Wade v. Jessop's Tavern, Inc.
N16C-04-107 VLM
| Del. Super. Ct. | Dec 6, 2016Background
- Plaintiffs (husband and wife) sued Jessop's Tavern alleging premises liability after plaintiff Brian Wade, a Waste Industries trash collector, was injured on Jessop's property on April 22, 2014.
- Wade was employed by Waste and was performing trash-collection duties under a service agreement between Waste and Jessop's when his foot caught a concealed hole.
- Plaintiffs sued only Jessop's; Jessop's filed a third-party complaint impleading Waste seeking indemnification from Waste for any liability to Plaintiffs.
- Jessop's asserts (1) express indemnity because Waste allegedly knew of the dangerous condition before the service agreement and (2) implied indemnity based on an alleged duty of Waste to perform work in a workmanlike manner.
- Waste moved to dismiss the third-party complaint under Rule 12(b)(6), arguing the contract’s indemnity clause precludes indemnifying Jessop's for Jessop's own negligence and that contribution/joint tortfeasor theories are foreclosed by Delaware law.
- The court treated the motion as a 12(b)(6) dismissal, found the contract’s indemnity language unambiguous, and granted Waste’s motion as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Waste must expressly indemnify Jessop's under the service agreement for Plaintiffs' claims | Jessop's: indemnity clause makes Waste liable to indemnify Jessop's for losses caused by Waste’s negligent acts/omissions; Waste knew of the hazard pre-contract | Waste: indemnity clause expressly excludes indemnification for losses involving Jessop's negligence; Jessop's claim would seek indemnity for its own negligence | Court: Dismissed — indemnity clause unambiguously bars indemnifying Jessop's for its own negligence; Waste not liable under express indemnity |
| Whether Jessop's can obtain indemnity on theory that Waste’s negligence (e.g., negligent training/supervision) was a proximate cause | Jessop's: Waste’s alleged failure to disclose/supervise may be a proximate cause, so indemnity applies | Waste: allowing this would treat Waste as joint tortfeasor and seek indemnity for Jessop's own negligence; Delaware law prohibits that approach | Court: Dismissed — cannot recharacterize as contribution/joint tortfeasor; Precision Air bars that theory |
| Whether, despite an express indemnity clause, an implied indemnity (workmanlike performance) claim can be pleaded | Jessop's: agreement implies a duty to perform workmanlike and thus implied indemnity should apply | Waste: where express indemnity exists, courts will not expand indemnity by implication; agreement contains no workmanlike indemnity | Court: Dismissed — no implied indemnity where express terms control; Precision Air distinguishable and not met here |
| Whether factual supplementation (owner affidavit) requires conversion to summary judgment | Jessop's: owner affidavit shows pre-contract notice and supports allegation; conversion to summary judgment appropriate | Waste: affidavit merely restates complaint; extrinsic evidence unnecessary; should be decided under 12(b)(6) | Court: Decided under 12(b)(6); affidavit did not add material facts requiring conversion |
Key Cases Cited
- Spence v. Funk, 396 A.2d 967 (Del. 1978) (standard for Rule 12(b)(6) review in Delaware)
- Precision Air, Inc. v. Standard Chlorine of Del., Inc., 654 A.2d 403 (Del. 1995) (bars third-party indemnity claims that effectively treat employer as joint tortfeasor/contribution in certain contexts)
- Waller v. J.E. Brenneman Co., 307 A.2d 550 (Del. Super. 1973) (refuses indemnity when contract language does not cover situations of mutual/contributory negligence)
- Delle Donne & Assocs., LLP v. Millar Elevator Serv. Co., 840 A.2d 1244 (Del. 2004) (courts will not imply indemnity where parties agreed to express indemnification terms)