*3 WALD, Accordingly, company Before HARRY T. EDWARDS at 24-25. id. BORK, safety program Judges. Circuit conducted extensive Tes- Hicks Patricia neighborhood. training, idle safety week- on-site that included timony, id. at 91. shows, bulletins, slide periodic ly safety safety man- of a the circulation Rosita Wilson evening, plaintiff That employ- Humor 22A. Good visiting ual. See id. Rosi- daughter Tomikia were her admonished, things, among other from aunt, ees were across the street who lived ta’s selling in locations which Ro- truck. While parked from to refrain Good husband, busy she to cross her telephoned require customers sita Williams nieces. of two event, chil- in the care to assist left Tomikia and, roadways announced Humor vendor When id. crossing the street. See dren bells, by ringing his distinctive his arrival however, season, to the 1980 Prior money and ice cream the nieces obtained its business substantially altered Benning Road. Unbe- across proceeded ven- to establish its purported format and, followed, them, Tomikia knownst to *4 Under contractors.” “independent dors street, several attempted to cross she “pur- vendors operandi, this new modus her shouting at apparently began children Humor, from Good trucks their chased” to do When she tried return to the curb. financing, and Humor aid of Good with the by so, by a car driven she was struck agreement” au- “vendor’s into a entered Hicks Testi- Aluisi. Thelma Dominic See prod- Humor Good thorizing them to sell Tr., Shortly after a mony, R. 93 at 67-68. from bought wholesale they ucts which hospital, Tomikia to the squad rescue took sell ice vendors could Humor. The Good Barnhardt, grandfather, Tomikia’s Samuel location, at any price and cream at the accident and at the scene of arrived company payroll, and not on the they were Humor of the Good questioned the driver day-to- supervise their Humor did not Good time, allegedly At that the driver truck. 3-4, at 9-10.1 Good day activities. See id. name, Hu- and a Good his address wrote safety program its entire Humor scuttled piece paper telephone on a mor number contrac- adopted Barnhardt gave when it to Barnhardt. See at 22A. format. id. at Testimony, tor See id. 119. days later. Tomikia died 9, 1981, purchased a June Williams
On a ven- and entered into Humor truck Good plaintiffs February On at 5. June agreement. See id. dor’s action, On D.C. wrongful death brought a 1981, alleged to Humor vendor a Good § 16-2701, ini- Aluisi. After against Code in this lawsuit individual named be the however, plaintiffs discovery, tial the 4500 Humor truck on parked his Good counts complaint to add amended their northeast Benning Road in the block Humor.2 Good against Williams and Good ap- dark at Washington against section of thereupon cross-claimed Humor —after began to solicit proximately p.m. Williams; 9:00 likewise Williams Aluisi —and by ringing plaintiffs the distinctive Good against The customers Aluisi. cross-claimed against Thelma Hicks Tes- claims jingle eventually bells. See dismissed their Benning Aluisi, believed Tr., apparently Road is because timony, R. 93 at 64. negligent found under thoroughfare, probably he could not be heavily-trafficked Tr., the accident. See circumstances of any street in the servicing vehicles than more agree- ing provisions and the effect provides these agreement that the vendor The also status of sales contractor his best efforts to "maximize ment on the shall devote Humor,” products purchased from Good See id. Good Humor vendors. hy- personal shall maintain certain the vendor standards, giene cannot sell and that the vendor plaintiffs are citizens of the District products without ice cream non-Good Humor prior Columbia; Maryland are Aluisi and Williams permission Humor. from Good written corpora- is a Delaware Good Humor citizens. Tr., Testimony, at R. 101 9-12. Gammon See Although place principal of business in Do- with its tion ver, placed agreement never itself was proper was thus Jurisdiction Delaware. jury, a Good Humor evidence before the into U.S.C. 1332. under 28 length manager concern- testified at area sales pur- limited spect to Humor for the opening statement Good (plaintiffs’ R. 103 at 3-4 Wil- A. pose proving could “of the David Defendant Williams jury). agree- trial. He party prior to by any party who is a to the vendor’s located liams through counsel complaint ment, any relationship whatsoever answered who has suf- “without Humor, is, fact, that Williams was who stated the driver ... with Good deny” either admit or information to ficient in the accident. of the vehicle” involved allegation that he was plaintiffs’ plaintiffs After the rested id. at 4. See in the acci- Humor vendor involved again district court reopened their Although R. Item 87 at 2-3. dent. See favor. directed a verdict Good Humor’s controversy significant pretrial there was was concluded that Good Humor The court properly Williams was over whether indepen- from all insulated served, ultimately ruled the district court rule, dent contractor proper. was that service Wilson any exception to not succeed under 82-0440, No. Corp., Civ. rule, plaintiffs had not and that the 1983). (D.D.C. Sept. op. mem. at lia- offered sufficient evidence establish bility theory that Good Humor the ease November On to trial. negligently Humor went selects its vendors. See id. and Good Williams prove that Wil- sought to appeal 4-5. This followed. death under liable for Tomikia’s liams was They principles.
ordinary negligence Against II. The Claim Williams Humor under sought recovery from Good *5 The district court concluded that negligence and under sev- of direct theories plaintiffs provided had not sufficient the rule that exceptions to the eral to demonstrate that the David evidence the vicariously liable for employers are not was, in named as a defendant Williams independent contractors. See of their torts fact, parked who a Good the individual Tr., 6-8, At the close of 103 at 10-11. R. Benning night Road the Humor truck and Good both Williams plaintiffs’ the appeal, plaintiffs death.3 On the Tomikia’s directed Humor moved for verdicts. on the iden assert that the directed verdict the granted the motions from court district improper was and that the tification issue had bench, concluding plaintiffs by judge his discretion trial also abused identify- sufficient evidence presented reopen as granting plaintiffs’ motion to defendant Williams ing the named Humor, denying the same mo but to Good in Tomikia’s vendor involved ice cream tion as to Williams. Tr., 2. The court R. 100 at death. See verdict to survive a directed order against Good Humor the claim dismissed however, on the identification issue granted motion prejudice, without Proee- the Federal Rules of Civil reopen with re- Rule 50 of motion to plaintiffs’ intervening ages resulting acts of third from the a verdict in the district court directed 3. Because issue, intervening negli- danger parties it did of an favor on thе identification ”[i]f Williams' plaintiffs suffi- reasonably offered gent not rule on whether been antici- act should have ... jury finding permit against.” cient evidence pated protected St. Paul Fire & indeed in Tomikia’s death was vendor involved Corp., 350 A.2d Co. v. Davis Constr. Marine Ins. negligence underlying negligent. The vendor’s Romero, 751, (D.C.1976); F.2d at 80. 749 752 appeal. While at issue in this is therefore not majority jurisdictions appears that a It proper express resolution of no view on proximate underlying cause or breach allow the question, of Colum- we do note that District concerning duty question the vendor’s con- generally requires three elements bia law jury simi- under circumstances duct to (1) by duty, negligence owed claim: sustain See, e.g., Neal involved in this case. lar to those plaintiff, reason- to the to exercise the defendant 3, (1974); Shiels, A.2d 102 166 Conn. 347 v. care, (3) (2) duty, of this able injury a breach (Ky.1965); Mackey Spradlin, 397 S.W.2d v. plaintiff proximately caused to the 826, (1979 Annotation, & 84 ALR3d Bergan, v. breach. See O’Neil defendant’s cases). (collecting Supp.1984) Bloom v. But cf. 337, (D.C.1982); National A.2d Romero cf. Co., Cream 179 Md. Good Humor Ice Ass’n, Inc., (D.C.Cir.1984). F.2d Rifle (1941). A.2d 592 liable for dam- can also be held An individual dure, plaintiffs Testimony, Tr., must offer sufficient hardt R. 93 at 119-23. The juror to evidence to enable a reasonable not, however, did produce the conclude was the Good Hu- that Williams piece paper containing this information mor in the accident. vendor involved they initially before rested their case. Columbia, District Klein v. Barnhardt also testified that the name of (D.C.Cir.1969). F.2d As the Su- the involved Good Humor driver was “Da- preme explained: Court has Williams, vis” not “David” Williams. See When the evidence is such that without id. credibility weighing the of the witnessеs cross-examination, On Barnhardt indi- there can be but one reasonable conclu- cated that he was unsure even of the driv- verdict, sion as to the Court should er’s last name suggested that his iden- non-suit, proceeding by determine the di- testimony tification was based on his read- rected verdict or otherwise accordance ing papers of the suit rather than his recol- with applicable practice without sub- lection of the years conversation two earli- jury, mission by judgment not- er. withstanding By the verdict. such di- trial,
rection of the
the result is saved
I wouldn’t sit here and swear that his
speculation
from the mischance of
over
Okay?
name was Williams.
But I’m
legally unfounded claims.
going
say
recall,
that from
Iwhat
I
believe, vaguely,
Williams,
it was
Brady
Co.,
v. Southern R.R.
320 U.S.
479-80,
due to the fact
I
haven’t had the
64 S.Ct.
Deutsch, N.E.2d at point, plaintiffs At that Good Humor. (concluding identity bald “[t]he reopen their moved to case Good enough” go was not name ... to link Humor order the ice cream ven- plaintiff testify jury when dor accident to the Good involved defendant in an automobile acci corporation, and the district court as the individ the same last name dent had granted motion. accident). spoke he with after the ual my ruling I will on hold the motion for a verdict, or, matter, directed dis- plaintiffs were sub- realize We missing complaint, abeyance until attempt in their stantially handicapped morning. Monday defendant’s ab- identify Williams prepared But have to you will throughout pretrial proceedings and sence you reopen solely I let forward. will plaintiffs itself. have not the trial Monday purpose, as of o’clock on however, purposely that Williams argued, morning, proving the David A. to avoid himself in order service concealed Williams, party is a of the who vendor identity into of the or to cast doubt agreement, any relationship who in Tomikia’s involved vendor Humor, is, fact, whatsoever with Good us, ap- From record before death. fact, Williams, or, is, in A. David pears counsel аnd that both Williams’ Benning on driver of the vehicle that was good efforts locate Humor made faith 29th, Road on June produced the defendant. Had the purpose. sole That is the concealment, the of willful district evidence complaint Williams’ conduct with- court could deemed And I will dismiss the Monday of 10 prejudice that he was individual out o’clock admission Carle, make that morning you if are unable to in the accident. involved 602; 37(d).4 link, I probative which think is an abso- In the 83 F.2d at Fed.R.Civ.P. (“an incomplete Similarly, answer is to be treat- did not seek evasive or *7 designed protect parties discovery purposes to sanctions as to answer” for the ed a failure deprived unreasonably sanctions); 36(a) (allowing of crucial information discovery see also id. above, As we noted Williams’ at- before trial. party the to deem facts admitted if a court responsive pleading torney in case filed a requests ad- tenders answers to insufficient averring that Williams was "without sufficient motion, missions). Upon appropriate deny” or each of the to either admit information authority example, to district court had the the allegation allegations including plaintiffs' the — (e.g., facts Williams was establish certain that was Good Humor vendor in- that Williams the trial, vendor) purposes to for the the involved 87; supra p. in the See R. Item volved accident. thereof, pleading parts strike defendant’s or the equivocal response to was sufficient This judgment against Williams. to a default or enter stage default at that in the Kane, shield Williams from litigation. 37(b)(2). apply would See id. These sanctions Wright, & See C. A. Miller M. equal had Williams failed to attend with force (2d Practiсe and Procedure 10 Federal 37(d). deposition. properly The See id. noticed 1983). given re- Had Williams a similar ed. sponse cerning ever, go plaintiffs apparently chose forward with- to virtually discovery request any con- to so, sanctions; doing they out the aid of these accident, how- his involvement that would not took the chance Williams sought variety plaintiffs have the could adequately as Humor ven- identified the Good of the Federal Rules of sanctions Rule 37 dor involved in Tomikia’s death. 37(a)(3) Procedure. See Fed.R.Civ.P. of Civil lutely you ordinarily grounds to allow to does not to critical link to constitute apparent authori- reopen See, the on the issue a case. Bell Laboratories ty- Co., Hughes Inc. v. 73 F.R.D. Aircraft (D.Del.1976); Co., v. Feuz Rue Constr. Tr., reopened the R. 100 at 4. In (D.D.C.1952). F.Supp. Here, Barnhardt, plaintiffs and he testi- recalled plaintiffs ample notice fied that he remembered vendor’s last had that Wil- papers. of the suit independently placed name liams’ identification would be at is- into plaintiffs placed The also evidence the simply sue and to come failed forward with piece which Williams paper upon had possession evidence within their and an address, allegedly his name and written available witness. investigator private by and a retained he plaintiffs attempted had to We also that testified that believe trial at that judge’s track down Williams address. concerning See instructions the re Tr., investigator R. The also 93 at 44-49. opened against case Good Humor need not Humor truck testified that a labelled any be read as with inconsistent refusal to parked in 124” front of the “Number was reopen plaintiffs as to Williams. The Tr., residence. R. 93 at 213. The See Good provide a sufficient link Good Humor purchased by defendant Humor truck Wil- demonstrating Good Humor ven liams as truck was also identified number dor was the individual involved in Tomikia’s Tr., Testimony, 124. See Gammon R. 101 present death or that Williams a David was at 9. at the scene of accident and was a appeal, plaintiffs argue party to a agree On Good Humor vendor’s that it was an discretion to allow findings abuse ment. Neither of these reopen plaintiffs their claim compel (or a conclusion individual against judge Good Humor when the trial Williams”) even the “David so identified apparently believed was the David Williams named as the de identify would have to the named defend fendant in judge this case. trial clear ant as the David Williams involved in the ly indicated that the directed verdict was party accident to a agree and a vendor’s plaintiffs’ inability based on the identify ment with Good Humor order to state a the Good Humor vendor involved prima against case Good Humor. facie accident as the Williams David named however, record, does not indicate that (“I Tr., the lawsuit. R. 93 at 37 don’t plaintiffs specifically reopen moved to you sufficiently think that identified against the case Williams after the district truck, occupant with whom granted court the directed verdict. Even spoke evening [Barnhardt] so, had done would not we be inclined accident, being the David Williams who Appellate reverse the district court. suit.”); is the in this named defendant generally courts are loath to overturn a also id. at 36. do not We therefore believe judge’s declining reopen trial decision arbitrary that it was inconsistent for the proceedings trial in the absence of a rare permit district court to e.g., Contempo abuse discretion. reopen only their claim Good Hum Metal Furniture Co. East Texas Motor or.5 Lines, Freight 661 F.2d sum, the directed conclude *8 (9th Cir.1981); Corp. Zenith Radio cf. in proper verdict favor of Williams was Research, Inc., 321, Hazeltine 401 U.S. 803, judge that the trial did not abuse his discre- 332, 795, (1971). 28 S.Ct. L.Ed.2d 77 Moreover, by declining plaintiffs tion to the plaintiff’s failure allow to call avail reopen produce existing against able witnesses or evidence their case Williams. plaintiffs investigator apparently The located and did not move to re- after the testified in the open against paper reopened their case Williams after the case Humor. Good containing the vendor's name and address was Against Good that III. The Claim Good Humor vendors should be Humor “employees” deemed rather indepen- than general rule in the of District dent contractors either Hu- because Good is of an inde Columbia6 that an right mor retains the to exercise control pendent physical is not liable contractor aspects over crucial of their or under work acts or of harm caused the omissions theory “apparent agency.” They of also See, e.g., the contractor. WMATAv. L’En contend that Good found 864, 448 A.2d Properties, Plaza fant (D.C.1982); exception liable under general an v. District Lindler Co of lumbia, 495, (D.C.Cir.1974), rule because its vendors engaged 502 F.2d in “inher- (Second) ently activity also of Torts dangerous” activity likely see Restatement or § (1965) as cited Restate to create “peculiar specific risks” [hereinafter under ment This contractor 2d]. circumstances. 2d Restatement however, rule, §§ with a series of bristles 413, plaintiffs finally 427. The assert long-standing exceptions specifying certain that Good Humor could be found liable for employers conditions under which can be failing to exercise reasonable care in the vicariously directly held or liable for the selection its vendors. of See, e.g., torts of their contractors. Re rejected The district court each of these §§ generally 2d 410-429. See statement arguments. agreeWe did plaintiffs § b; 409 comment Prosser Keeton id. present enough go not evidence to to the § (W. the Law of Torts 71 at 510 Keeton on jury agency, apparent on the actual agency 1984) ed. cited as 5th Prosser [hereinafter negligent selection theories.7 We also excep and Keeton Both the rule and its ]. agree selling with the district court that ice underlying tions are derived from the same cream, such, danger- not an inherently general encompasses rule policies. conclude, however, activity. ous We not employers notion that should be held plaintiffs submitted sufficient evidence they do responsible for activities not con permit finding jury and, instances, in many trol lack the knowl special knew or had reason to know of the See, edge e.g., and resources to direct. children risks to inherent § comment Restatement 2d b. The street sales of ice cream and absolute- took main, exceptions, reflect situ precautions ly no to warn its or to vendors employer is in ations where the the best finding otherwise minimize those risks—a identify, minimize and position adminis impose liability sufficient to Hu- risks in the ter the involved contrаctor’s despite general independent mor con- e.g., activities. Prosser Keeton tractor rule. § cases); (collecting 509-10 Harper, 409 at Employee/Independent A. The Contrac- Immunity an Employ The Basis tor Distinction Contractor, Independent 10 Ind. an er of (1935). L.J. employers normally are Because liable employees for the torts of committed with- plaintiffs attempt In this see, scope employment, their non-liability rule of circumvent First, Davis, 386 A.2d ways. argue number of District Columbia v. ever, throughout parties the district court directed a verdict 6. All three have assumed this agency apparent case that common law District of on the Good Humor’s favor doctrine, provides p. supra plain- choice of law Columbia rules and the plain- the substantive rules of decision ruling, appealed tiffs have see Notice underlying agree. tiffs’ claims. We See Stancill course, Appeal, appeal, On R. Item 92. Co., 744 F.2d v. Potomac Electric Power ruling directing seek a the district Gaither, (D.C.Cir.1984); Myers v. n. 16 232 A.2d jury their case to the under this court submit (D.C.1967); (Second) how doctrine. therefore do not understand We (1971). Conflict of Laws considering appeal we could without decide correctly court determined whether the district surprisingly states "it is The concurrence that the could not necessary apparent agency to resolve” apparent agency theory. fact, Conc.Op. p. 16. In how- 1315 n. issue. *9 1302
1195, (D.C.1978), plaintiffs present of that the failed 1203 vicarious court ten first the dis sufficient evidence to turns in the instance on on the an “in that “employee” theory tinction and Good Humor vendors should between dependent Tr., this dis Although employees. cоnsidered R. contractor.” 100 at degree, usually a matter of tinction is 4-5.9 generally employer-employ
courts
find an
Apparent
Agency
B.
only
ee
if
relationship
employer
the
retains
day-to
right
and direct the
to control
also
that
contend
Good Hu
employee.
day
putative
activities of
mor
vicariously
could be found
liable for
§
See, e.g.,
and Keeton
Prosser
at 500-
70
the torts of its
under a theory
vendors
cases).
02
“The
test
(collecting
decisive
agency”
“agency
“apparent
by estop
right
...
is whether
has
pel”
company
because the
holds its vendors
to control
direct
and
servant
See,
agents
e.g.,
out to be
Good Humor.
performance
of his work and the manner
(Second) of Agency
267
done.” Dovell v.
which
is to be
the work
(1958).
effect,
In
pre
this doctrine would
543,
Corp.,
Arundel
Supply
361 F.2d
544
denying any
vent
Humor
from
liabili
denied,
841,
(D.C.Cir.),
cert.
385 U.S.
87
ty
torts of its
contrac
Ludolph
93,
(1966);
S.Ct.
74
17 L.Ed.2d
profits
tors
image
while
from the
and
Corp.,
Bechtel Assocs.
542
good
Professional
by
company’s general
will created
LeGrand v.
F.Supp. 630,
(D.D.C.1982);
633
reputation
training
business
and its former
Am.,
734,
Insurance
North
Co.
241 A.2d
supervision
Although
and
its vendors.
(D.C.1968).
is apparently
there
no local law on this
many jurisdictions
theory,
permitted
did not
finding
ap
vicarious
under an
any
offer
evidence that Good Humor re
parent agency
typically in a fran
doctrine —
right
tained
any
or exercised
to control
Drex
chisor/franchisee
context.
day-to
portion
substantial
its vendors’
Centers, Inc.,
Prescription
el v. Union
day
testimony
work. The
Gam
Wilbur
781,
(3d Cir.1978)
F.2d
790-95
(Pennsylva
mon,
manager
an area sales
for Good Hu
Inns, Inc.,
law);
Holiday
Wood v.
nia
mor,
virtually
evidence
constituted
167,
(5th Cir.1975) (Alabama
F.2d
176-77
on this issue.
testified that Good
Gammon
Texaco,
law);
Gizzi v.
308,
437 F.2d
prod
Humor
could sell ice
vendors
cream
(3d Cir.) (New
law),
Jersey
309-11
cert.
any
ucts at
any price they
location
at
denied,
U.S.
S.Ct.
See Gammon
Testimony,
chose.
Tr. 101
at
(1971);
Singleton v. Interna
L.Ed.2d 57
9-10.
He testified
Good Humor could
Queen, Inc.,
Dairy
tional
332 A.2d
not require
employ
vendors to
distinc
(Del.1975);
Buchanan v. Canada
jingle
tive Good
bells and
Corp.,
Dry
138 Ga.App.
company
even ask a
vendor
(1976).
S.E.2d
park
his truck
a safer
in re
location
sponse
persistent
complaints.8
customer
Each of
jurisdictions,
these
how
agree
Accordingly,
ever,
required plaintiffs
with the district
to demonstrate
Tr.,
length
to some
Gammon went
demonstrate
R.
at 23.
inability
Good Humor’s
to control the activities
appeal,
plaintiffs point
provisions
of its
9. On
vendors.
agreement allowing
the vendor’s
you
Q.
parent
If
were called
say
hygiene"
"personal
over
some
of its
consistently parked
said one of the drivers
providing
the other
of a
side
railroad track
the time
vendors
vendor must de-
came,
you
something
the train
products
do
best
vote his
efforts to "maximize the
about that because children had almost been
by Good
sold
Humor." See Gammon Testimo-
you
killed? Would
take no
Tr.,
9-11;
action?
ny,
supra
R. 101 at
note 1. We do not
provisions
believe
these
could create
A. I would
tell
caller that
man
right
day-to-day
substantial
to control the
man-
vehicle,
owned his own
"I have no control
products.
which
ice
ner in
vendors sold
cream
him,
why
you
over
don’t
to him?”
talk
*10
nature,
things of that
which is the sort of
reasonably relied on the business
they
employer in
good
speak
name of the
of in
or
conduct
cases
terms of
reputation
independent
con-
doing
inherently dangerous
with
business
activities.
See,
A.2d at
e.g., Singleton,
tractor.
Tr., R. 100 at 4.
that the
We believe
dis-
did not
plaintiffs
In this
rejection
trict court based its
of the inher-
anyone
involved
evidence
present
danger
ent
doctrine on too narrow a view
gener-
Humor’s
accident relied Good
of both the doctrine and its rationale as
the adults
reputation. None of
al business
in local law and
articulated
elsewhere.
Tomikia,
example, testi-
responsible
particular,
we conclude that the
they knew that a Good
fied that
should be able to
to the
on the
cream in the
periodically sold ice
vendor
spe-
theory that Good Humor knew or had
they heard the distinc-
neighborhood, vending
cial reasons to know that its street
bells,
they
jingle
tive Good
create,
likely
partic-
operation was
buy
cream in
the children to
ice
permitted
circumstances,
a
risk to chil-
ular
reputation of
safety
on the
general reliance
special precautions,
did
dren absent
so,
vendors. Had
done
Good Humor
absolutely nothing to minimize or even
might
been a different case.
this
well have
vendors of that risk.
warn its
Wood,
(reversing
See,
I
not find
ice cream to be
do
Plaza,
added);
448 A.2d
see also
just
dangerous occupation. I
inherently
L’Enfant
(“Whether particular
kind of work
at 868
in the same
think it can be treated
don’t
dangerous
essentially a rel
inherently
is
pipes,
torch on
terms as the use of blow
the facts of
based on
conducting
explosions, or
ative determination
controlled
*11
ease.”).
particular
applicability
others,
the
of
out
The
a risk of harm to
or that it be
then,
exception,
danger”
high
the
de-
of a kind which
degree
“inherent
involves a
of
harm,
pends
generic
risk of
on the
nature of an
such
or that the risk be one
very
harm,
of
independent contractor’s
but also
serious
as
work
such
death or
bodily injury____
the
serious
fact-specific, particular
It is
circumstances
sufficient
any
risk,
work
performed.
under which
task is to be
kind involves a
of
§
recognizable
advance,
in
513-15;
physical
of
See Prosser and Keeton
at
harm
Am.Jur.2d,
to others which
is inherent in
Independent
the
Contractors
§
itself, or
(1968
work
normally
expected
to be
Supp.1984);
40 at 802-05
&
§
ordinary
course
the
C.J.S.
usual or
Master
Servant
590 at 362
of
prescribed
it,
way
(1948
doing
or that the
Supp.1984).
&
of
employer
special
has
reason to contem-
Torts,
turn,
explic-
Restatement of
plate
a
particular
such
risk under the
itly
employer
that an
indicates
can be
circumstances under which the work is
found
under either this
liable
circumstance-
to be done.
specific application of the
danger
inherent
(emphasis added);
Id.
b
comment
see also
distinct,
exception
under a
but intimately
or
Speiser,
Gross,
S.
L. Krause & A.
related,
exception
“peculiar risk”
to the
§
American
of
Law
Torts
4:33
of nonliability.
rule
Under the Re-
(1983) (collecting cases)
cited
[hereinafter
doctrinе,
inherent danger
statement’s
for
as
Torts
American
].
example,
of
Section 413
supports
Restatement
employs
independent
who
an
con-
[o]ne
direct
if
liability the employer has reason to
tractor
do
involving
special
to
work
a
know
contractor’s
danger to others which the employer
work
to
likely
is
create
peculiar
a
risk to
knows or has reason
know
to be inher-
special precautions
others absent
if
and the
work,
ent in or normal to the
or which he
employer
steps
takes no
to minimize that
contemplates or has reason to contem-
by
risk
contract or otherwise.
plate
contract,
making
when
is sub-
employs
One who
ject
liability
physical
for
con-
harm caused
tractor to do work
employer
which the
by
to such others
the contractor’s failure
recognize
create,
likely
should
dur-
precautions
to take reasonable
against
ing
progress,
its
danger.
such
unreasonable
physical
risk of
harm to others unless
§
(emphasis added).
2d
taken,
precautions
subject
are
is
section,
The comments to
moreover,
liability
physical
for
harm caused to
makes
danger
clear that the inherent
ex-
precautions
them the absence of such
ception
generically
is not limited to
hazard-
if
employer
ous work.
(a)
provide
fails
the contract that
The rule stated in this Section is com-
shall
precau-
contractor
take such
monly expressed by
courts in
terms
tions, or
of
employer
negli-
(b) fails to exercise reasonable care to
gence of the
in doing
contractor
work
provide in some other manner for the
which
“inherently”
or “intrinsically”
taking
precautions.
of such
dangerous.
not, however,
It is
necessary
§
employer’s
to the
liability that the work Restatement 2d
413.10 The Restatement
be of a kind which cannot be done
“peculiar
with- defines a
risk”
“peculiar
as a risk
suggests
provide
The Restatement also
that an em-
in the contract or in
other
some
man-
ployer may
pecu-
taking
sometimes be
precautions
guard
liable
ner for the
though
c;
liar risk
doctrine "even
risk. See id. comment
id.
provided
taking
Indeed,
special precautions
a.
§
comment
based
contract
otherwise."
argument
Restatement 2d
their
on section 413 both
indicates,
clearly
court,
The Restatement
how-
in the district
see
note
and on
infra
ever,
governs
appeal,
that section
Appellants
see Brief for
at 22-26. Be-
employers such as Good Humor who fail to
cause
provide
Good Humor did not
for the
done,
arising out of
particular,
to the work to be
this case.
predict
character,
place
permit
or out
where it
local courts
would
to find
done, against
is to be
which
reasonable Good Humor
liable
this case under the
recognize
necessity
[person]
circumstance-specific
exception
gen-
§ 418,
taking special precautions.”
Id.
eral rule of non-liability
pe-
codified in the
added);
also,
(emphasis
comment b
culiar risk doctrine of section 413.12
Industries,
Inc., 23
Griesel v. Dart
Cal.3d
In this
Gammon’s testimony con-
578, 586,
Cal.Rptr.
P.2d
cerning
pre-1980
Good Humor’s
safety
*12
213,
(1979).11
practices
permit
was sufficient to
jury
a
doctrine, then,
peculiar
finding
The
risk
that Good Humor
spe-
knew or had
depends
also
employer
on the fact that the
cial reason to know of the risks to children
that,
special
knew
likely
or had
reason to know
to
vending
arise from the street
special
precautions,
that,
absent
an
ice cream. Gammon testified
until
1981,
likely
contractor’s activities were
to create
Good Humor was particularly con-
particular
specific
a
safety
risk
others
cerned with the
of children who
approached
Tr.,
circumstances under which the work is nor
its curbside vendors. See
turn,
mally
Many jurisdictions,
done.
R.
at 24-25. He stated that Good
applied
previously
section 413 of the Restate Humor
general
circulated a
where,
here,
employer
safety
ment
failed in
weekly safety bulletins,
manual and
any way
against
guard
peculiar
known
frequent
conducted
safety
extensive
§
(App.
training,
risks.
explicitly
See Restatement 2d
instructed its driv-
1984)
cases);
(collecting
concerning procedures
American Torts
ers
minimizing
§
(same).
4:33 at 708-09
While the District
the risks to children. See id. at 22A.
that,
of Columbia courts have not faced the
repeatedly
Gammon also
testified
af-
1981,
question
adopt
reject
whether
or
sec
ter
Good Humor neither warned its
413,
tion
we believe that there are suffi
peculiar
vendors of the known
risks nor
suggest
cient indications in local law to
any safety precautions whatsoever;
took
apply
indeed,
some version of the
Gammon went so far as to assert
peculiar risk
(or
not)
doctrine to the circumstances
that Good Humor would not
taking
any special precautions
liability
in this
embodied in sections 427 and
liability might
we need not determine what
Restatement. See Brief for David Williams at
peculiar
23-25;
have incurred under the version of the
Brief for Good Humor at 31-34. While
risk doctrine embodied in section 416. We inti-
mate no view as to the
agree
explicitly
that no local court has
proper
resolution of that
sections,
adopted the Restatement
we think it
question.
reasonable to read the District of Columbia
recognizing
availability
cases as
that the
of the
peculiar
theory
11. The
risk
of Restatement
danger exception depends
par-
inherent
on the
413,
throughout
§
was raised in substance
surrounding
indepen-
ticular circumstances
see,
pretrial
legal proceedings,
e.g., Motion to
relationship
dent contractor
and the task to be
2-4, 8-9;
jfl|
Complaint,
Amend
R. Item
Sec-
generic
performed,
quality
not on the
Complaint,
ond Amended
R. Item 35 Iff
supposed.
work as the district court
See LEn-
18,
memorandum,
plaintiffs’
and in the
trial
Plaza,
Memorandum,
868;
448 A.2d at
supra
Plaintiffs’ Trial
R. Item 102 at
pp.
fant
1303-
(citing, among
things,
1-3
other
Restatement 2d
413).
also
§
relied on
inher-
many
We also note that
"traditional" articula-
danger exception
general
ent
to the
rule of non-
danger exception routinely
tions of the inherent
liability before the district court. See Plaintiffs’
circumstance-specific, peculiar
recite the
risk
Memorandum,
Trial
R. Item 102 at 1-3. As we
principles codified in the Restatement.
above, however,
explained
that doctrine entails
Co.,
Weilbacher
J.W. Putts
123 Md.
inquiry
particular
an
into
circumstances
(1914); Wright
91 A.
345-46
v. Tudor
surrounding
contractor
rela-
Unit,
303, 305-08,
City
276 N.Y.
Twelfth
tionship
performed.
and the
to be
task
(1938);
N.E.2d
308-09
41 Am.Jur.2d Inde-
supra p. 1304.
(1968
pendent
Supp.1984)
Contractors
&
§
cases);
(collecting
§
American Torts
4:33 at
suggest
12. Both Good Humor and Williams
(same);
Prosser and Keeton
71 at 513-
relevant
issue here is whethеr District of
(same).
“reject”
"accept”
Columbia courts would
or
"expanded exception”
rule of non-
Humor,
take
even if it were informed
to their
action
task. Good
contrast,
particular
sold
a
vendor
and detailed knowl-
products
creating
patently
edge
in manner
risks
children in-
23;
operation
feckless
children.
volved in its
is in
risk to
See id.
the best
view,
pbsition
tes-
supra
safety
note
In our
Gammon’s
ensure
reasonable
aware-
timony
Despite
concededly
sufficient evidence to
constituted
ness.
its
extensive
support
finding
knowledge
risks, moreover,
of those
danger
has apparently
inherent
doctrines. Humor
to disclaim
chosen
responsibility
district
warning
We must
therefore reverse the
its vendors or
taking
any precautions
court’s directed verdict in favor
Good for
whatsoever
specific dangers
Humor.
the known and
purchase
who
children
ice
from
cream
their
so,
In doing we note that Good Humor’s
vendors.
relationship
presents
with
vendors
rather unusual factual situation.
Restatement indicates that
scenario,
typical independent
especially
contractor
reasonable
this con-
*13
individual or
business hires a
independent
contractor
text where an
contractor is
discrete,
carry
relatively
engaged
perform
integral
to
out a
one-shot
to
aspect
of
activity
general scope
the
of the
employer’s
employer
outside
the
business
the
and
context,
employer’s enterprise.
In
in-
special knowledge
that
has
and
con-
experience
sulating
employer
liability
the
cerning
performed.
the
from tort
work to be
appeal:
continuеs to have some
the con-
applying
peculiar
exception
the
risk
[In
tractor,
employer,
rightly
not the
is
held
general
to
non-liability,]
the
rule of
the
responsible
recognizing when her activi-
for
employer’s knowledge
extent
and
likely
ties are
create risks
and
to
to others
in
experience
to
field of work
be done
exercising
to
reasonable care
avoid
account;
is to
taken into
and
be
an inex-
normally
employer
those risks. The
does
perienced
employing a contrac-
widow[er]
manner in
task is
control the
which the
expected
tor to build a house is not
to
performed,
position
is not in the
to
best
information,
have the same
or to make
safety precautions,
ordinarily
take
inquiries,
the same
as to whether the
special knowledge necessary
lacks the
to
likely
to be done
work
is
create a
recognize
contractor’s work will
peculiar
others,
risk
physical
harm to
likely
create
risks
absent
to others
require special precautions,
or to
as is a
special precautions.
development company
real estate
em-
ploying
contractor
to build
same
None of these factors characterizes Good
house.
relationship
“independent
Humor’s
with its
§
f;
contractor” vendors.
vendors
Good Humor
Restatement 2d 413 comment
see also
engaged
Co.,
are
perform,
Campbell
the bulk of Good
Mackey
Cal.
Constr.
business,
App.3d
(1980)
Humor’s
and Good
un-
Cal.Rptr.
Humor
doubtedly contemplates
(“[In applying
do so
413],
will
section
the extent of
through
knowledge
the curbside sale of
Humor
in
employer
Good
of the
the field
aсcount,
products
i.e.,
from “Good Humor” trucks. The of
is to be taken
work
into
possess any special experi-
knowledge
experi
vendors do not
more extensive his
knowledge
ence,
rule.”).13
concerning
applicable
ence or
the risks
the more
professes pleasure
13. The concurrence
that our
state
several
courts have found
risk
analysis
particularly appropriate
“economic
is confined to
facts of
doctrine
circum-
case,
rejects
this case” and
"the notion
courts can
such as those in
and of course
stances
this
freely redesign liability
penalize-an
holding
rules to
in-
our
we limit
to those circumstances.
In
party
happens
cheap-
particular, nothing
depends
opinion
nocent
who also
to be the
in this
Conc.Op.
p.
expertise
est cost avoider.”
at
n. 13. Of
Good Humor’s
business
course,
hardly
any dispute
cheapest
there could
over
whether Good Humor
is the
cost
do, however,
Instead,
proposition.
this
We
rea-
think it
avoider. See id. at
it is the
point
simple
admittedly
sonable to
out that the Restatement and
fact that Good
Humor
that,
suggests
pe
ported by
likewise
evidence
the time the
especially
culiar
is
exception
relevant
hired,
employer
contractor was
knew or
where,
here,
as
risk is
one which the
special
had
reason
specific
of the
know
employer
recognize
likely
should
as
arise
likely
risks
to arise
the manner
from
particular
in the course of
method which the
performed
contractor
his as-
which the
knows the contractor
signed
risk.
provid-
Because the
See Restatement 2d
аdopt.
will
ample
ed
evidence
pos-
that Good Humor
b,
comments
f.
comprehensive
knowledge
sessed
emphasize
We
holding
that our limited
special
risks
involved in the
children
predicated
here is
on the
un-
somewhat
vending
products
street
of ice cream
when
usual
surrounding
circumstances
Hu-
vendors,
it hired its
contractor
mor’s recent
conversion to an
we need not
an employer’s
determine when
operation,
contractor
its
knowl-
detailed
prior experience in a field of business alone
edge
special
of the
risks
in-
to children
knowledge
constitutes
pe-
sufficient
vending,
volved in
ice cream
curbside
culiar
risks
Accordingly,
involved.14
any steps
its refusal
to take
aimed at en-
that,
hold
under the circumstances of
suring
special precautions
taken
were
cannot
insulate it-
guard against
particular,
those risks.
self from
own
its
field of busi-
holding
employ-
our
does not mean that an
engaged
ness
when
vendors to sell Good
such
er
as Good Humor
forever “locked”
products
curbside,
from the
knew
negligence
into
its con-
or had
reason to know of the risks
previous experi-
tractors
result
operation,
to children inherent
in its
finding
ence
a field
business. A
any steps
flatly
refused to
designed
take
liability under the
risk doctrine or
*14
risks,
circumstance-specific
including warning
to minimize those
component
the
of the
danger
sup-
circumstances,
inherent
doctrine must be
its vendors. Under
these
specific,
knowledge
peculiar
special
completely
retailing
of the actual
withdrawn from
and main-
that,
part,
say
risk
lawsuit
involved in this
creates
no
tained
over the manner
in which its
Moreover,
liability.
holding
рroducts
eventually
public.
our
does not mean
are
to the
sold
Cf.
super-
(noting
that Good
must
Humor
and
Prosser and Keeton
499-500
"devis[e]
§ 69 at
that
system
liability
depends
employer
always
special
a
of contracts that
control
vis[e]
would
on a
safety-related
relationship
principal
agent).
the
conflict of the
between
In
us,
situation, however,
On the
relationship
contractors."
Id.
record before
it
the
be-
appears
absolutely
that Good Humor took
no
the
tween
and the
manufacturer/distributor
steps
peculiar
guarding
product
aimed at
the
seller of
eventual
the
would not even
vending operation,
risks
street
involved in its
the level
rise to
of an
contractor
Am.Jur.2d,
including alerting
relationship.
the vendors to
risks.
Independent
those
Cf.
supra pp.
only
See
(defining
1305-1306. We
indepen-
conclude
1§
Contractors
at
an
730-39
that the
engaged
adduced sufficient evidence at
per-
is
dent contractor as one who
jury
another).
trial in order to seek
under
specific
determination
form a
task for
This is most
not,
peculiar
the
We
how-
assuredly
risk doctrine.
are
not the
Good
case here.
Humor has
ever, presented
the issue
concur-
with
that the
relinquished
general
not
all direction over the
resolve, namely
pre-
rence is so
the
anxious
products
in which its
are to be
manner
Instead,
retailed.
satisfy
cise nature of
conduct that will
engages "independent
contractors”
any
employer’s
duties under section
selling
purpose
products
for the exclusive
its
peculiar
other version of the
risk doctrine. The
provides
products
specifically
its
are to
issue,
believe,
resolution of that
we
be
should
bearing
on
be sold
the curbside from vehicles
day.
left for another
corporate
name and
Good
trade-
Tr.,
Testimony,
See
mark.
Gammon
R. 101 at
argument,
We have
At oral
counsel for Good Humor
9-11.
concluded
Good Humor
compared
day-to-day
Good
case
does not exercise
control over
Humor’s situation in this
its
supra pp.
activities. See
1301-1302.
vendors’
to that of a multi-faceted business concern that
reasons,
decides, for
fide
But
vendors to sell
bona
economic
Good
cannot hire
its
given
namely,
operation
products
through
close down the retail end of its
manner —
vending
any responsi-
continue
aas
street
then disclaim
manufacturer/wholesaler.
—and
agree
bility
speci-
We
that an erstwhile
risks involved in that
manufacturer/retail-
given
normally
responsible
knowledge
er
would not be
for the
fied
its
of those
task
extensive
sort
it had
of accident involved in this case if
risks.
danger
enough
we conclude that
entitled
of the
jury
are
here,
to a
on
Humor’s
we find it
and appropriate
determination
reasonable
liability
peculiar
guidance
peculiar
doctrine.
to look for
risk
risk doctrine to an
authority,
established
We are
at a loss to
thus
understand
and the
traditionally
that we
written
concurrence’s concern
have
purpose.16
served that
broadly
predicting
principles
too
un-
der which
courts would
impose
local
decide
We do
seek to
the whole of
Although Judge
agrees
case.
Bork
sections
or 427
the law
onto
of the
some
doctrine
purpose
version of
risk
District
for the
Columbia —even
applied
Conc.Op.
deciding
should
to this
this cаse. That
is not neces
p.
sary given
at
failure
he
Humor’s
to take
apparently disagrees with the
action,
precise
vendors,
scope
including
that doctrine as codified
aimed at
minimizing
in the
In-
discussed
Restatement.
known
risks. At
stead,
time, however,
prefers
he
to enunciate
and to
can confidently
same
we
project
courts his
if
say
onto local
own
local courts
behave
future
principles, analogizing
past,
they
from other local
too will look
which, incidentally,
doctrines
do not estab-
guidance
the Restatement
in deter
are lim-
obligations
lish
mining
that a tortfeasor’s
difficult and novel
issues of tort
ited to a
to warn. See
Conc.Op.
pp.
Cottom v. McGuire Funeral
duty
law.
ervs.,
Inc.,
1313-1314.15 While
that Good S
agree
(D.C.
262 A.2d
808-09
1970)
Humor’s
even to
(discussing
products
failure
warn its vendors
the strict
liabili
safety
Two of those cases involve the manufactur-
to take reasonable
measures on
failure
own,
duty
er's
the ultimate
shopkeep-
warn
users or consum-
his
amounted to a
of the
breach
care).
Morrissette,
potentially dangerous
duty
product.
Ramsay
ers of
See
er’s
v.
(D.C.
moreover,
(D.C.
1969),
Corp.,
Burch v. Amsterdam
accident. with decides that We must did not there a duty district court that is to warn but declines to come sufficient evidence to decide whether forward with Good is under negligent to the selection jury duty. on additional seems This to me unsatis- theory. Tr., 100 at 4. R. factory. being The case remanded and is
yet judge given guidance the trial is no on IV. charge Conclusion how to jury about the extent of reasons, Good obligations.2 remedy Humor’s To For the we affirm the foregoing deficiency, propose that I a clear of David Williams rule de- directed verdict in favor rived from of verdict in the District Columbia case we affirm the directed favor control, of on ap- imposes Good the actual law duties to warn. This rule Humor on parent negligent sweeping obligations selection theo- less on agency and Good Humor however, conclude, plain- rule, ries. expansive that the than the We Re- (Second) (1965), tiffs are determination of entitled to statement Torts Good under the Humor’s inherent clearly is more in accord with local law. danger exceptions Since, risk to the plain it is this formulation that general employers rule are not liable Good Humor is entitled to a not directed independent for the torts of contractors. time, present verdict at I concur in the We therefore the directed verdict reverse majority’s judgment decision reverse the on favor of Good Humor that issue and of the district court. remand this a new trial limited to case for In this defendant Good Humor question Good of whether period years demonstrated over a of 35 should be liable under the found of, very that it knew was concerned danger risk or doctrines. inherent about, peculiar to children risks coincident So ordered. with the business curbside ice cream Notwithstanding sales.3 that knowledge,
BORK, Judge, concurring: Circuit reorganized when the its defendant busi- judgment While I ness its concur and established vendors as inde- Judge pendent contractors, court and in Part II Wald’s thor- the evidencе currently ough opinion, separately suggests in any way I write because I that it failed to warn obligations dangers would limit Humor’s un- those contractors of involved.4 manual, safety prior practice warning 1. The risk doctrine is one of several its recognized exceptions general rule that vendors not cream in to sell ice locations where employers vicariously held busy cannot be liable for children cross would have to streets. I do the torts of their contractors. That suggest not mean to all of the information important rule because is it embodies imparted by program given had to be fundamental notion individuals are re- They surely contractors. would be sponsible gen- for their own actions and should such aware of some risks as those attendant erally not be made liable for torts committed upon driving with brakes. But the defective people. integrally other is related rule attracting risks of children to a truck are less concepts responsi- of fault and of individual immediately part every obvious and driv- bility that are also fundamental to the law of understanding. appropriate er's It thus torts. particular Good Humor warn risk. specificity presents 2. This lack of substantial It is conceivable that Humor will be able may judge’s charge that we find trial Williams, prove indepen- remand that tried, inadequate even after this case has been contractor, adequately dent was warned of the *17 yet which would lead second reversal and peculiar example, this case. For risk at issue in another trial. suggests record evidence that Good Humor in- special particular formed Williams that he had to obtain a 3. Good of Humor’s awareness vending longstanding District of risk is license from the Columbia established mainte- government following safety precautions: nance conduct his curbside of the on- order to ice bulletins, safety training, weekly safety peri- Deposition site cream sales. See of Wilbur L. Gam- shows, 10, 27, general odic slide the circulation of a mon at 51-52. See also id. at 34. The that, It certainly arguable as a direct majority suggests The that courts that warn, consequence of this failure to David accepted liability vicarious for inher- parked Williams his ice truck cream on a ently dangerous activities necessarily must busy thoroughfare,5 and an accident en- accept it for precautions failure to take sued. Maj.Op. against peculiar risks. at 1303- majority, Unlike the I do not think it recog- 1304. Yet the Restatement itself clear that the District of Columbia Court of nizes danger the inherent peculiar and (Sec will look to the Restatement Appeals risk doctrines analytically are distinct.7 ond) Torts (1965) cited as [hereinafter of Acceptance of the former demonstrates lit- this, 2] to decide cases like tle, anything, if probable about acceptance much Appeals less that Court will of the latter. It wrong would be for us to adopt expansive the Restatement’s version assume that the District of Columbia en- peculiar of the risk doctrine. That Court dorses the expansive Restatement’s version any version rejected never endorsed or peculiar of the risk merely doctrine be- peculiar doctrine, of the major risk and the cause it subscribes to traditional notions of WMATA Pla ity’s reliance on L’Enfant Properties, za (D.C. vicarious 448 A.2d ultra-hazardous lines 1982), misplaced is therefore since that of work. activity case concerned an that was “inher Since the District of Columbia courts ently dangerous unusually and hazardous.” adopted have neither rejected any nor ver- Id. The Court of Appeals made no mention peculiar doctrine, sion of the risk I am peculiar of the risk doctrine in L’Enfant compelled to consider what those courts
Plaza and was concerned with the they would do if had to decide this case. problem different vicarious for Many state courts approvingly have cited ultra-hazardous The majority activities. expansive even the version peculiar misapprehends significance of that case risk doctrine set forth in suggesting sections it endorses the Restate teachings peculiar and 427 of the Restatement 2d ment’s risk.6 Torts.8 process obtaining may ty. Columbia, that license well have Lindler v. District put (D.C.Cir.1974); Bonnett, Williams on notice of the need to take F.2d Vale v. appears (D.C.Cir.1951). care with children. It that the F.2d Neither case time, imposes place, District local and manner mentions the risk doctrine or the Re- sales, quite particular restrictions on curbside ice cream theory statement formulation of this possibly safety liability. reasons. Id. of vicarious speculate I will not here as to what level of majority argues danger 7. The inherent governmental warning put would suffice to Wil- exceptions closely are related liams on notice and would relieve Good Humor emphasize particular because both circum- obligations question of its to warn. That will surrounding specifiс job indepen- stances produc- have to be answered as new evidence is However, relationship. many dent contractor legal ed either on remand or in the trial of some emphasize importance doctrines possibility case. future that Williams was circumstances, specific and it does not follow warned, others, adequately by Good Humor or they this that from all embrace the same funda- important all makes it the more that we now principles. danger excep- mental The inherent duty establish whether Good Humor had a to do clearly ap- tion as discussed in Plaza Otherwise, signifi- L’Enfant more than warn. it becomes plies in cases where the nature of the work is cantly likely more that the scenario described in dangerous performed. pe- no matter how actually pass. footnote 2 will come to doctrine, hand, applies culiar risk on the other warned, to work that is safe if a risk to that 5. Had Williams been as Good Humor’s work is warned, known avoided. While the two pre-1980 employee-drivers were he related, may doctrines are not identical park heavily would have known not to in such a ought not be confused. responsibility travelled location. The for hav- ing entirely so done would then be his. 8. The relevant sections of the Restatement 2d provide as follows: majority incorrectly 6. The also relies on two previous recognize Duty Taking decisions of this court which § 413. to Provide Precau- danger exception Against Dangers an inherent under District of tions Involved in Work En- Columbia law to the rule of non-liabili- trusted to Contractor *18 1312 §§ 413, preserve. Imposition duty to of a to warn Restatement 2d (Apрendix. no such effects. has untoward cases). (collecting But there is
416 and 427
sections of
no
for
to endorse those
need
us
Nonetheless,
apparently
majority
be-
goes
413
the Restatement here. Section
adopt
lieves that we should
Restate-
duty
past
to
in
beyond
creation of
ment rule
this case because in the
far
the mere
the District of Columbia courts have some-
enter into
obligates employers to
warn and
guid-
times looked to the Restatement
for
franchisees
order to
contracts with their
resolving
ance in
difficult
issues of law.
respect to safe-
regulate
conduct with
their
presump-
no
But there is
Maj. op. at 1308.
to
Employers
required
are thus
devise
ty.
tion that
if a
court sometimes relies
local
independent
safety programs for their
con-
Restatement,
rely
on the
that court will
if
may
liable
those
tractors and
well be
propositions
it for all future
as well.
It
employers
protect or if the
programs fail to
tempting
often
for federal courts in
will
be
compli-
supervise the contractors’
do not
simply
follow the Re-
diversity cases
to
programs in a manner that
ance with the
rules where local law is silent.
statement
adequate.
juries
or
later consider
courts
Restatement,
all, seems authori-
after
liability
expands
413
vicarious
thus
Section
support
tative and claims the
of numerous
recog-
beyond
traditionally
far
bounds
temptation
cases.9 This is a
which we
prac-
nized in the District of Columbia.
however,
resist,
practice
must
since a
tice,
may
formulation
se-
the Restatement
always following
advantages
doing
verely undermine the
very
adopting the American
much like
сontractors,
through independent
business
as federal com-
Law Institute’s conclusions
public
advantages which accrue to the
as
mon law. Under Erie must not assist
employer
as the
and which the basic
general
well
creation of a “federal
com-
10
Tompkins, Erie R.R. v.
liability
against vicarious
is intended mon law.”
rule
by
employs
independent
contractor’s failure to take
who
an
contractor
such others
One
danger.
employer
recog-
precautions
reasonable
such
to do work which the
should
create,
likely
during
progress,
its
nize as
to
cases,
fact,
always
support
are
as
9. These
not
appear.
physical
peculiar unreasonable risk of
harm
example
made to
For
ive as
are
taken,
special precautions are
to others unless
the cases
are collected in the
most of
which
subject
liability
physical
for
harm caused
is
Appendix to Restatement
413 do not endorse
§
by
precautions
such
if
to them the absence of
obligated
employers
the view that
should be
employer
enter into contracts with their franchisees con
(a)
provide
fails to
in the contract that the
safety.
only
cerning
A number of cases concern
precautions,
take such
or
contractor
shall
activities,
inherently dangerous
Sword v. Gulf
(b)
pro-
care to
fails
exercise reasonable
(5th Cir.1958),
Corp.,
Oil
251 F.2d
cert. de
taking
vide in some other manner for
824,
41,
nied, 358 U.S.
79 S.Ct.
1313
64, 78,
817, 822,
(D.C.1979).
case,
U.S.
S.Ct.
82 L.Ed.
1383
yet
58
1188
In
a third
it was
(1938) (Brandéis, J.).
said that under certain circumstances
a
landlord would be liable
for
even
the crimi
Instead,
pos
guided
we should be
where
nal
parties
misconduct of third
if he “was
by analogous
sible
rules
that have been
dangerous
aware of a
and
situation
took no
adopted by the District of Columbia courts.
action
remedy
either tо
the situation or to
past
imposed
Those courts have in the
Ramsay
warn
danger.”
the tenants of the
duties to
in
warn
several cases where one
Morrissette,
v.
509,
(D.C.
252 A.2d
512
special knowledge
pecu
individual
of
a
1969).
danger
liar
these
to others. While
cases
were not
In
cases,
decided under
each of these
the District of
doctrine,
imposed
involved fact situations
liability
Columbia courts
on
par-
a
many ways
ty
are in
to
analogous
the fact
who
to
notwithstanding
failed
warn
his
case,
situation
knowledge
before us.
one such
of
risk.
example,
Appeals
the Court of
held that a While none
of
cases involved indepen-
contractors,
seller
a dangerous
or manufacturer
of
dent
two of
did
them
involve a
product
duty
has a
to
users of
plaintiff-defendant
warn
fore more distant
relation-
products
ship
seeable
risks from misuse of
present
than
exists
case.
directions for safe Burch v.
Corp.,
Amsterdam
and
provide specific
366 A.2d
Corp.,
Burch v.
Stores, Inc.,
Amsterdam
v. Safeway
1079;
Viands
use.
366
107
1079,
(D.C.1976);
Edwards v.
A.2d
Moreover,
A.2d
appears
Masterpieces,
Mazor
295
depended
F.2d 547
have
in these cases as much on
(D.C.Cir.1961).
In another
the foreseeability
Court
of the harm as on the
warning
of Appeals imposed
requirement
duty
plaintiff
owed
or to a third
danger
peculiarly
party.11
where an unusual
was
reasonably
A
find that
owner,
foreseeable
a store
while un
harm was foreseeable as a result of Good
Safeway
v.
Viands
patron.
known
to a
Humor’s failure to warn. Accordingly, be-
Stores, Inc.,
Ellis
(D.C.1954);
tremely expensive, both in administration principal may come lawmakers.15 It litigation and later over the be adequacy of administration, responsi- that cost-inefficient may and allocations of result avoiding less effective method of bilities would be “fairer” or that more accidents. acci- performed investigation We have not dents could and should be avoided than dangerous happens cheapest Maj. lice to the existence of a situation. to be the cost avoider. Ramsay, op. A.2d at n. 13. 512-13. at 1306 Contrary majority’s allegations, I have agree 14. I therefore do not that vicarious liabili- attempted spell precise here to out the con- ty always appropriate would be where efficien- “adequate” of what would constitute an tours cy suggest concerns that an should warning of a risk under District of employee have warned an of a risk. highly Columbia law. That would involve a exercising diversity jurisdiction Federal courts fact-specific inquiry foreseeability into which authority do not have the to rewrite the Dis- only case-by-case be undertaken on a ba- trict’s a State’s law of torts in order to note, however, disputes as future I do sis arose. achieve "efficient” or "fair” results. I have dis- remotely sup- that none of the local cases even argument efficiency cussed the economic port position the Restatement’s that a business yet because the District as has no law on this obligated supervise be to devise and should subject implicit justifica- is the because it system of cоntracts that would control the safe- expansive tion for the Restatement’s doctrine of ty-related conduct of the contrac- peculiar risk. tors. The District of Columbia law on analo- provision gous situations focuses instead on the interesting of the 15. For an discussion recent warning given totality adequate of the judicial expansion of tort see Remarks circumstances in each case. Horowitz, of Michael J. Counsel to the Director majority's Management pleased Budget, I am that the economic of the Office of analysis confined to the facts of this Fourth International Conference on Product Li- majority explicit rejection ability Manage- join and Consumer I Protection Forum, Munich, freely redesign liability Germany, notion that courts can ment West Novem- penalize party rules to an innocent who also ber efficiency suggest. considerations alone If imponderables
we grapple had to with such law, existing order rewrite tort decide whether these are legislative in
considerations too nature for legitimately court to admit into its calcu-
lus. legislature The District has a and can course alter its tort time rules But, said,
chooses. as I have this case can ground: decided on far narrower
simple recognition duty of a to warn held
by a franchisor with knowledge extensive
of peculiar danger not so well understood
by its franchisees.16
Subject these clarifications and under-
standings, majority opinion I concur in the
and in judgment of the court.17
UNITED STATES of America MOUNT, Appellant. M.
Charles
No. 84-5111. Appeals,
United States Court of
District of Columbia Circuit.
Argued Oct. 1984.
Decided March
holding
clarify
applied
16. In so
I wish to
two additional
even if it
under District of Colum-
First,
points.
while Good Humor’s failure to
bia law.
Wilsons,
may
warn
render it liable to the
it does
seeking
majority
17. The
necessarily
accuses me
to bind
any
relieve
Williams
local
may
courts to
risk standard far
company's
he
nar-
have Good Humor
on
Maj. op.
rower
the Restatement’s.
majority
than
cross-claim.
cross-claim,
does not address the
Obviously,
attempt
I make no such
because
and I
this
therefore assume that it re-
authority
adopt binding
simply
court lacks
mains alive. We
construc-
have not addressed the
diversity
My
express
opinion
proper
tions of
issue and
no
local law
cases.
criti-
reso-
cism
lution.
of the broader Restatement rule is made
majority
endorsing
because the
insists on
Second,
majority’s opinion
I concur in the
though
ap-
even
it does not
Employee/Indepen-
insofar as it discusses the
prove
says.
of what the' Restatement
Under
dent Contractor
Negligent
Distinction and
doctrine of
circumstances, clarity requires
these
that I ex-
judgment,
Selection.
I reserve
how-
plain why prefer
why
I
the narrower
I
rule
ever,
question
on the
of whether the District of
adopt
believe the local courts would
it. If those
adopt
Columbia courts would
the doctrine of
me,
disagree
courts choose to
with
can of
Apparent Agency.
necessary
It is not
to resolve
adopt
course
broader
Restatement rule or
question,
since the
could not
indeed
rule.
other
theory,
maj.
op.
on this
at 1302-
pears
causation,
speak
Thus,
makes no difference whether
we
an attenuated chain
remain constant
recently
"since the fundamental
terms
noted that
duty
of care
... whether we
analysis ap-
discuss ...
cause and
proximate
additional
case the
courts