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Tlapechco v. Handler Corp.4/29/2005
able to the non-moving parties, there is no evidence of a causal connection between Guzman's work and Plaintiff's injury. Plaintiff has presented some expert testimony that the safety rail may have been constructed in an unsafe manner, necessitating its removal by another contractor. Nevertheless, that expert subsequently testified that while the quality of construction might be "interesting", given the fact that the railing was removed prior to the accident: "I really don't think it would change anything that much." Further, Plaintiff's other expert witness opined, based upon the known facts, that the safety railings were constructed in an acceptable manner. This expert also stated that the industry standard requires that the contractor who removes the railings has a duty to replace the railings.
Guzman and Fisher have adequately met their burden of providing evidence to show that the facts are not in dispute and that from those facts, only one conclusion can be drawn. As a matter of law, there is no evidence of negligent conduct by the framing contractor or subcontractor. The framing was completed and approved for payment at least two weeks prior to the accident. All of the evidence supports the moving parties' position that the railings were built. The non-moving parties have failed to present evidence refuting sworn testimony that the railings were removed by someone after the time Guzman was last on the job site.
There is no evidence that Fisher ever was on the job site. The only issue is whether Fisher retained active control over Guzman, the subcontractor, under Delaware's work-area-control test. The Court need not resolve this issue. If Guzman is not negligent as a matter of law, a fortiori, Fisher cannot be found to be vicariously negligent.
THEREFORE , there are no genuine issues of material fact: (1) that the railings were constructed by Guzman, Fisher's subcontractor; (2) that the railings were in place as of the last time Guzman was on the job site; and (3) that someone removed the railings between the time Guzman completed its work and the time of Plaintiff's fall. The moving parties are entitled to judgment as a matter of law. Defendant Agustin Guzman, Individually and D/B/A Guzman Builders' Motion for Summary Judgment and Defendant Leroy Fisher's, Individually and D/B/A/ Leroy Fisher General Contractor, Motion for Summary Judgment are hereby GRANTED.
IT IS SO ORDERED.
Page 1 2 Delaware Personal Injury Attorneys
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