Traudt v. Potomac Elec. Power Co.

• Decision Date: 16 January 1997
• Docket Number: No. 94-CV-781.,94-CV-781.
• Citation: 692 A.2d 1326
• Parties: David TRAUDT, Appellant, v. POTOMAC ELECTRIC POWER COMPANY, Appellee.
• Court: D.C. Court of Appeals

692 A.2d 1326

David TRAUDT, Appellant, v. POTOMAC ELECTRIC POWER COMPANY, Appellee.

No. 94-CV-781.

District of Columbia Court of Appeals.

Argued October 23, 1996.

Decided January 16, 1997.

Marc Fiedler, Washington, DC, with whom Roger C. Johnson and Lisa R. Riggs were on the brief, for appellant.

Charles D. Tetrault, Washington, DC, with whom Mary H. Hirth was on the brief, for appellee.

Before FERREN, STEADMAN, and FARRELL, Associate Judges.

Opinion for the court by Associate Judge FARRELL.

Opinion by Associate Judge FERREN concurring in part and dissenting in part at 1339.

FARRELL, Associate Judge:

This appeal from summary judgment granted to defendant Potomac Electric Power Company (PEPCO) requires us to decide what duties, if any, PEPCO owed to plaintiff Traudt, an employee of an independent contractor, Waco, which PEPCO retained to remove asbestos from energized electrical cables in PEPCO's underground manhole system. Traudt suffered severe burns when a screwdriver he was using pierced the lead insulation covering a live wire and ignited an explosion. After receiving workers' compensation from Waco, Traudt sued PEPCO in Superior Court, alleging primarily that PEPCO breached three duties it owed him despite the intermediation of Waco: first, its statutory duty, under federal and local worksite safety laws, to provide Traudt with a safe place of employment; second, its duty to take special precautions, or to provide in the contract with Waco for the taking of such precautions, against the peculiar risk of harm that removal of a covering from energized, high voltage power lines was likely to create; and third, the duty arising from its (non-negligent) employment of Waco, which itself had been negligent in performing work PEPCO knew or had reason to know was inherently dangerous—this being a form of vicarious liability. The trial court rejected each theory of liability proffered, concluding that PEPCO had absolved itself of any duty it owed the employee of its independent contractor by informing Waco beforehand—a fact not in dispute— that the electric lines would remain energized during the asbestos removal.

We reverse and hold as a matter of law¹ that PEPCO owed Traudt duties under the common law "peculiar risk" doctrine and under its local statutory duty to provide employees—whether its own or those of an independent contractor—with a safe place of employment. As to each of these theories, PEPCO does not dispute that if it owed a duty, there are genuine issues of material fact as to whether it breached the duty so as to cause Traudt's injuries. (We reject PEPCO's argument as to the common law duty that Traudt was contributorily negligent as a matter of law.) We reject Traudt's remaining theories of liability, and, in particular, join the vast majority of state courts which have held that an employer such as PEPCO is not vicariously liable to the employee of an independent contractor for the latter's negligence.

I. The Facts

A. The Contract

PEPCO contracted with Waco, an asbestos abatement company, for the removal of asbestos from PEPCO's electrical cables throughout its manhole system. The contract stated that Waco was an independent contractor "and not an agent of PEPCO." It made Waco "solely responsible for the means, methods, techniques, sequences, and procedures of construction," upon the contractor's "representation prior to submitting his proposal that he had familiarized himself with ... the nature and extent" of the project, the job sites, and electric power. Waco was responsible for "initiating, maintaining and supervising all safety precautions and programs in connection with the Work," and was obligated to "comply with all applicable laws, ordinances, rules, regulations, and orders of any public body" concerning jobsite safety. PEPCO was under "no obligation... to review Waco's compliance with safety requirements or measures."

On the other hand, PEPCO reserved "the right at all reasonable times to inspect and test the Work," and the right "to perform itself, or contract for and perform other or additional work on or near the Work covered by this Contract." Waco was enjoined against doing its work in a way that "hindered the progress or completion" of such other work "being performed by PEPCO ... whether on the Project or not." And PEPCO could direct Waco to "cease work at any point" temporarily to "facilitate the erection of any other work" by PEPCO. Regarding safety, PEPCO required Waco to comply as well with PEPCO's own rules concerning safety and security, and reserved the right to direct removal of any Waco employee from the work. PEPCO could provide additional workers or equipment any time Waco "refused to or neglected to supply a sufficient number of properly skilled workmen or sufficient equipment and/or materials," and PEPCO could stop the work if it was defective or otherwise "failed to satisfy the requirements of the Contract."

B. The Accident

Traudt was hired by Waco in 1989. He had not completed high school and had not taken any course dealing with electricity. Before Waco's bid was submitted, PEPCO explained to Waco officials that the work would be performed on insulated cables that would remain "hot" or energized.² On the other hand, Traudt alleged, PEPCO did not furnish Waco with any written information, rules, or guidelines concerning the handling of PEPCO's power lines. Waco held a four-day asbestos removal training program for its employees which Traudt attended; the employees were to receive additional training on the job. In keeping with the contract ("The contractor shall keep a competent resident Superintendent on the Work at all times"), a Waco employee supervised the work, and PEPCO employees maintained no safety-related presence at the site except to conduct an atmospheric test for gases and visual inspection of the manhole each morning before work began.

Waco gave Traudt a hammer and metal screwdriver as tools and assigned him to work with foreman Ray Fenwick. According to Traudt, Fenwick told him to "take the tip of the screwdriver, stick it underneath one part of the asbestos wrap and pry it up." After the PEPCO inspector had tested the worksite for gases and pointed out which cables were to be cleaned, he left the site and Traudt entered the manhole. He removed the asbestos from once cable and began work on a second. When he used the screwdriver to pry up the wrapping, the tip of the screwdriver pierced the lead insulation of the wiring, causing contact with a live wire. An explosion ensued, the precise cause of which is disputed, but which resulted in burns to Traudt over most of his body.

In suing PEPCO, Traudt alleged inter alia that PEPCO provided him with an intrinsically unsafe place of work by leaving the power lines energized, failed to warn Waco's workers of the dangers associated with electricity or to train them in how to remove materials from live power lines, and failed to provide him or insure that he was provided with safe tools and equipment for working around high voltage electricity.

II. Discussion

A. The Industrial Safety Act

Traudt contends that PEPCO was obligated to provide him with a safe place of employment and insure the use of safe work practices and procedures under the D.C. Industrial Safety Act, D.C.Code § 36-228(a) (1993).³ That section provides:

(a) Every employer shall furnish a place of employment which shall be reasonably safe for employees, shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably safe and adequate to render such employment and place of employment reasonably safe.

An "employer" includes "every person" or other entity "having control or custody of any place of employment or of any employee." Id., § 36-222(1). PEPCO contends that it owed Traudt no duty under the statute because it had no "control or custody" of Traudt as an employee or over the place of employment. As PEPCO concedes, however, control in either aspect—of any employee or of the place of employment—is enough to impose the statutory duty. We hold that PEPCO's ownership of the manhole system and the electric cables, together with the authority it reserved in the contract to monitor Waco's work and perform other work simultaneously at the job site, established its control of the "place of employment" sufficient to make it Traudt's employer for purposes of the statute.

In Martin v. George Hyman Constr. Co., 395 A.2d 63 (D.C.1978), we pointed out that the statutory duty of due care imposed by this statute "is broader than its common law counterpart because it is incumbent not only upon employers as defined at common law but also upon `every person ... having control or custody of any industrial employment, place of employment, or of any employee.'" Id. at 70. Coverage, in other words, does not depend upon a particular degree of control or supervision exercised by the employer over the wage earner or work performed, if alternatively the employer has control of the worksite. Here, PEPCO concededly retained ownership of the workplace and the electric cables, asserting this form of control concretely by dictating that work on the cables was to be done while they were energized. The contract also made clear PEPCO's right to perform other work itself or through others on the job site, and to adjust Waco's scheduling to PEPCO's own need to do unrelated work. With respect to the work Waco would perform, PEPCO insisted on compliance with its own as well as public safety rules and reserved the right to inspect that work, direct stoppage, and require replacement or supplementation of personnel and equipment in case of noncompliance with the contract. This combination of circumstances establishes the requisite employer-employee relationship even though (as PEPCO argues) PEPCO did not hire or pay Traudt or otherwise control the terms of his employment, ...