Lindler v. District of Columbia, s. 73-1725
| Citation | 164 U.S.App.D.C. 35,502 F.2d 495 |
| Decision Date | 23 August 1974 |
| Docket Number | Nos. 73-1725,s. 73-1725 |
| Parties | Roscoe LINDLER and Tommy L. Davis v. DISTRICT OF COLUMBIA, Appellant. Roger Lee JOHNSON v. DISTRICT OF COLUMBIA, Appellant, Interpace International Pipe & Ceramics Corporation. Doris HEMSLEY, Administratrix of the Estate of Peter Hemsley, Deceased v. DISTRICT OF COLUMBIA, Appellant, Interpace International Pipe & Ceramics Corporation. to 73-1727. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David P. Sutton, Asst. Corp. Counsel, Washington, D.C., for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel and Richard W. Barton, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellants.
James A. Mannino and Gerald Herz, Washington, D.C. with whom Floyd W. Anderson, Washington, D.C., was on the brief, for appellees.
Before McGOWAN, EDWARDS * and TAMM, Circuit Judges.
These consolidated cases concern appeals by the District of Columbia (hereinafter 'the District') from jury verdicts and judgments entered against it in district court. Although the District asserts several points of error, we are not persuaded, and therefore, affirm the judgment.
The essential facts of the case are uncontroverted. In February, 1970 the District contracted with C.F. and B., Inc. and State Construction Corporation, a joint venture (hereinafter 'the contractor'), for construction of the Southeast Relief Watermain, a 66 inch diameter watermain at N Street, Northwest, between First and Sixth Streets. The contractor chose to install the watermain in two sections: the first, approximately 800 feet, to begin at First Street and proceed in a westerly direction to At trial, Mr. Charles Green, Director of Industrial Safety for the District's Minimum Wage and Industrial Safety Board, testified as an expert witness for plaintiffs-appellees that when a pipe has been sealed for an extended period and subsequently opened to permit workmen to enter it, the pipe should first be ventilated pursuant to section 11-21134 of the District of Columbia Safety Standards, Rules and Regulations-- Construction. 1 Mr. Green also testified that this regulation governing the ventilation of 'excavations' applied with equal force to watermain as well as sewer installation. He identified certain hazards that would necessitate ventilating the pipe; to wit, the possible presence of various dangerous gasses, e.g., methane, nitrogen dioxide oxide and carbon monoxide, and/or flammable vapors emanating from material or substances being used in the course of the work. J.A. at 130-33.
New Jersey Avenue; the second to begin at Sixth Street and proceed easterly to meet the first. On or about June 24, 1970 the first section was completed and closed off with a metal 'cap' at the First Street end and with plastic, wood and dirt at the New Jersey Avenue end. This section was not opened again until August 4, 1970, 41 days later, when the metal 'cap' was completely removed and the plastic, wood and dirt partially removed to permit workmen to enter the pipe to clean the interior. Five of the contractor's employees entered the pipe with rags and a single bucket of water for cleaning. Their work progressed unimpeded until approximately 2:30 p.m. when flames erupted at the rim of the open end of the pipe and swiftly engulfed their caecal environment. Three of the workmen, who suffered severe burns, and the administratrix of the estate of a fourth workman, who died as a result of his injuries, brought this negligence action in district court against the District.
Evidence was also presented at trial which established that the District employed a full-time, on-the-job 'inspector' who was charged with the responsibility 'for pointing out to the contractor all instances of faulty workmanship, substandard materials, unsafe practices, or questionable interpretation of plans and specifications.' J.A. at 222-23. Moreover, if the contractor did not take corrective action, the inspector was 'authorized to stop work on the project, and notify (his) supervisor of (the) situation.' Id.
Although there was conflicting testimony concerning the requirement of ventilating the watermain and the possible presence of dangerous gas, 2 the trial court denied both of the District's motions for a directed verdict and sent the case to the jury with carefully drawn special interrogatories which delineated two possible theories of recovery: 1) inherently dangerous activity, and 2) activity necessitating special precautions. 3 On appeal, the District asserts three grounds of error: first, that the trial court erroneously held that the District's liability extends to employees of its contractor; second, that watermain installation is not inherently dangerous work requiring the taking of special precautions, and thus, the trial court erroneously permitted the jury to consider the District's liability for the contractor's negligence; and third, that the evidence failed to establish a negligently caused fire for which the District is responsible. As to the latter two assertions, we think both issues were properly treated as questions of fact upon which there was sufficient evidence of record to necessitate their submission to the jury for resolution. We turn now to the remaining issue, one of first impression in this jurisdiction, of whether the District, as a matter of law, may be held liable to employees of its contractor. 4
Answering all of the special interrogatories affirmatively, the jury found the District liable, and judgment was entered accordingly.
We are urged by the District to adopt the view that one who engages an independent contractor is not liable to the employees of such contractor, inherently dangerous though the work may be. Appellees, of course, maintain that the law is to the contrary. The District supports its position with citation to a plethora of judicial authority, much of which we have found to be inapposite, which has held, on various theories founded in considerations of workmen's compensation, that the contractee's liability does not extend to employees of the contractor. While we have thoroughly considered the District's arguments, we think that the better reasoned view is that employees of the contractor are within the class of persons to whom the contractee, under certain circumstances, may be liable.
Where one contracts for the performance of inherently dangerous work, courts have recognized an exception to the general rule that the contractee is not liable for negligence of its independent contractor. This exception is premised upon the rationale that, because of the inherently dangerous nature of the work, the contractee is obligated to contemplate and guard against such dangers and thus, should not be allowed to 'escape' liability to persons or property negligently damaged in the performance of such work by its contractor. Although unequivocally applicable to third persons who are not employees of a contractor, the exception has become the subject of debate and diverse judicial interpretation when applied to employees of a contractor.
The essence of the controversy stems from a pragmatic concern regarding the contractee's relationship to the contractor's employees via workmen's compensation. The problem was most succinctly addressed in the Restatement (Second) of Torts, Special Note to Chapter 15 (Tent. Draft No. 7, 1962) (hereinafter 'the Tenative Draft'):
The workmen's recovery is now, with relatively few exceptions, regulated Id. at 17-18. Several courts have substantially relied upon this language in holding that employees of a contractor are not among those to whom a contractee is liable. See, e.g., Welker v. Kennecott Copper Company, 1 Ariz.App. 395, 403 P.2d 330, 337-338 (1965); Richardson v. United States, 251 F.Supp. 107, 112-113 (W.D.Tenn.1966); Eutsler v. United States, 376 F.2d 634, 636 (10th Cit. 1967). However, we think it significant that the language was not included in the final draft of the Restatement (Second) of Torts and do...
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