DISCUSSION

An employer is vicariously liable for the actions of his employee when his

employee is at fault for an injury, while acting within the scope of employment.

4

Defendant argues that, in this case, Plaintiff is not liable for negligence, since it was

merely a manufacturer, and Plaintiff has not asserted a defect in the manufacturing

process. Plaintiff contends that Defendant is liable since it was responsible for

providing trusses, a crane, and a crane operator to assist in building the chicken house

roof. Since, at this early stage, it is reasonably conceivable that the crane operator

could have been at fault, that the Defendant may have employed the crane operator,

or that the crane operator may have been acting within the scope of his employment;

Defendant could be liable in negligence to Defendant. Therefore, Defendant’s Motion

to Dismiss must be DENIED.

1 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).

2

Id.

3

Id.

4

 Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. June 11, 1997).

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Reese v. Triple D. Truss, LLC, et al. 

C.A. No. K15C-09-030 RBY

November 28, 2016

A. The Crane Operator May be at Fault for the Plaintiff’s Injuries

The elements of negligence are duty, breach, causation and harm.

5

If the crane

operator owed a duty to Plaintiff, may have breached that duty, may have caused

Plaintiff’s injuries, and may have caused harm to Plaintiff, the crane operator could

be liable under a negligence theory.

1. The Crane Operator’s Duty to Plaintiff

A crane operator on a construction site may have a duty to maintain proper

lookout and exercise a degree of care necessary to prevent injury to his fellow

construction workers.

6

In Hitchens v. Cannon & Cannon, Inc., while deciding that a

lower court gave proper jury instructions, the Delaware Supreme Court held that a

crane operator owed the two duties stated above,

7 because doing so would encourage

operators to maintain vigilance in their operation of machinery.

8 There, the crane

operator was attempting to move a beam on the fifth floor of a building while a

construction worker was standing near the beam.

9 The crane operator hit the

construction worker with the beam, causing him to fall four stories to the ground.

10

5

 Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. Aug. 12, 2010).

6

 Hitchens v. Cannon & Cannon, Inc., 588 A.2d 1142, 3 (Del. Mar. 1, 1991).

7

 Id.

8

 Carnes v. Winslow v. Eachus, 182 A.2d 19, 21 (Del. May 22, 1962). Note, the Hitchens

case did not explicitly state a rational. Instead, it cites to a case involving an auto accident which

assigns to the defendant a duty to maintain a proper lookout for the same reason stated in the test.

9

 Hitchens, 588 A. 2d at 1-2.

10

Id.

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Reese v. Triple D. Truss, LLC, et al. 

C.A. No. K15C-09-030 RBY

November 28, 2016

Plaintiff’s set of facts is similar to those found in Hitchens. In this case,

Plaintiff alleges that the crane operator moved a truss that caused a series of other

trusses to fall and knock Plaintiff to the ground. Plaintiff was working in construction

high above the ground, in a situation in which the vigilance of the operators of

machinery around him impacted his safety. Thus, the crane operator in this case could

be shown to have been under an obligation to maintain proper lookout and exercise

a degree of care necessary to prevent injury to his fellow construction workers.

2. The Crane Operator May Have Breached This Duty

The Complaint alleges that the crane operator failed to maintain

communication with Plaintiff and otherwise failed to exercise due care under the

circumstances. If these allegations are true, then the crane operator may have

breached his duty to maintain proper lookout and exercise a degree of care necessary

to prevent injury to his fellow construction workers.

3. The Crane Operator May Have Caused the Harm to the Plaintiff

Delaware follows the “but for” rule of causation. This means “the defendant’s

conduct is a cause of the event if the event would not have occurred but for that

conduct; conversely, the defendant’s conduct is not a cause of the event, if the event

would have occurred without it.”

11

Here there is presently no evidence before the Court indicating that Plaintiff

sustained a relevant injury prior to this accident. Thus, the crane operator may be

found to have caused the harm to the Plaintiff.

11

 Culver v. Bennett, 588 A.2d 1094, 1097 (Del. Mar. 21, 1991).

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Reese v. Triple D. Truss, LLC, et al. 

C.A. No. K15C-09-030 RBY

November 28, 2016

B. The Defendant May Have Employed the Crane Operator

Plaintiff’s Complaint alleges that Defendant was responsible for providing a

crane operator. Defendant has not yet even responded. Certainly, no discovery exists

to determine that issue. Under these circumstances, there is a possibility that

Defendant employed the crane operator.

C. The Crane Operator May Have Been Operating the Crane Within the Scope

of his Employment with Defendant

Conduct is within the scope of employment if it is of a kind that an employee

was employed to perform, it occurs substantially within the authorized time and space

limits, and is actuated at least in part by a purpose to serve the master.

12

The crane operator’s actions in this case could fit within the confines of the

respondeat superior test. At this stage of the proceedings, it is possible that

improperly moving a truss could have been actuated by an employer’s desire that the

crane operator move the truss.

CONCLUSION

Since it is reasonably conceivable at this stage that the crane operator may have

been at fault, that the Defendant may have employed the crane operator, or that the

crane operator may have been acting within the scope of employment; Defendant

could be liable in negligence to Defendant. Therefore, Defendant’s Motion to Dismiss

must be DENIED at this time, without prejudice against filing again following

sufficient discovery and determination of factual issues.

12

 Wilson v. Joma, Inc., 537 A.2d 187, 189 (Del. Feb. 5, 1988).

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Reese v. Triple D. Truss, LLC, et al. 

C.A. No. K15C-09-030 RBY

November 28, 2016

IT IS SO ORDERED.

/s/ Robert B. Young

J.

RBY/lmc

Via File & ServeXpress

cc: Counsel

Jeffrey Brooks Walston (via U.S. Mail)

Opinion Distribution

8