District of Columbia v. Thomas, 21091

• Decision Date: 23 August 1968
• Docket Number: 21092,21126.,No. 21091,21091
• Citation: 130 US App. DC 365,401 F.2d 430
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Shirley A. THOMAS as the Administratrix of the Estate of Donald B. Thomas, Appellee. DISTRICT OF COLUMBIA, Appellant, v. John F. WYNN, Jr., Appellee. Shirley A. THOMAS as the Administratrix of the Estate of Donald B. Thomas, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 US App. DC 365, 401 F.2d 430 (1968)

DISTRICT OF COLUMBIA, Appellant, v. Shirley A. THOMAS as the Administratrix of the Estate of Donald B. Thomas, Appellee.

DISTRICT OF COLUMBIA, Appellant, v. John F. WYNN, Jr., Appellee. Shirley A. THOMAS as the Administratrix of the Estate of Donald B. Thomas, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

Nos. 21091, 21092, 21126.

United States Court of Appeals District of Columbia Circuit.

Argued December 13, 1967.

Decided August 23, 1968.

Petition for Rehearing Denied October 10, 1968.

Certiorari Denied February 24, 1969.

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellant in Nos. 21,091 and 21,092 and appellee in No. 21,126.

Mr. I. Irwin Bolotin, Washington, D. C., with whom Messrs. Philip J. Lesser and Gerald Herz, Washington, D. C., were on the brief, for appellee in No. 21,092.

Mr. Henry Lincoln Johnson, Jr., Washington, D. C., for appellant in No. 21,126 and appellee in No. 21,091.

Before EDGERTON, Senior Circuit Judge, and BURGER and McGOWAN, Circuit Judges.

Certiorari Denied February 24, 1969. See 89 S.Ct. 877.

McGOWAN, Circuit Judge:

These appeals are the issue of a tragic accident which occurred at about 3:30 in the afternoon of August 1, 1960, in the swimming pool located at the Banneker Playground in the District of Columbia. Two lifeguards went to the aid of a swimmer in difficulty because of electric current suddenly coursing through the water. The swimmer was killed, as was one of his would-be rescuers. The other guard was injured. In Nos. 21,091 and 21,092, the District of Columbia appeals from awards in the District Court of damages against it in favor, respectively, of the estate of the deceased lifeguard, and of the guard who survived.¹ In No. 21,126, the first of these appellees complains of the District Court's reduction in amount of the damage award made to it by the jury. We do not reach the questions presented by this last appeal because we have been unable to find any adequate basis for the imposition of liability upon the District of Columbia. We have, accordingly, concluded that the judgments against it must be set aside.

I

The two lifeguards involved in the accident, Thomas and Wynn, were employed as such by Government Services, Inc., a private non-profit corporation which has leased and operated the pool since its initial construction in 1934 by the National Capital Parks Division of the United States Department of the Interior. From 1948 to 1950 the Banneker recreation area — then, as now, situated on land owned solely by the United States — was renovated and new facilities were added. The swimming pool, for example, was completely rewired at that time. At about the same time the entire recreation area, except for the swimming pool, was turned over by the United States to the District of Columbia for management and operation. Government Services, Inc., continued to be the lessee-operator of the pool, with responsibility for its inspection and maintenance. It provided janitorial service, and its own manager was present whenever the pool was in use.

The pool was open three months a year, with admission to the public on a fee basis. The playground area generally was operated the year round by the District. One of the recreational activities sponsored by the District in the summer time was the giving of free swimming lessons on weekday mornings from 9:00 to 12:00. During these hours, the District was required to provide its own lifeguarding service. It did this by hiring, for these hours alone, the regular guards employed by Government Services, Inc. Payment for these services was made directly to the guards by the District. This was the only responsibility for management and operation in respect of the swimming pool assumed by the District during its limited use of the pool.

The accident did not occur in the morning during the District's swimming lesson period. It happened in the afternoon, and it was caused by defective wiring in the underwater lighting system. Water seeping into a lighting installation had rotted the insulation, causing the return wire to burn out. The first segment of this wire immediately attached to the lighting installation was too small under code standards, and, for this reason, it burned out before it could trip the circuit breaker.²

To carry out its pool maintenance and inspection responsibilities in the electrical field, Government Services, Inc., retained an independent electrical contractor. He had inspected the light fixtures and replaced bulbs only a few days before the accident, but had not reported any defective wiring. The pool underwater lights had, at the time of the accident, been inadvertently turned on in the daytime by the electrician's young son, who was helping his father repair lights in the pump house.

Since the accident occurred in the course, and by reason of, their employment, Thomas and Wynn were compensated by Government Services, Inc., as required by the Longshoremen and Harbor Workers' Compensation Act, 33 U.S. C. §§ 901-950 (1964), which Congress has made applicable to private employment in the District. 36 D.C. Code § 501 (1967). Suits were brought, in addition, against Potomac Electric Power Company and the District of Columbia.³ A verdict was directed for the former at the close of all the evidence, but this relief was denied the District. The jury verdicts followed, and the District's motions for judgment notwithstanding were denied.

II

The District Court thought to find a foundation for the District's liability in the circumstance that it maintained "an establishment of a public nature to which it invites the public;" and it characterized the management of the pool as a "dual operation" since "during the morning hours the pool was operated by the District of Columbia." This latter characterization is not borne out by the record facts. The District provided lifeguards during the free swimming classes offered by it on weekday mornings but its management or supervision of the pool did not extend beyond this. It cannot, upon any principle of actual control or operation, be regarded as having exercised such control over the pool in the morning as to make it answerable for an accident occurring in the afternoon.

The District Court, as its first formulation implies, seems to have rested...