Traudt v. Potomac Electric Power Co.

TRAUDT, Appellant, David POWER

POTOMAC ELECTRIC

COMPANY, Appellee.

No. 94-CV-781. Appeals.

District of Columbia Court 23, 1996.

Argued Oct. 16, 1997.

Decided Jan. (PEPCO) requires us to decide Company

er duties, plain- any, if owed to what Traudt, an tiff contractor, Waco, which PEPCO retained energized from electrical remove asbestos underground in PEPCO’s manhole cables when system. Traudt suffered severe burns the lead using pierced he was a screwdriver ignited covering a insulation live wire receiving After workers’ com- explosion. Waco, sued PEPCO pensation Court, primarily that Superior alleging him breached three duties it owed first, its despite of intermediation Waco: statutory duty, under and local federal laws, safety Traudt with provide worksite to second, place employment; of its a safe duty special precautions, pro- to to take or in the contract with for the tak- vide Waco precautions, ing peculiar of such covering that risk of harm removal of energized, high power lines voltage from create; third, duty likely to and employment arising (non-negligent) from its Wacо, negligent in of which itself had been performing work knew or had rea- PEPCO inherently dangerous son to know was —this being liability. form of The trial vicarious rejected theory prof- each court fered, concluding that had absolved PEPCO any duty employee it itself owed Fiedler, DC, Washington, Marc with whom informing by its contractor Roger Riggs were on C. Johnson and Lisa R. dispute— beforehand —a fact not Waco brief, appellant. lines ener- that the electric would remain Tetrault, DC, Washington, Charles D. with during gized the asbestos removal. brief, Mary whom H. Hirth was on appellee. law1 reverse and hold as a matter of We under the that PEPCO owed Traudt duties FERREN, STEADMAN, Before and un- “peculiar common law risk” doctrine FARRELL, Judges. Associate statutory duty provide local em- der its in- its of an ployees own or those —whether Opinion Judge for the court Associate place of dependent a safe contractor —with FARRELL. theories, employment. As each of these dispute if it owed a does PEPCO Opinion by Judge Associate FERREN genuine material duty, there are issues of concurring part dissenting duty so as fact as to whether breached the (We injuries. reject PEP- Traudt’s to cause FARRELL, Judge: Associate duty argument as to the common law CO’s contributorily negligent as a appeal summary judgment Traudt was This from law.) reject remain- granted defendant Electric Pow- We Traudt’s Potomac matter Hall, ‘entirely a particular set of circumstances 1. See Croce (citation omitted) (''[T]he question determined question of law ... must be [that] of whether ”). plaintiff only by owes a under a the court’ defendant to a and, particular, ing liability, provide the work. PEPCO could additional theories equipment join majority any time Waco the vast of state courts which workers “re- neglect[ed] supply fuse[d] held that such to or a sufficient have vicariously propеrly [or] number of skilled workmen suf- is not liable materials,” negli- equipment ficient independent contractor for latter’s and/or stop the if it gence. PEPCO could work was defec- satisfy tive otherwise the re- “fail[ed] I. The Facts quirements of the Contract.” A. The Contract B. The Accident Waco, an PEPCO contracted with asbestos hired in 1989. Traudt was Waco He company, for the of as- abatement removal completed high had and had not school electrical cables bestos PEPCO’s any electricity. dealing taken course throughout system. its manhole The con- submitted, Before bid was Waco’s was an tract stated Waco explained to the work Waco officials agent “and not an It PEPCO.” performed would cables that insulated “solely responsible made Waco energized.2 would “hot” or On the remain means, methods, sequences, techniques, hand, alleged, other PEPCO did not construction,” рrocedures upon the con- information, furnish Waco with written “represent[ation] prior to tractor’s submit- rules, guidelines concerning handling the or ting proposal [had] he familiarized [that] power lines. held a four- PEPCO’s Waco ... and himself with the nature extent” of day training program removal asbestos sites, job project, power. the and the electric attended; its employees which Traudt the responsible was for “initiating, Waco main- employees training were to receive additional safety taining supervising precautions and all keeping job. on the In the contract with Work,” programs and with connection the (“The competent keep shall a resi- obligated “comply appli- and was to with all Superintendent dent on Work all the laws, rules, ordinances, regulations, cable and times”), employee supervised a the Waco any public body” job- concerning orders of work, employees PEPCO maintained no and safety. site was under obli- “[n]o PEPCO safety-related presence except at the site to gation compliance to [Waco’s] review atmospheric gases conduct an test and safety requirements or with measures.” inspection visual of the manhole each morn- hand, the other PEPCO “the On reserved ing began. before work right at all to inspect reasonable times and Work,” right “to a and perform gave test the and the Waco Traudt hammer metal itself, perform assigned him or contract for and or as tools to other screwdriver and Ray According additional work on near the Work work covered with foreman Fenwick. Traudt, the by enjoined tip this Contract.” was to told him to “take Waco Fenwick screwdriver, doing way its work that “hin- of the stick it underneath one up.” progress completion” wrap pry the and der[ed] of such of the [аsbestos] “being by inspector tested performed other work ... After PEPCO had PEPCO out Project gases pointed on the or not.” PEP- and whether And worksite for cleaned, any the site CO could direct Waco to “cease work at cables were to be he left point” temporarily “facilitate the Traudt He removed to erection entered manhole. any began work Regarding other work” PEPCO. from one cable and asbestos safety, he required comply PEPCO Waco on second. When used the screwdriver pry concerning up wrapping, tip with rules of the screw- well PEPCO’s own safety security, of the wir- right pierced and reserved driver the lead insulation any ing, causing with wire. An direct removal Waco contact a live [they] working also to show its in and the understand- 2. PEPCO asked Waco would types through ing running “the of cables that would be located in the voltage of the that would be they wrap- manholes and how hаd the asbestos some of the lines.” ping and the conditions of the manholes that work perform other work ensued, of which tor Waco’s explosion precise cause site, job its simultaneously established at the resulted bums disputed, but which employment” suffi- “place of body. control Traudt over most of his pur- employer for make it Traudt’s cient to PEPCO, alleged suing inter alia In poses of the statute. him an intrinsi- provided with George Hyman Constr. by leaving the In Martin cally place of work unsafe (D.C.1978), Co., pointed out energized, warn Waco’s 395 A.2d 63 power lines failed to imposed statutory duty of care due dangers associated with elec- that the workers of the its common “is broader than hy to remove this statute tricity or to train them how lines, counterpart it is incumbent failed to because power from live law materials at common provided only upon employers as defined that he was prоvide him or insure having ‘every person ... working upon also equipment for law but with safe tools and any employ custody of industrial electricity. control or high voltage around em ment, employment, or place of II. Discussion Coverage, in other at 70. ployee.’” Id. words, depend upon particular does not Safety Act A. The Industrial supervision exercised degree of control or Traudt contends that PEPCO wage earner or work employer over the provide place him a safe obligated to alternatively employer has performed, if employment and insure the use of safe work Here, con control of the worksite. procedures the D.C. In practices and ownership workplace cededly retained 36-228(a) Act, Safety dustrial D.C.Code cables, asserting form of and the electric (1993).3 provides: That section dictating concretely by that work control (а) Every employer place furnish a shall they were to be done while the cables was reasonably safe employment which shall be made clear energized. contract also safety use employees, shall furnish and work itself right perform other PEPCO’s adopt safeguards, and shall devices and site, job and to through others on the or methods, means, practices, opera- and use scheduling PEPCO’s own adjust Waco’s tions, reasonably processes which are respect to work. With need to do unrelated employ- adequate to render such safe and in perform, PEPCO would work Waco reasonably place employment ment and as well as compliance with its own sisted on safe. right to safety reserved the public rules and work, and re stoppage, direct “every inspect that “employer” person” An includes or per replacement supplementation custody quire entity “having control or other noncompli in equipment case employment any employ- sonnel and place of or of 36-222(1). combination of Id., This ance with the contract. § contends ee.” PEPCO requisite em circumstances establishes duty Traudt no under the stat- that owed (as though relationship even custody” ployer-employee it had no “control or ute because pay not hire or argues) PEPCO did place of PEPCO or over the Traudt as however, terms of concedes, control the Traudt or otherwise employment. As see, Ins. Mut. e.g., Nationwide any employee employment, aspect in control either —of 318, 323-24, Darden, 503 U.S. enough to Co. v. place employment —is (1992) 1344, 1348-49, 117 L.Ed.2d statutory duty. hold that S.Ct. impose the We party is an em (discussing a hired system “whether ownership of the manhole PEPCO’s law of general common cables, ployee under the together with and the elеctric the contract did not under agency”), and contract to moni- authority it reserved "plan” Secretary a submitted of Labor of argued that PEP- also in the trial court 3. Traudt (1993), part of § pursuant under the 36-1204 breached duties owed to him to D.C.Code CO had Occupational Safety (OSHA), Safely Occupational Act of 1970 and Health Columbia the District of argument on abandoned that agree, but has parties also Act of 1988. Health appeal. however, Traudt's accident at the time of concede, Safety parties the Industrial place. As the approval taken had not years approval repealed after two Act will stand 36-228(a) does not duty under PEPCO’s of Traudt’s work. operative detail direct regulation” of the time, duty subject “duplicative under the it to same PEPCO’s At the Gade, preclude. Congress elements of the meant to is limited to those sort statute opin- (plurality or cus- it has “control at 2384 workplace over which at S.Ct. U.S. ion). tody,” jury should be so instructed.4 and the argument to trial on remaining may properly proceed

PEPCO’s Traudt statute, made 36- against application any duty him under D.C.Code owed brief, 228(a). duty which it in its is that the footnote OSHA, preempted see

imposed has been Risk” B. “Peculiar disagree. must swpra. Courts note We “narrow[ly]” analysis apply preemption him a owed contends that PEPCO Congress intended regard to “whether both doctrine set “peculiar risk” all, questions any pre-emption [and] forth (SECOND) OF TORTS RESTATEMENT invalida concerning scope of its intended (1965), which states: Lohr, Medtronic, Inc. v. tion of state law.” independent contrac- employs an One who — 2240, 2250,135 U.S. —, —, 116 S.Ct. employer should do work which the tor to (1996). explained in P & Z L.Ed.2d 700 We create, during its likely to recognize as Columbia, Co. v. District of risk of progress, peculiar unreasonable (D.C.1979), preemp OSHA “[t]he special pre- unless physical harm to others apply only to specifically tion subsections taken, subject liability for cautions are promulgated by rule un standards [federal] by the ab- harm ‍​‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌​​​​​‌​‌​‌‌​​​​‌​‌‌‌​‌‌‌‍caused to them physical a “standard” is der 655” of OSHA. Such if the precautions of such sence substantially, and directly, “requirement (a) contract that provide fails safety regulates occupational specifically precau- take such the contractor shall v. National Solid Wastes health.” Gade tions, or Ass’n, Management 505 U.S. (1992). 2374, 2388, 120 L.Ed.2d 73 S.Ct. (b) care to reasonable fails to exercise specifically address While OSHA standards manner for the provide in some other safety regard to work with ing employee precautions. taking of such circuits, as in around electrical as well think otherwise Although appears to manholes, in effect at the time were brief, theory is one of direct liabili- in its accident,5 adoptеd at regulation no Traudt’s negli- upon employer’s own ty predicated Congression suggests then the time or since contract, “fail[ing] provide in the gence in duty preempt general of care al intent to manner, the contractor in other that some 36-228(a). Indeed, by § imposed D.C.Code Id., required precautions.” take the shall duty” “general sec contains a OSHA itself a. Comment 36-228(a), § see 29 U.S.C. comparable tion to Traudt, as argues that PEPCO first 654(a)(l)-(2), not a “stan plainly § which is contractor, independent is employee an Moreover, § 655. promulgated under dard” (an “other[]”) duty is to whom not one it not intended explicitly states that is OSHA argument is this section. That owed under enlarge common law or or diminish the to Fry in v. light in of our decision untenable employers and statutory rights or duties of (D.C. Const., Inc., 241 659 A.2d inju Diamond employees respect to work-related 1995). argu rejected identical There we 653(b)(4); § v. see Jones ries. 29 U.S.C. 365, rеspect separate to the but Cincinnati, Inc., ment made with Mass.App.Ct. 589 32 (1992). theory for acts of of 335, Recognizing related N.E.2d 339-40 premises); v. company see also Thoma Kettler "employee,” albeit of 4. Since Traudt was an (same Waco, Bros., Capital (D.C.App.1993) Wall as to reliance on v. A.2d 725 PEPCO’s 632 Kurtz Co., (D.C.Mun.App.1948), house). Paper 61 A.2d 470 prospective purchaser of excluding is the reach of the statute him from workplace (analogous misplaced. at See id. 471 (3); 1926.416(a)(1) See, § e.g., & 29 C.F.R. 5. protect any safety regulation not "intended 1926.956(b)(1). 1926.950(c)(1); § § earners,” wage employees than one other injured on extend to customer hence did not

1333 U.S.App. 244 Corp., Humor v. Good pursuant to or- Wilson independent contractor an (1985) 1293, 310, 298, 757 F.2d by employer. Re- D.C. given negligently ders (“there in local law indications Pointing are sufficient § statement, out that swpra, apply some would suggest [the court] uniformly ... con- [were] “the authorities risk doctrine to the peculiar quoted version of trary” employer’s position, we to the case”) with id. circumstances of holding Supreme example an of “ (not (Bork, J., concurring) theory 757 F.2d at 1311 of liabili- ‘[t]he of Alaska Court adopt Appeals of will that “the Court personal § ... fault on “clear” ty of is of of the expansive version engineer or the Restatement’s part.... employer’s than a narrow rather peculiar an risk doctrine” duty of architect owes involved). duty contractor of risks endangering er to warn independent contractor to avoid ” by negligence.’ Fry, 659 A.2d them its own to limit PEP- responds that deleted) (quoting v. (emphasis at 247 Moloso warning a known duty to that CO’s 1982)). (Alaska State, P.2d fly in face of our consistent hazard would distinguishing the class There is no basis for duty all landowner’s but holding that a duty under “others” to whom a is owed exercising trespassers the broader one is § identical class 410 from thе reached under all of the circum “reasonable care Indeed, Fry, supra, took for § Assocs., stances,” Sandoe Lefta employ- application of 413 to granted the cases), may (citing separate- ees an the need to considerably more than include necessary on ly holding that a trial was persuasive, but give warning. point That is employer’s to the con- whether the directions undisputed facts only decide on the we need “peculiar tractor created a risk” of harm duty was commen of this case that PEPCO’s the latter’s 413. See §in stated 413. PEPCO surate with that A.2d at 249. per dispute the work Waco does 2,400 carrying volts of elec urges to limit the formed on cables PEPCO further us in the sense of duty tricity peculiar risk scope duty owed under 413 to a entailed danger” that was un special, recognizable “a contractor of the warn precautions were job duty speciаl unless by the reasonable peculiar risk entailed —a Restatement, Comment b. says by obtaining taken. it fulfilled Waco’s assur in the contract familiarity electricity during the And while Waco warranted ance of itself with electric process specifically informing that it had “familiarized” bid Waco because of its energized power, dur PEPCO retained Waco power that the lines would be See, Cohen, removal, electricity, ing e.g., Snodgrass expertise asbestos the work. (D.D.C.1951) dispute cannot that its knowl F.Supp. (‘Very nar and PEPCO hazards of work on “proprietor edge peculiar scope” row of real special power lines and the highly-charged property, procures who work to be done contractor, those risks precautions needed thereon entirely reasonable It is the contractor ... of the existence of dwarfed Waco’s. to warn expect tо that PEPCO dangerous on the these circumstances condition [latent] require by contract to either Waco premises ... if the is himself aware of would owner hazard”). take those special precautions or would not had occa take the This court has that PEPCO liability precautions itself. We hold adopt reject sion to or as basis §in 413 of duty set forth § owed Traudt the duties stated in 413 rather particular Compare the Restatement.7 duty limited to warn.6 than a more that, footnote, even as to PEPCO asserts Fry presented that issue 7. In a no occasion to decide 6. Safety peculiar bases there, and risk the Industrial Act negligence employer’s shown because the liability, action should be "Traudt’s of direct trial, creating sufficiently require to was in by com- of law the workers' barred as a matter pensation “peculiar by directing to do the contractor risk” by argument is foreclosed laws.” That way; speak even to of a the work in a certain Builders, Inc., A.2d Meiggs v. Associated duty of that risk to warn the existence receiving (employee workers’ would, Fry. accordingly, have made no sense may "pursue compensation his full common still involving such to do it in a manner reject, further in this connec contractor We § Restatement, tion, supra, Com- undisputed that a risk.” PEPCO’s assertion liability § contributory negligence on under facts ment b. Unlike demonstrate make the part.8 disputed availability precautions are issues of not of to Traudt’s There or training theory. fact to Traudt’s to this The material as work safe is immaterial handling knowledge respect perform with of to was not contracted work Waco power done,” energized, high voltage that, carefully lines and “no matter how work that whether he was even informed the lines If risk of harm. posed an unreasonable energized dining the work. case, scarcely would remain could ever were the (D.C. See, Jones, e.g., A.2d 982 Bell v. allowing done liability for work to be avoid Schneider, 1986); Stager A.2d 1307 energized high-voltage wires. but insulted (D.C.1985). Traudt or his did PEPCO direct either Nor in an unsafe employer perform the work “Negligent C. Direction” him to use a manner. It did not direct “Retained Control” unwrap the as- hammer and screwdriver bestos; indeed, specify at all the did of Traudt asserts two additional theories methods Waco was to use other means and liability on which he con- PEPCO’s direct safety require compliance public than to proceed to tends he should be allowed to safety PEP- own rules. theories, codes PEPCO’s of we hold trial. As each these alleged precautions— failure to take CO’s summary properly grant- judgment was turning power9 or such as off the electric ed. special training or providing requiring contends that PEPCO first potential lia- equipment the basis for its —is §in 410 of owed him the set forth equate bility we cannot but Restatement: “orders and di- failure with the affirmative employer contemplated by § 410 without er- rections” subject liability physical is to the same asing the distinction between section by commit- harm caused an act or omission pursuant to orders or ted the contractor given by employ- negligently directions §on 414 of the Traudt’s reliance er, though act or omission were that It fails for similar reasons. Restatement employer himself. provides that earlier, primary explained this As to an who entrusts work [o]ne Fry, theory liability alleged supra. We contractor, the control but who retains of fact existed held there that triable issues work, subject any part employer as to whether an breached safe- physical harm to others for whose duty by expressly directing an duty to ty employer owes a exercise practiсe, an unsafe ie. erect contractor to use care, which is caused reasonable scaffolding paint upper top a ladder on his control with reason- failure to exercise 659 A.2d at 246-47. windows. [Emphasis added.] able care. Traudt, however, rely cannot on the 36-228(a), D.C.Code duty imposed by pertains It to an Unlike the test under are “control supra, operative words here employs “who either a contractor ” added), which, carefully any part (emphasis ‍​‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌​​​​​‌​‌​‌‌​​​​‌​‌‌‌​‌‌‌‍work to do work no matter how done, place employment. physi not the involves an unreasonable risk “supervisory retained must be employs ... or who a The control cal harm to others control,” a, present safely which is which could be Comment contractor to do work unless, or through provisions the contractual fact that he directs the done but for the alleged duly the of PEPCO’s remedy that the the breach law when the believes Safety person injury”). Act. negligence caused his Industrial of a third Co., dispute as to whether GeorgeHyman supra, is a in the evidence Constr. There 8. Martin v. course, have been feasible. precludes this defense as to this would assertion of

1335 (“[I]n the worksite, (Wyo.1989) situations where owner at the the actual conduct causing control the hazard has maintains over retained harm, exempt the owner should not be the degree control over the at least some liability”). But think this confuses It is the done. manner which work is the with control the nature of contract work enough merely general that he has fact means. The over its methods and right stopped to order the work or re- requesting specifies an owner in bids condi- sumed, inspect progress its or to receive is to be done tions under which the work recom- reports, suggestions to make or necessarily equate supervision with control be does mendations which need not followed, suffi- prescribe operative details. For reasons or to alterations of its itself, general usually stipulated that right is cient to PEPCO deviations. Such employers, it does not removal could not interfere with reserved to but asbestos through as to electricity mean that the contractor is controlled the cir- transmission work, operative That, held, pecu- methods of or as to as we created a cuits. have constructively detail. of harm known liar risk obliged special it was to take Accordingly, un Comment c. retained control require or take precautions Waco to such “operative § der 414 must be control supra, Restatement, precautions. per or the “methods” detail” of the work more, knowledge duty, without But this See, Patterson, e.g., formed. Grammer v. supervisory not the control of the meth- (5th are 639, Cir.1988); 860 644 Fleck v. F.2d manner of 414 con- ods and the work 445, Co., ANG Coal 522 N.W.2d Gasification be templates. Otherwise there would noth- (N.D.1994); 447 Parker Neighborhood v. ing separating the whenever a two theories Inc., Theatres, Md.App. 547 A.2d designed job potentially hazardous could (1988). 1080, 1085 safely. more Traudt has not shown that Here, out, pointed PEPCO’s contract “operative retained control of “solely with made the contractor re- Waco § 414 requires. detail” that methods, sponsible means, for the tech- niques, sequences, and procedures” Liability D. Vicarious Responding ques- removal. asbestos to the deposition gave tion in PEPCO, whether PEPCO Finally, Traudt asserts that re “any Waco directions or fault, or instructions gardless vicariously of its own guidelines regard asbestos to how the negligence. liable for Waco’s See Restate removed,” 427; was to be Waco’s Vice-President §§ supra, ment, Lindler v. 416 and They looking answered “No. at us as Columbia, were U.S.App. D.C. District professionals (1974). to tell out, them how to remove points Traudt 502 F.2d 495 As it and how to do it.” retained While PEPCO repeatedly we have held work, right inspect changes, direct employs who contrac- [o]ne replacement and order danger involving special tor to do work fall equipment, squarely these within employer knows or has to others which the “general right[s] usually to em- reserved know to in or normal reason to be inherent liability. ployers” that do not create work, contemplates or which he officials’role at the worksite consist- contemplate making when has reason only testing explosive ed manhole for contract, subject phys- gases morning letting the work each before caused others ical harm to such begin. pre- reasonable contractor’s to take failure danger. cautions such however, argues, PEP- Currier, 205, 209 indeed, Levy CO con 587 A.2d retained exclusive control — added) Restatement, job: (emphasis su trol —of a critical feature of the (quoting 427). Columbia v. de-energize pra, decision whether to the wires See also District of (D.C.1992); Howell, during support There A.2d Wash the work. is some See, argument. e.g., Stephenson ington v. Pa Metro. Area Transit Auth. L’En Inc., Co., Light Properties, P.2d Plaza Power & cific fant ‘“personal of ” fault on the (D.C.1982). in In this context responds that none (quoting Moloso non-binding employer’s part,’ case of id. at 247 (except the these cases Lindler) State, omitted), consid- person supra; to whom we held italics we was the argument of an inde- rejected an the the was owed ered and contractor; by employees that we have not consid- pendent “may invoked not be class to include in to extend that Id. at 246. And independent ered whether contractor.” join great should the employees; rejеcted employer’s and that we the reliance doing so we rejecting that, in vicarious lia- majority of courts decision Supreme Court on a Wisconsin setting where the bility workplace in the in of Columbia Circuit unlike the District injured employee has the remedies both Lindler, liability supra, had limited vicarious employer compensation from his injured workers’ inherently dangerous work against the contrae- fault-based suit and Although we general public. members of the in response that tee/employer. To Traudt’s a “well-rea- that Lindler was commented in of vicari- this issue favor fact we resolved if were said that “even we opinion,” soned we rejoins liability Fry, supra, in ous reject disposed appropriate [it] in an case “passed upon” and so was not that the issue analysis, court’s in favor of’ the Wisconsin Fry. was not decided Fry, which involved moot that issue was negligent directive” —an issue employer’s “an 1. in the or even mentioned” “not discussed first, therefore, the consider We dealing vicarious lia- opinion Wisconsin Fry, mindful that precedential significance of bility. n. 7. Id. at 247 properly of stare decisis is never rule “[t]he treated, Fry without differen- Later in as put forward invoked unless the decision liability, tiating direct and vicarious between applied judicial mind has been precedent the liability for alleging Fry, Jr.’s two counts precise question,” passed upon the to and 427) (§§ pecu- danger 416 and and inherent merely assumed point and that of law “[a] 413). (§ us was The issue before liar risk discussed, opinion, is not authorita court, summary granting trial whether the Club, v. Sierra tive.” District Columbia defendant, properly had judgment for the (citations and A.2d scaffolding painting are “that concluded omitted). con quotation marks We internal inherently dangerous activities.” Id. at issue at Fry does not resolve the clude proposition сited the settled We hand. hazardous, work, can intrinsically though not previously, there was Fry, In as indicated done, in which it is the manner become so jury could credit that the evidence which a evidence of pointed again to the and we general contractor had directed sub-con- only tolerated that the “not record scaffolding place top tractor to a ladder actually methodology direct- perilous but in- upper windows paint some to reach it.” to follow contractor] ed [the renting lift.” The result- stead of a “scissors Nonetheless, of the trial our reversal Id. injured contrac- ing collapse of ladder rule that premised court was on the Jr., brought Fry, later employee, who tor’s general injuries contractor. We suit caused employer is liable [a]n “Fry, depends case pointed out that Jr.’s con negligence of an by the alleged in- entirely, on largely, [the] if not performed tractor where the work scaffolding Fry, to use the dangerous. Levy struction to Jr. inherently ladder”; indeed, Lindler, that that evi- Currier, 209]; we said A.2d [at us that the issues before dence “so dominates ..., U.S.App. supra D.C. complaint] all but counts [of the five in favor of (applying this rule F.2d at 495 single 659 A.2d at merge into a claim.” employee). independent contractor’s clear, instruction made As our discussion language, part argues that this Id. Traudt Jr., example Fry, proven, if was a classic holding, us in this case. binds of the court’s employer who “orders direct however, stated, in this nowhere As contractor to do or directs” pass opinion the court consider did Id. at 246-47. in an unsafe manner. work 1337 prevails if vi- of the distinction direct and nature upon the distinction between Traudt, rejected. like position is liability; as to “inherent Traudt’s carious we reversed (di- (vicarious) public, free any injured “peculiar risk” mеmber danger” rect) id., negli reasons,” company’s own namely, the PEPCO for the for “similar sue inju having for his gence despite recovered employer’s knowledge express directive compensation stat evidentiary tri- the workers’ furnished the basis for ries under Builders, Meiggs theory. Only in v. Associated al on either the earlier ute. See Inc., 7; Hy George v. supra note DiNicola footnote 7 had we even adverted to vicarious Co., (while A.2d 670 liability separately using that man Constr. 407 never Act). term) Longshoreman’s distinguishing (precedessor court’s While the Wisconsin prove fault to recover inherently dangerous work lia- of the need to treatment of relieved insurance, theory employer’s bility negligence through his from the direct simultaneously bring this suit us.” Id. at could dominate[d] “so the issues before provide for its failure Although approvingly 247. we cited Lindler (or discussion, recognized workplace that a and take re him with а safe but without pecu reject special precautions against the “hypothesized quire) readiness” to it in favor vice-versa, job. Viewing the matter holding, or had liar risks of the of the Wisconsin negligent Traudt criticizes bearing light, no on the directive this the distinction Fry. 247 “artificial” than the one underlying all of the counts Id. at seems much less best, therefore, very employ- position: between an or n. 7. At the necessitated liability strictly negligence dinary employee employee and an of an inde er’s “point pendent a of law both are entitled independent contractor was contractor. While [Fry]” relinquishing the merely passed compensation, assumed in and not to workers’ Club, respective employers for upon right or decided there. Sierra 670 to sue their 36-304(a) (b) accordingly negligence, & A.2d at 360. We turn to the see D.C.Code (1993), the former under merits of the issue. the latter but not may still sue in tort for the Traudt’s view by way employer’s negligence of vicarious Traudt contends there is no sound reason policy rea liability. Traudt offers no sound permitting non-employee, say, passer- why fact alone of an son by, inde- to hold a contractee liable for the relationship yield should that dis pendent negligence perform- contractor’s tinction. ing dangerous not an work but reasons, the For and similar Treating the latter. the two classes of victim considering majority of state courts equally identically are “within vast both —since indepen employers in his view com- issue have held the ambit risk” —would vicariously liable to jurisdiction are not port “the trend in this dent contractors independent contractor among abolish artificial distinctions tort vic- 427 of the Restatem point under sections 416 and tims based on their status.” The first majori- mind, however, ally ourselves with that limited ent.10 We to be borne Inc., See, Soldotna, Gateway Properties, 809 City Oppenheimer e.g., 553 P.2d v. Morris v. (Alaska 1976); (Mo.1991); Electric 474 Jackson v. Petit Jean Anderson v. Nashua S.W.2d 384 506, (1980); Co-op., 420, (1994); 66 270 Ark. 606 S.W.2d Corp., 275 246 Neb. 519 N.W.2d Court, 689, Superior Rinehart, 557, v. 5 Cal.4th 21 Cal. Privette 99 Nev. Power Co. v. Sierra Pacific 72, (1993); Ray Rptr.2d v. Schneid 854 P.2d 721 (1983); Inspection Donch v. Delta 665 P.2d 270 (1988); er, 660, Conn.App. 548 A.2d 461 16 Servs., Inc., 567, N.J.Super. A.2d 925 165 398 Mills, Inc., 374, Regulus 113 Idaho Peone v. Stud Norman, Div.1979); (Law 75 N.Y.2d Whitaker v. (1987); v. New York Blower 744 P.2d 102 Johns (1989); 86, 779, 551 N.E.2d 579 552 N.Y.S.2d Co., (Ind.Ct.App.1982); 442 N.E.2d 382 Dillard Co., supra; Cur ANG Coal Fleck v. Gasification ‍​‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌​​​​​‌​‌​‌‌​​​​‌​‌‌‌​‌‌‌‍Strecker, 704, (1994); 255 Kan. 877 P.2d 371 v. Co., App.3d Lathrop 65 Ohio less v. Coop. Corp., King Shelby Elec. v. Rural (1989); Puget Sound Tauscher v. N.E.2d 1367 (Ky.1973); Rowley City v. Council S.W.2d 659 Co., Light Wash.2d 635 P.2d Power and Baltimore, (1986); 505 A.2d 494 305 Md. Co., (1981); Casualty Wagner Continental Co., Mass. v. Barletta Vertentes (1988); Jones 143 Wis.2d 421 N.W.2d Inc., (1984); Conover v. Northern States N.E.2d 500 U.S.A., (Wyo.1986). 718 P.2d 890 Chevron Co., (Minn.1981); Zueck 313 N.W.2d 397 Power ty. policy distinguishes employees con- decision to do so reflects Our Baker, directly A.2d judgment, working see Williams v. from for tractors those the (D.C.1990) (“[t]he 1062, of a existence inherently dangerous party for which work is ultimately from duty law] tort results [in performed”). made and the policy by decisions the courts all of the We need rehearse reasons In legislatures”), court’s alone. but the rejecting in the set forth decisions vicarious Columbia, primary the source District of the They liability in this context. are convinc recovery injuries arising from worker ingly stated such as Privette decisions Compensa- employment the is the Workers’ (California), (Massachusetts), Fleck Vertentes recovery although may tion Act. “This had be (North Dakota), (Con Ray v. Schneider injury brought by employ- the about the necticut), supra all note 10. On the one any negligence carelessness and absent ee’s hand, emphasize these courts the “indefensi Rowley City employer.” on the employees ble status distinction between Baltimore, supra note Council independent employees an contractor departure The reason A.2d at 500. directly working general for the contractor” principles “quid pro from tort basic is the ” liability E.g., create. that vicarious would “in quo underlying philosophy the statute: Vertentes, J., (Abrams, 466 N.E.2d at 507 purchase return for the of insurance Privette, Cal.Rptr.2d concurring); at

job-related injuries, employer the receives distinction, P.2d at 729. That as the immunity; giving up the tort return for said, Supreme Court of has California would right employer, employee re- to sue the the “produce[ the result that a non- ] anomalous Meiggs, sure su- ceives swift and benefits.” injury an negligent person’s liability for is pra Meiggs at In note 545 A.2d negli greater person than that the whose rejected argument the the statute was that gence actually injury,” caused the shielded “negligent any to relieve actors” intended remedy by provi is liability except the latter the exclusive from common law tort insurance, id,.; 79, 854 required purchase to Id. at P.2d at employer sion statute. result, contrary, in it “a con- on the we discerned 728. And to avoid that legislative рolicy permit employ- an scious to employers independent contractors who remedy ee full pursue to his common law dangerous may work perform inherently employee negli- believes that the when indemnity demand from those contractors injury.” gence person third of a caused recovery by the any obtained contrac- point nothing Id. But Traudt at 638. can to expose employees. This inde- tor’s would bespeaks to let the statute an intent potential liability pendent contractors to employer’s negligence furnish immunized employers greater far than that of other non-negligent party’s for a third basis by compensation workmen’s covered stat- true, liability. opposite for it Just seems utes. hardly consistent with the statute Vertentes, 466 It is N.E.2d at 503. not an appellant, “simply employ- an because he was say independent answer to that the contrac- contractor, independent ee of an should “voluntary” duty will stem its con- tor’s from placed position in a than if he had better indemnify agreement employ- tractual to statutory employ- employee been of [the an liability still er], er. It is vicarious drives recovery case his would be bargain. anomaly thus remains question pro- limited without to the benefits statutory duty employer an who meets its Compensation Act.” by vided the [Workers’] liability provide insurance is shielded Rowley, at 500. See also Vertentes Co., negligence, independent con- supra at for its but an note 466 N.E.2d Barletta (Abrams, J., (“only fortuity concurring) tractor who does the same is not.11 Lindler, U.S.App. quo required by law.” 164 D.C. Circuit in is not The District Columbia adopting liability em- F.2d at overlooks the fact supra, in the at 499. This vicarious context, quo precisely independent ployment quid pro that it is contractor stated: "The compensation compensatiоn, “required purchase law” in- contribution to workmen's Columbia, negligence by may a correct who be liable for in the District of is not surance also least indemnity. quid pro operation non-liability of vicarious rationale for where that time, degree of care- point “sanctioning At the same these courts out an incremental liability] recovery specified that “denial of toward cat- [vicarious lessness defendant for an egories liability, by of victims.” Id. Vicarious encourage does not an to evade contrast, duty pay entails “a unrelated to liability through the of a contract device plaintiff by breach of First, contractor.” Id. since party.” liable Id. are satisfied that the We price the contract will into take account the in Traudt’s remedies available potential contractor’s workers’ expansion position require no of the class to liability, сompensation employer “[t]he §§ under 416 and 427 whom duties are owed contractor, effect, independent pays in employees independent of contrac- include compensation premium through workmen’s tors.13 Id.; Privette, price.” the contract 21 see 79, Second, Cal.Rptr.2d at 854 at 728. P.2d III. stressed, employer as we have remains triable issues of has demonstrated subject liability in negligence for its own fact on whether PEPCO breached a hiring retaining an contrac- Safety him under the Industrial Act and tor, 248; Fry, 659 A.2d at Restatement, judg- § under 413 of the Restatement. The 411, § supra, as well as on the fault-based is, Superior accordingly, ment of the Court A, B, grounds in parts treated and of this C opinion; may vicariously and it liable to Reversed. general public. Levy members of the v. Cur- rier, supra. FERREN, Judge, concurring Associate dissenting part: and principle liability

“The for indi norm, vidualized fault is the whereas vicari join opinion exсept I in the for the court liability regarded ous exceptional ‍​‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌​​​​​‌​‌​‌‌​​​​‌​‌‌‌​‌‌‌‍‘is as an liability, for Part II.D on vicarious ” Schneider, Ray 10, supra solution.’ note respectfully I dissent. (citation omitted). 548 A.2d at 466 ex Contrary majority’s analysis in Part ception inherently dangerous for work com II.D.l, Fry I believe that v. Diamond ports policy with sound social insofar as it Construction, Inc., (D.C.1995), 241 659 A.2d protects general public members of the “who unequivocally adopted this court an- rule have no direct involvement with the hazard Columbia, nounced Lindler District of activity, only ous incidentally exposed are 35, (1974), U.S.App. 164 D.C. 502 F.2d 495 its risks and insuring have no direct means of authorizing contractor’s em- themselves loss.” Jackson v. Petit ployee employer to sue the contractor’s 10, Co-op., supra Jean Electric note 606 negligence under Restatement (Seoond) justifies at policy S.W.2d 69. But no similar (1965), 427 based on vicarious liabili- Torts its extension to employees ty inherently dangerous attributable to activ- contractors, thereby “exempt[ing] single ity. On that issue we said in full: class of statutorily from the Danger D. Inherent and Peculiar Risk of compensation.” mandated limits of workers’ Harm. Privette, 21 Cal.Rptr.2d at 854 at P.2d complaint, In and of his 729. This court has shown Counts IV V “readiness to illogical Fry, alleged that inequitable eradicate status Jr. the work to be done dis Vertentes, among plaintiffs,” inherently dangerous exposed tinctions tort and supra (Abrams, peculiar note 466 at N.E.2d 505 him to a risk of harm. An J., concurring),12 injuries employer but it has done so to avoid is caused liable See, Sandoe, e.g., supra, danger approach” at 738 “zone of as basis for tort of distress). (pointing previous negligent out this infliction of emotional court’s elimination of common law distinction between invitees and adopting reason, licenses and a reasonable care standard reject 13. For the same Trаudt's reli- persons lawfully upon premises); as to (abnormally dangerous activity), ance on 427A Baker, not, event, supra, (reject- although Williams v. 572 A.2d 1062 he did assert ing "physical impact" theory rule in favor of broader in the trial court. (Second) independent con (1985); negligence of an Restatement (1965). Toets, § 413 cmt. b. performed the work

tractor where dangerous. inherently the contractor omitted). (footnote Fry, A.2d at 249 (D.C. Currier, A.2d Levy v. citations, it is From the discussion Lindler, 1991); supra, note V, in Counts IV clear that we ruled F.2d at 495 U.S.App. D.C. liability for inher- vicarious respectively, on indepen (applying this rule in favor activity (citing ently dangerous employee). The trial contractor’s dent Howell) Lindler, on Taylor, and Levy, seen, held that scaf judge, as we have risk liability “peculiar unreasonable direct inherently folding painting are (citing harm” under Wil- physical dangerous activities. ).1 Indeed, last sentence of all but the son entirеly Fry’s Count analysis focused our application of the “inherent But the IV, recognized the rule expressly where we intrinsical danger” not limited to rule is on an imposing vicarious ly District Colum hazardous work. indepen- injuries employee of an (D.C. Howell, 607 A.2d bia v. carrying negligence dent contractor whose 1992). contrary, applies, rule On inherently dangerous work caused out alia, spe has where “the inter Fry, A.2d at 249. injuries. See contemplate [of such a risk cial reason to particular circum harm] under majority’s in Part II.D.2 for reasons The work is to be stances under which the liability are withholding such vicarious Levy, supra, 587 A.2d at done.” I believe that such unpersuasive, but (quoting only by going (Second) en our result can be achieved Restatement (1965)). Fry In the applicable cmt. b banc to overrule the ToRTS case, way of the result presently Bamas testified that he stands in the present Ryan, v. danger posed by majоrity proposes. See M.A.P. was well aware (D.C.1971). short, In I believe procedure. 285 A.2d 310 “scaffolding and ladder” announcing majority from Sr., is barred only the According Fry, Bamas not regard. in this imposes result it methodology but perilous tolerated the Fry, to follow it. actually directed Sr. particular kind work

“Whether essentially

inherently dangerous is a rel- upon facts

ative determination based Tellez, Taylor v. particular case.” (D.C.1992) (citations PARTNERSHIP, MIDAN LIMITED omitted). danger [a] existence of “The Appellant, employer are knowledge of it jury.” normally questions of fact for the Howell, at 505. Given supra, 607 A.2d COLUMBIA, Appellee. OF DISTRICT testimony, genuine were Fry, there Sr.’s No. 95-TX-1681. entry precluding fact issues of material ‍​‌​‌‌​‌‌‌‌​‌​​‌‌​‌‌‌​​​‌​​​​​‌​‌​‌‌​​​​‌​‌‌‌​‌‌‌‍Fry, summary judgment on Jr.’s Appeals. of Columbia Court District activity. “inherently dangerous” claim of reasons, we conclude For similar 29, 1997. Argued Jan. improperly en- summary judgment was 31, 1997.* Decided Jan. Fry, related claim under Jr.’s tered See Wilson “peculiar risk” doctrine. U.S.App. Corp., 244 Humor Good 298, 309, F.2d D.C. See Restatement deal with vicarious

1. We did not distinguished (Second) "peculiar physical harm” under 416 cmt. c. risk of of Torts * as a Mem- disposition this case was issued

Case Details

Case Name: Traudt v. Potomac Electric Power Co.

Court Name: District of Columbia Court of Appeals

Date Published: Jan 16, 1997

Citation: 692 A.2d 1326

Docket Number: 94-CV-781

Court Abbreviation: D.C.