Lead Opinion
This appeal from summary judgment granted to defendant Potomac Electric Pow-
er 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 Wаco 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 law
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 оf PEPCO.” It made Waco “solely responsible for the means, methods, techniques, sequences, and procedures of construction,” upon the contractor’s “represent[ation] 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 job-site safety. PEPCO was under “[n]o 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 perfоrm other or additional work on or near the Work covered by this Contract.” Waco was enjoined against doing its work in a way that “hinder[ed] the progress or completion” of such other work “being performed by PEPCO ... whether on the Project or not.” And PEP-CO 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 “refuse[d] to or neglect[ed] 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 “fail[ed] 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.
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 one 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
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).
(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, аnd 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 sitе, 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.,
PEPCO’s remaining argument against application of the statute, made in a footnote in its brief, is that the duty which it imposed has been preempted by OSHA, see note 3, swpra. We disagree. Courts must apply preemption analysis “narrow[ly]” with regard both to “whether Congress intended any pre-emption at all, ... [and] to questions concerning the scope of its intended invalidation of state law.” Medtronic, Inc. v. Lohr, — U.S. —, —,
Traudt may properly proceed to trial on any duty owed him under D.C.Code § 36-228(a).
B. “Peculiar Risk”
Traudt contends that PEPCO owed him a duty under the “peculiar risk” doctrine set forth in RESTATEMENT (SECOND) OF TORTS § 413 (1965), which states:
One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.
Although PEPCO appears to think otherwise in its brief, this theory is one of direct liability predicated upon the employer’s own negligence in “fail[ing] to provide in the contraсt, or in some other manner, that the contractor shall take the required precautions.” Id., Comment a.
PEPCO first argues that Traudt, as an employee of an independent contractor, is not one (an “other[]”) to whom a duty is owed under this section. That argument is untenable in light of our decision in Fry v. Diamond Const., Inc.,
PEPCO further urges us to limit the scope of the duty owed under § 413 to a duty to warn the independent contractor of the peculiar risk entailed by the job — a duty it says it fulfilled by obtaining Waco’s assurance of familiarity with electricity during the bid process and specifically informing Waco that the power lines would be energized during the work. See, e.g., Snodgrass v. Cohen,
Traudt responds that to limit PEP-CO’s duty to that of warning of a known hazаrd would fly in the face of our consistent holding that a landowner’s duty to all but trespassers is the broader one of exercising “reasonable care under all of the circumstances,” Sandoe v. Lefta Assocs.,
C. “Negligent Direction” and “Retained Control”
Traudt asserts two additional theories of PEPCO’s direсt liability on which he contends he should be allowed to proceed to trial. As to each of these theories, we hold that summary judgment was properly granted.
Traudt first contends that PEPCO owed him the duty set forth in § 410 of the Restatement:
The employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself.
As explained earlier, this was the primary theory of liability alleged in Fry, supra. We held there that triable issues of fact existed as to whether an employer breached this duty by expressly directing an independent contractor to use an unsafe practice, ie. erect a ladder on top of scaffolding to paint upper windows.
Traudt, however, cannot rely on the duty imposed by § 410. It pertains to an employer “who either employs a contractor to do work which, no matter how carefully done, involves an unreasonable risk of physical harm to others ... or who employs a contractor to do work which could be safely done but for the fact that he directs the contractor to do it in a manner involving such a risk.” Restatement, supra, § 410, Comment b. Unlike liability under § 413, the availability or not of precautions to make the work safe is immaterial to this theory. The work Waco contracted to perform was not work that, “no matter how carefully done,” posed an unreasonable risk of harm. If that were the case, PEPCO could scarcely ever avoid liability for allowing work to be done on energized but insulted high-voltage wires. Nor did PEPCO direct either Traudt or his employer to perform the work in an unsafe manner. It did not direct him to use a hammer and screwdriver to unwrap the asbestos; indeed, it did not specify at all the means and methods Waco was to use other than to require compliance with public safety codes and PEPCO’s own safety rules. PEP-CO’s alleged failure to take precautions— such as turning off the electric power
Traudt’s reliance on § 414 of the Restatement fails for similar reasons. It provides that
[o]ne who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. [Emphasis added.]
Unlike the test under D.C.Code § 36-228(a), supra, the operative words here are “control of any part of the work ” (emphasis added), not the employee or place of employment. The control retained must be “supervisory control,” Comment a, which is not present unless, through the contractual provisions or
at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail.
Comment c. Accordingly, retained control under § 414 must be cоntrol of the “operative detail” or the “methods” of the work performed. See, e.g., Grammer v. Patterson,
Here, as pointed out, PEPCO’s contract with Waco made the contractor “solely responsible for the means, methods, techniques, sequences, and procedures” of the asbestos removal. Responding to the question in deposition whether PEPCO gave Waco “any directions or instructions or guidelines with regard to how the asbestos was to be removed,” Waco’s Vice-President answered “No. They were looking at us as the professionals to tell them how to remove it and how to do it.” While PEPCO retained the right to inspect the work, direct changes, and order replacement of employees or equipment, these fall squarely within the “general right[s] ... usually reserved to employers” that do not create § 414 liability. PEPCO officials’ role at the worksite consisted only of testing the manhole for explosive gases each morning before letting the work begin.
Traudt argues, however, that PEP-CO retained control — indeed, exclusive control — of a critical feature of the job: the decision whether to de-energize the wires during the work. There is some support for this argument. See, e.g., Stephenson v. Pacific Power & Light Co.,
D. Vicarious Liability
Finally, Traudt asserts that PEPCO, regardless of its own fault, was vicariously liable for Waco’s negligence. See Restatement, supra, §§ 416 and 427; Lindler v. District of Columbia, 164 U.S.App. D.C. 35,
[o]ne who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.
Levy v. Currier,
1.
We consider first, therefore, the precedential significance of Fry, mindful that “[t]he rule of stare decisis is never properly invoked unless in the decision put forward as precedent the judicial mind has been applied to and passed upon the precise question,” and that “[a] point of law merely assumed in an opinion, not discussed, is not authoritative.” District of Columbia v. Sierra Club,
In Fry, as indicated previously, there was evidence which a jury could credit that the general contractor had directed the sub-contractor to place a ladder on top of scaffolding to reach and paint some upper windows instead of renting a “scissors lift.” The resulting collapse of the ladder injured the contractor’s employee, Fry, Jr., who later brought suit against the general contractor. We pointed out that “Fry, Jr.’s case depends largely, if not entirely, on [the] alleged instruction to Fry, Jr. to use the scaffolding and ladder”; indeed, we said that that evidence “so dominates the issues before us that the five counts [of the complaint] all but merge into a single claim.”
Later in Fry we treated, without differentiating between direct and vicarious liability, Fry, Jr.’s two counts alleging liability for inherent danger (§§ 416 and 427) and peculiar risk (§ 413). The issue before us was whether the trial court, in granting summary judgment for the defendant, had properly concluded “that scaffolding and painting are not inherently dangerous activities.” Id. at 249. We cited the settled proposition that work, though not intrinsically hazardous, can become so by the manner in which it is done, and we pointed again to the evidence of record that the employer “not only tolerated the perilous methodology but actually directed [the independent contractor] to follow it.” Id. Nonetheless, our reversal of the trial court was premised on the rule that
[a]n employer is liable for injuries caused by the negligence of an independent contractor where the work performed by the contractor is inherently dangerous. Levy v. Currier, 587 A.2d [at 209]; Lindler, supra ..., 164 U.S.App. D.C. at 38,502 F.2d at 495 (applying this rule in favor of independent contractor’s employee).
Id. Traudt argues that this language, as part of the court’s holding, binds us in this case.
As stated, however, nowhere in this part of the opinion did the court consider and pass
2.
Traudt contends there is no sound reason for permitting a non-employee, say, a passerby, to hold a contractee liable for the independent contractor’s negligence in performing dangerous work but not an employee of the latter. Treating the two classes of victim equally — since both are identically “within the ambit of risk” — would in his view comport with “the trend in this jurisdiction to abolish artificial distinctions among tort victims based on their status.” The first point to be borne in mind, however, is the limited nature of the distinction that prevails if Traudt’s position is rejected. Traudt, like any injured member of the public, was free to sue PEPCO for the company’s own negligence despite having recovered for his injuries under the workers’ compensation statute. See Meiggs v. Associated Builders, Inc., supra note 7; DiNicola v. George Hyman Constr. Co.,
For this and similar reasons, the vast majority of state courts considering the issue have held that employers of independent contractors are not vicariously liable to the еmployees of the independent contractor under sections 416 and 427 of the Restatement.
We need not rehearse all of the reasons set forth in the decisions rejecting vicarious liability in this context. They are convincingly stated in decisions such as Privette (California), Vertentes (Massachusetts), Fleck (North Dakota), and Ray v. Schneider (Connecticut), all supra note 10. On the one hand, these courts emphasize the “indefensible status distinction between employees of an independent contractor and employees working directly for the general contractor” that vicarious liability would create. E.g., Vertentes,
employers of independent contractors who perform inherently dangerous work may demand indemnity from those contractors for any recovery obtained by the contractor’s employees. This would expose independent contractors to potential liability far greater than that of other employers covered by workmen’s compensation statutes.
Vertentes,
“The principle of liability for individualized fault is the norm, whereas vicarious liability ‘is regarded as an exceptional solution.’ ” Ray v. Schneider, supra note 10,
III.
Traudt has demonstrated triable issues of fact on whether PEPCO breached a duty to him under the Industrial Safety Act and under § 413 of the Restatement. The judgment of the Superior Court is, accordingly,
Reversed.
Notes
. See Croce v. Hall,
. PEPCO also asked Waco to show its employees “the types of cables that wоuld be located in the manholes and how they had the asbestos wrapping and the conditions of the manholes that [they] would be working in and the understanding of the voltage that would be running through some of the lines.”
. Traudt also argued in the trial court that PEP-CO had breached duties owed to him under the Occupational Safety and Health Act of 1970 (OSHA), but has abandoned that argument on appeal.
As the parties concede, the Industrial Safety Act will stand repealed two years after approval by the Secretary of Labor of a "plan” submitted pursuant to D.C.Code § 36-1204 (1993), part of the District of Columbia Occupational Safely and Health Act of 1988. The parties also agree, however, that at the time of Traudt's accident that approval had not taken place.
. Since Traudt was an "employee,” albeit of Waco, PEPCO’s reliance on Kurtz v. Capital Wall Paper Co.,
. See, e.g., 29 C.F.R. § 1926.416(a)(1) & (3); § 1926.950(c)(1); § 1926.956(b)(1).
. Fry presented no occasion to decide that issue because the employer’s negligence there, shown sufficiently to require a trial, was in creating the “peculiar risk” by directing the contractor to do the work in a certain way; even to speak of a duty to warn against the existence of that risk would, accordingly, have made no sense in Fry.
. In a footnote, PEPCO asserts that, even as to the Industrial Safety Act and peculiar risk bases of direct liability, "Traudt’s action should be barred as a matter of law by the workers' compensation laws.” That argument is foreclosed by Meiggs v. Associated Builders, Inc.,
. Martin v. George Hyman Constr. Co., supra, of course, precludes assertion of this defense as to the alleged breach of PEPCO’s duly under the Industrial Safety Act.
. There is a dispute in the evidence as to whether this would have been feasible.
. See, e.g., Morris v. City of Soldotna,
. The District of Columbia Circuit in Lindler, supra, in adopting vicarious liability in the employment context, stated: "The quid pro quo of contribution to workmen's compensation, at least in the District of Columbia, is not a correct rationale for non-liability where that quid pro quo is not required by law.” 164 U.S.App. D.C. at 39,
. See, e.g., Sandoe, supra,
. For the same reason, we reject Traudt's reliance on § 427A (abnormally dangerous activity), although he did not, in any event, assert that theory in the trial court.
Concurrence Opinion
concurring in part and dissenting in part:
I join in the opinion for the court except for Part II.D on vicarious liability, from which I respectfully dissent.
Contrary to the majority’s analysis in Part II.D.l, I believe that in Fry v. Diamond Construction, Inc.,
D. Inherent Danger and Peculiar Risk of Harm.
In Counts IV and V of his complaint, Fry, Jr. alleged that the work to be done was inherently dangerous and exposed him to a peculiar risk of harm. An employer is liable for injuries caused by*1340 the negligence of an independent contractor where the work performed by the contractor is inherently dangerous. Levy v. Currier,587 A.2d 205 , 209 (D.C.1991); Lindler, supra, note 7, 164 U.S.App. D.C. at 38,502 F.2d at 495 (applying this rule in favor of independent contractor’s employee). The trial judge, as we have seen, held that scaffolding and painting are not inherently dangerous activities.
But the application of the “inherent danger” rule is not limited to intrinsically hazardous work. District of Columbia v. Howell,607 A.2d 501 , 505 (D.C.1992). On the contrary, the rule applies, inter alia, where “the employer has special reason to contemplate such a risk [of harm] under the particular circumstances under which the work is to bе done.” Levy, supra,587 A.2d at 209 (quoting Restatement (Second) of ToRTS § 427, cmt. b (1965)). In the present case, Bamas testified that he was well aware of the danger posed by the “scaffolding and ladder” procedure. According to Fry, Sr., Bamas not only tolerated the perilous methodology but actually directed Fry, Sr. to follow it.
“Whether a particular kind of work is inherently dangerous is essentially a relative determination based upon the facts of the particular case.” Taylor v. Tellez,610 A.2d 252 , 255 (D.C.1992) (citations omitted). “The existence of [a] danger and knowledge of it by the employer are normally questions of fact for the jury.” Howell, supra,607 A.2d at 505 . Given Fry, Sr.’s testimony, there were genuine issues of material fact precluding entry of summary judgment on Fry, Jr.’s claim of “inherently dangerous” activity. For similar reasons, we conclude that summary judgment was improperly entered on Fry, Jr.’s related claim under the “peculiar risk” doctrine. See Wilson v. Good Humor Corp., 244 U.S.App. D.C. 298, 309,757 F.2d 1293 , 1304 (1985); Restatement (Sеcond) of Toets, § 413 cmt. b. (1965).
Fry,
From the discussion and citations, it is clear that we ruled in Counts IV and V, respectively, on vicarious liability for inherently dangerous activity under § 427 (citing Levy, Lindler, Taylor, and Howell) and on direct liability for “peculiar unreasonable risk of physical harm” under § 413 (citing Wilson ).
The majority’s reasons in Part II.D.2 for withholding such vicarious liability are not unpersuasive, but I believe that any such result can be achieved only by our going en banc to overrule the applicable part of Fry that presently stands in the way of the result the majority proposes. See M.A.P. v. Ryan,
. We did not deal with vicarious liability for "peculiar risk of physical harm” under § 416, to be distinguished from § 413. See Restatement (Second) of Torts § 416 cmt. c.