*1 RUIZ, concurring: Judge, considered, pur- Associate jeopardy for double Court scrutiny appropriate degree of of a poses, the separately to make clear what I write judge’s of a mistrial over trial declaration it does not reach. holds and what opinion objection i.e., of “manifest because defense — one: necessary holding is a narrow only Our necessity” ground of deadlock. the—on jurisdiction, a mistrial is a “non- terms jeopardy holding In that the law of double brought juvenile properly a event” once judge given “broad permits the trial to be Thus, Partlow Division. before the Criminal deciding or not ‘mani- discretion in whether in the Criminal Division should be retried justifies discharge necessity5 a fest prop- following because his ease was mistrial hung jury jury,” explained that a the Court Partlow was erly brought in that Division as for a “long considered the classic basis under charged an enumerated offense at 98 S.Ct. at proper mistrial.” U.S. 16-2301(3)(A), § still D.C.Code omitted). (footnote later, years Six offense. We of a lesser-included convicted States, supra, v. Richardson United deciding? premature, it is because are proposition that a “reaffirm[ed] Court retrial, whether, Division the Criminal after following of a mistrial trial court’s declaration proceed to sentence Partlow should hung jury is not an event that terminates a trans- could or should be Partlow whether original jeopardy [the to which defendant Family disposition Division ferred to the at subjected.” 468 104 S.Ct. is] U.S. depends juvenile. That determination as a offense, any, Partlow is of which decisions, Supreme Court it is Given these guilty upon retrial. found simply implausible to conclude that Con- 16-2301(3)(B), gress, in attached section
jurisdictional significance result- to a mistrial especially This is deadlock. perverse if one considers the incentive
true contrary reading
that a would create for a judge
trial is more convinced than the who guilt.
jury that the evidence demonstrates Lucas, light forcing continued delibera- COMPANY, W.M. SCHLOSSER objection tion over defense even at the risk INC., Appellant, might of a coerced verdict seem to be worth price retaining jurisdic- court criminal worst, price being, tion —that reversal and COMPANY, MARYLAND DRYWALL Any suggestion that a retrial under Lucas. INC., Appellee. jurisdiction appel- the loss of criminal under 16-2301(3)(B) reading lant’s of section would COLUMBIA, Appellant, OF DISTRICT juvenile escape judgment not enable a only shift the forum of his acts but would juvenile unconvincing. adjudication to court is ROBERTSON, al., Appellees. et Andre juvenile adjudication delinquency in
An
92-CV-518,
Nos.
92-CV-538.
conviction,
prose-
and the
proceeding is not
its “one
cution would still have been denied
Appeals.
Court of
District of Columbia
opportunity to
those who
complete
convict
Washing-
have
its laws.” Arizona v.
violated
10, 1994.
Argued June
ton,
at 832
supra,
motion to transfer case denying
Division and its order reconsidera- accordingly ruling are
tion of
Affirmed. *2 O’Connell, Rockville, MD,
Terence J. for appellant in No. 92-CV-518. Carter,
William J. with whom Thomas L. brief, DC, McCally Washington, was on the appellee in No. 92-CV--518. Schwab, Corporation Edward E. Assistant Counsel, Payton, Corpora- with whom John filed, tion Counsel at the time the brief was Reisehel, Deputy Corporation and Charles L. Counsel, brief, appellant were on the No. 92-CV-538. MD, contract with Schlos- Simmons, entered into a Spring, for District
Luiz Silver R.S. building.1 The contract to renovate the ser appellee in No. 92-CV-538. contractor, Schlosser, general com- gave WAGNER,* Judge, and Chief Before project plete of the construction control KING, Judges. Associate required FARRELL and li- obtaining the responsibility for *3 required permits; it also Schlos- censes and Judge Opinion for the court Associate including regulations, comply with all ser to KING. pro- safeguards to proper safety and health public. Schlosser workers and tect the FARRELL, Judge Opinion by Associate into contracts with subcontractors entered dissenting part concurring part including one remodeling project, for the p. 654. (“Ma- Maryland Drywall Company with the ryland Drywall”). KING, Judge: Associate appeals stem from an These consolidated 13, 1987, an Andre On March injury Robertson at a sustained Andre working Maryland Drywall, was employee of Southeast, Washington. construction site Capper construc- the stock crew at the with 92-CV-538, the District of Columbia floor, In No. he sweeping the tion site. As he was (“District”) court’s denial of appeals the trial through opening three-sto- fell a door-sized judgment a matter of law motion for injuries that high, sustained serious ries in Robertson’s after a returned a verdict Robertson quadriplegic.2 him a rendered 92-CV-518, favor. In No. the W.M. Schlos- Schlosser, against the District and filed suit (“Schlosser”) entry appeals the Company ser duty to alleging had breached their that both Maryland Dry- judgment in favor of the place.3 filed a provide a safe work Schlosser (“Maryland Drywall”), deny- Company wall Maryland Dry- against third-party complaint indemnification claim. We Schlosser’s wall,4 between contending that the contract denying court conclude the trial erred Maryland Drywall required Schlosser judgment motion for as a matter of Drywall indemnify Maryland Schlosser. granting judgment law and in favor Maryland July court denied In the trial Drywall. Accordingly, reverse Maryland dismiss, ruling Drywall’s motion to appeals. in both indemnity provision clear on its face. was subsequently filed a sum-
Maryland Drywall motion, contending mary judgment I. indemnify if require it to contract did dispute. not in The The basic facts are motion negligent. That was also Schlosser apartment an District of Columbia owns also denied. Streets, S.E., building H known as at 7th and trial, Rob settled with Facility, Prior to Schlosser Capper Arthur which houses Drywall $3,000,000.5 Maryland low-income, housing The ertson for public residents. * safely plan ty, Schlosser’s Judge who testified that Judge was an Associate of this court Wagner changed argument. openings die time of Her status did not meet respect to the door Judge on June openings. securing wall standards for Chief brief, government observed that the 1. In its against originally filed suit several 3. Robertson removing project included was "substantial and were later dis- companies. Those suits walls, other asbestos, installing replacing three interior stairways, enlarging the win- missed. new stairwells or work, dows, plumbing and rehabil- electrical building.” itating the entire third-parly claim also filed a 4. The District contending Maryland Drywall, that the designed openings were 2. The door-sized Maryland Dry- Schlosser and contract between later. used with staircases to be constructed required of the District. wall meantime, they were used to hoist materials being building. When not and tools into were, purpose, openings ac- used for settlement, challenged Drywall Maryland Schlosser, supposed protected cording to be was rea- ruled the settlement but the trial court The plywood to the frames. sheet nailed sonable. presented expert safe- in construction claim, renewed its contention remaining that it was not liable Robertson’s District, indemnity provision alleged under the of the contract that the District could not Maryland Drywall, delegate provide place between Schlosser and a safe work court, itself, performed by because the reversing and the trial construction work ruled inherently dangerous Robertson indemnity provision require was an ac- did not tivity. job found that Maryland Drywall Robertson’s if Schlosser him awarded negligent.6 Schlosser was The trial court $6,000,000.7 legal princi also determined that the “same ples apply negli as much ... for concurrent appeals The District the trial court’s denial Thus, gence.” the trial court ruled that be of its motion for as a matter of require cause the clause did not arguing ordinary that “the usual hazards of Maryland Drywall Schlosser construction work are not within the ‘inher- *4 negligence proximate Schlosser’s was the ently dangerous activities’ doctrine” and that injury, require cause of the it also not did may delegate safety responsibilities it to a indemnity parties’ negligence proxi both general contractor.8 mately injury. caused the appeals grant Schlosser the trial court’s of judgment Maryland Drywall, of favor con- concluded, however, The trial court that tending indemnity agree- that “terms of an dispute there still remained three facts comprehensive ment be so broad and jury.... that “must be determined although express stipula- it contains no One, negligence [the of] whether Schlosser indemnifying against party’s neg- tion own proximate was the cause [Robertson’s] .of ligence, accomplishes purpose.” the same two, injuries; whether [the of] Schlosser maintains that it is entitled in- Maryland Drywall proximate was the cause demnity because the claim “arose out of the three, ... inju- [and] [Robertson’s] whether Maryland Drywall’s for in work called sub- of, ries arose out resulted from or in connec- Maryland Drywall contract and because provided tion with the execution of the work agreed all to cover and such claims.” for in the subcontract.” The trial court sub- interrogatories jury, mitted to the and the II. Maryland Drywall found that 92-CV-538, Appeal A No. District Co- negligent Schlosser were both and that each of lumbia v. Andre Robertson company’s negligence proximately caused injury. Robertson’s further found In reviewing the denial of a motion injuries arose out of or resulted from judgment as a of we matter examine were connection with the execution of light the evidence in most favorable provided the work for in the subcontract prevailing party, Finkelstein v. District Maryland Drywall. between Schlosser (D.C.1991) Columbia, 591, 593 A.2d 594 Relying on the earlier determination that the (en banc), “giving advantage of them the Maryland require Drywall contract did not every fair and reasonable inference that the indemnify parties negligent, if both were may justify.” evidence Columbia (D.C.1983) (cita 367, trial court entered in favor of Ma- Royal, v. 369 omitted). ryland Drywall. If, standards, ruling applying It is that that Schlos- tion those juror challenges ser in No. 92-CV-518. we that no reasonable could conclude noted, $3,000,000 initially 6.As the trial court ruled That sum was reduced to to reflect provision was clear on its face the amount of the settlement with Schlosser. required Maryland Drywall decision, reversing Schlosser. court, the trial challenges 8. The District also the trial court’s review, upon further concluded case denial of its claims Schlosser law that "unless the intention is un- Maryland Drywall. Because we hold that in words, equivocally expressed plainest in the circumstances there no these District, parties the law will consider that the not respect did we have no need to review ruling undertake to one the conse- that the District the trial court's quences negligence.” of its own entitled to indemnification.
651 (Second) obliged to direct. See liability, to reverse. then we are Restatement find (1985). § cmt. b Columbia) TORTS Etheredge See (D.C.1993) (stating standard A.2d however, rule, Dis Under juror concluding that no reasonable case, may be trict, in this the contractee v. Merrell negligence); Oxendine could find indepen performed if the “work liable Pharmaceuticals, A.2d Inc. 506 Daw dangerous.”10 dent contractor (citations omitted), (D.C.1986) cert. 1103-04 (citations omit at 209 Levy, supra, 587 A.2d denied, 1121, 107 110 S.Ct. 493 U.S. ted). circumstances, use In those (1990). L.Ed.2d 1028 id.; see nondelegable. See care becomes Howell, Columbia also District of question first address We (D.C.1992) (“one employs an who subject to tort the District remains whether involving independent contractor do work contract with liability despite its construction subject to danger to others ... special noted, the District was Schlosser. As to such physical harm caused theory that because found under the liable failure to take by the contractor’s others performed Robertson was the work danger”) precautions against such reasonable activity, the District omitted); (citation alternation and internal vicariously Columbia, liable.9 v. District Lindler (1974) 502 F.2d *5 jurisdiction, general rule In this of (exception on belief that because is based work, entity] hires inherently dangerous or some of the [someone “is that when nature work, reserving no to es to do certain should not be allowed another the contractee workmen, obligated guard liability and is cape the work or the control over either Thus, question we against dangers). relationship and contractor of contractee (as servant) the construction must resolve is whether opposed to master and exists in being performed Robertson was work injuries to is not liable for and the contractee dangerous, making the District vi herently resulting party a third from the work of any negligence of its inde cariously liable for Currier, Levy v. independent contractor.” contractor, pendent Schlosser. (D.C.1991) (footnote omit 587 A.2d ted) (citing Washington Metro. Area Transit particular of “[w]hether The resolution Inc., Prop., v. Plaza 448 A.2d Auth. inherently dangerous is es- kind of work L’Enfant (D.C.1982) (“general an indi 864 rule is that upon sentially determination based a relative injuries corporation vidual or is not liable Washing- case.” particular of the the facts resulting independent Auth., of an from the work supra, 448 Area Transit ton Metro. contractor”) (citation omitted)). omitted). general (citations This Vale A.2d at 868 using Bonnett, encompasses the view that those 191 F.2d rule 89 (1951), independent contractors should not be held the United States Court 339 District of Columbia held they Appeals not control for the responsible for activities do Inherently “[djanger a relative term. knowledge lack the and resources and often (D.C.1994) scarcely (argument n. 12 failed to 1123 9. Robertson contends that the District trial, emphasized appeal, preserve the construction on the issue of whether but mentioned inherently being performed by judg- him was an work sufficiently in motion for articulated responds dangerous activity. The District to that “parties are not limited ment n.o.v. and argued, by pointing out that it both contention below”) (quoting they precise arguments made post- verdict and in its its motion for a directed 519, 534, Escondido, Cal., City 503 U.S. Yeev. motion for as a matter trial (1992)). 1522, 1532, 153 118 L.Ed.2d S.Ct. 112 duty The crux of it owed no Robertson. Therefore, colleague, dissenting we unlike our implicit argument in its now is that preserved this issue. the District are satisfied argument court that it owed no in the trial delegated that it had to Robertson—because premised that because on the rationale 10. This is theoiy that Robertson's ac- to Schlosser—is the work, inherently dangerous of the nature agree; inherently dangerous. We tivity was not escape be allowed to should not the contractee fairly argument be held below “can the District's contemplate obligated and argument encompass this court." Sebas- its dangers. guard Columbia, such 959 n. tian District of Cooter, (D.C.1994); A.2d Mills v. 647 2 see also dangerous may unusually be defined as scaffolding walkways haz- struction work on recently ardous.” We observed that an in- inherently dangerous activity.” is an Id. at herently dangerous activity “is not limited to 45. The court further ruled that work “[i]f intrinsically work,” hazardous but rather “ex- scaffolding walkways were held dangerous tends to activities which be inherently dangerous activity, to be an then they per- the circumstances under which are projects ah construction would be classified Howell, supra, formed.” A.2d inherently dangerous as activities. Such a (citations omitted). holding expand would dan gerous activity theory beyond proper far Applying principles these in (citation omitted); scope.” Id. see also Pa case, stant conclude Robertson has States, F.Supp. laidis v. United failed to demonstrate that stock crew work at (M.D.Fla.1983) (employees indepen inherently dangerous a construction site is an painting dent contractor who were at an air “risk, activity recognizable or that it involves engaged in force base were not an inherent advance, physical harm to others which ly dangerous activity). itself, normally is inherent in the work or expected ordinary be course of the agree conclude, Jennings We prescribed way doing Levy, usual it.” did, that court stock crew work at a (citation omitted). supra, 587 at 211 construction site is inher- considered crew, including The stock consist ently dangerous activity, “then all construc- ed of construction laborers who stock and projects tion would be classified as inherent- building. They clean the construction site ly dangerous Jennings, supra, activities.” responsible carrying are also tools and F.Supp. Imposing liability at 45. materials to craftsmen at the various areas District under these circumstances would in- day around the construction site. On the “expand deed ac- accident, sweeping Robertson was trash tivity theory beyond proper scope.” far piles loading into it into trash containers. *6 Id.; Enserch, Inc., Gray see also v. 665 so, stepped falling As he did he backwards (“essen- 601, (Tex.Ct.App.1984) S.W.2d 606 through opening. the door Under the au question tial is whether the risk created is so below, thorities discussed we conclude that justify imposition ... unusual as to the juror no reasonable could find that the work strict for the harm that results from performed by Robertson constitutes inher it, though even it is carried on with all rea- ently dangerous activity as that term is de care”). sonable Because the District had no Vale, fined under these circumstances. See Robertson,11 independent duty other to hav- 121, supra, U.S.App.D.C. 89 191 F.2d at ing contractually delegated its (noting 339 distinction between an unsafe contractor, Schlosser, there is no basis for inherently dangerous condition and an condi recovery District. Robertson’s from the See tion). General Elevator Co. v. District Colum- virtually indistinguishable This case is (D.C.1984) (District bia, 120 States, Jennings F.Supp. from v. United 530 owed no other than the one it (D.D.C.1981), 40 where the trial court con- contractor). working scaffolding cluded that and sum, viewing light the evidence walkways inherently dangerous. was not Robertson, most that There, favorable to we hold plaintiff, employed at a construc- contractor, a matter of Robertson’s activities as a brought tion site an action States, stock member crew did rise the United who had hired contractor, injuries level of work. Accord- for suffered as the ingly, vicariously walkway. result of a fall from a The trial the District is not liable for inju- plaintiff court ruled that had failed to Schlosser’s that caused showing “that con- sustain his burden ries and the trial court erred by obtaining building obtaining building permits only require 11. Robertson contends that that permits, liability. We work be in with the the District has assumed construction accordance disagree provisions relating applicable regulations and observe that the and laws.
653 intention of the interpretation reflects the an judgment as a matter declining to enter Seckinger, 397 States parties.” United law.12 880, 885, L.Ed.2d 90 S.Ct. U.S. 92-CV-518, v. Ma- No. Sehlosser Appeal B. (1970). “expects to shift re- party If a Drywall ryland mutual negligence ... sponsibility for its claim turn now Schlosser’s We should parties to this effect intention of the granting judg that the trial court erred clarify the face of appear from Drywall. Maryland Schlos- ment in favor of Id.; Royal, supra, 465 see also contract.” that “the terms of ser contends (intention responsibility to shift A2d at 368 comprehen agreement be so broad and “plainly from the face must be evident although express no that it contains sive contract”). question then is whether The party’s indemnifying against a stipulation clearly reflects such provision this contract negligence, accomplishes the same own language purpose. We are satisfied that Maryland Drywall maintains purpose.” Mary- sufficiently clear of the contract indemnity agreement “specifi does not only for its Drywall responsible not land agree by its terms that it would cally indicate also negligence, but own Company for W.M. Sehlosser negli- encompass [Schlosser’s] “stretche[s] negligence.”13 own Seckinger, (quoting su- gence as well.” Id. 886). recognized pra, 90 S.Ct. at “[o]ne This court has 397 U.S. common, simple bases of of the most indemnify for The contract provides a contract that for it.” arising ... out of ... or “any all claims Pineda, Mfg. East Penn Co. v. execution of the work” in connection with the (citation (D.C.1990) quota and internal contract, by the and the contemplated omitted). indemnity provi tion marks injuries sustained determined contract Sehlosser and sion of the between Mary out of his work Robertson arose Drywall Maryland provided: contract, language of that Drywall. The land promptly indemni- The subcontractor shall parties at the time viewpoint of the from the fy and save and hold harmless made, is “so broad the contract was Contractor and the Owner intent plainly reveal an sweeping as to claims, expenses prop- all liabilities part incurred in whole or encompass losses including erty damage personal injury; Mo negligence of the indemnitee.” by the death, arising resulting out of or from or Roscoe-Ajax Corp., 115 ses-Ecco Co. of the work connection with execution 366, 369, F.2d *7 Agreement. for in this (1963); Corp. v. Bal Princemont Constr. see Co., A.2d 877 however, R.R. timore and Ohio indemnify provision, An “should (D.C.1957). Moses-Ecco, court was In permit construed to an indemnitee be provision upon interpret a contract negligence un- called recover for his own [or her] case.14 It presented in this firmly similar to the one court is convinced that such less the indemnity inherently supra, at 119. A contractual contends that the 12. The District also tort, however, claim, and in does not sound dangerous activity extend to doctrine does not therefore, recovery. See id. employees independent does not bar contractors and Furthermore, party may may not be employee while a “majority that an 117-18. view ... engages exempt for its person itself from tort who able to not recover from duties, contractu- though nondelegable there is no bar to independent the work contractor even liability. potential for such dangerous." we reverse the al indemnification Because Passenger Corp., 676 ground, R.R. against v. National judgment on another See Mead (D.Md.1987). F.Supp. we will not resolve this issue. Maryland Drywall argues that the part: provided, agreement in 14.That because Sehlosser clause is unenforceable (Moses-Ecco) agrees in "The Subcontractor concurrently negligent had a non- and because it * * * that he performance of this contract place. provide delegable a safe work law, indemnify and save harmless plain- times will at all tort a Under the District’s substantive (Roscoe-Ajax) and the Contractor negligence complete the Owner contributory bar tiff’s recovery, loss, damage injury any or recognize against because of jurisdiction does not as this resulting Co., arising property persons or comparative negligence. Elevator particular hold, “[n]o noted that form or words are unjustifiably verdict. Unless we are to view, negligence my needed but the intent to waive in that the bare assertion Moses-Ecco, must supra, attorney be clear.” District’s trial that “we (citation issues, duty” preserved F.2d at 688 our to Sehlosser omitted) (holding arguments “[i]t is difficult to con then the District has waived the any (a), phraseology ceive of broader than ordinary building Mo as a matter of agreement indemnify”)- ses-Ecco’s In construction work does not involve “inherent- Princemont, court, interpreting ly (b), this in dangerous” activity, may, a con if it even provision tract similar to in inherently dangerous activity the one the in doctrine case,15 stant held apply employees independent that when the terms of an does not indemnity agreement are so broad and com contractors. I would therefore sustain the prehensive, presumption “the is that verdict the District of Columbia. On parties hand, my had intended some limitation of the the other in view the District is all-embracing language, they argument would have in ex correct that it is entitled to Princemont, pressed Sehlosser, such limitation.” su indemnification and Sehlosser pra, 131 majority A.2d at 878. in turn —as the holds —is entitled to by Maryland Drywall. agree authorities,
We with these and we language are satisfied that the used in this sufficiently comprehensive contract was as to I. damages resulting
include indemnification for
others,
against, among
Robertson filed suit
negligence
from the
of Sehlosser. We see no
Columbia,
difference
in
the District of
between
formulation
W.M. Sehlosser
(will
Company,
“indemnify
Maryland Drywall Company,
contract
any
...
claims”)
alleging
activity
all
that the construction
and that found in
under-
Moses-Ecco
(will
loss”)
“indemnify against any
taken
each defendant
and Prin-
amounted to abnor-
(will
mally
dangerous activity
cemont
in
“assume all
the course of
loss”).
inju-
provision
causing
all
which
occurred
him
We view the
in this case
statement,
ry.
pretrial
giving
as clear and certain in
Robertson as-
its terms
rise to
(“The
ambiguity.
non-delegable
no
Id.
fact that
serted
had
the lan-
provide him
guage
comprehensive
workplace
with a safe
used
does not render
uncertain.”)
provision
dangerous activity
based on the
unclear or
being conducted. The District filed an an-
Accordingly,
stated,
for the reasons
summary judgment
swer but did not seek
granting
conclude the trial court
erred
ground
Robertson
either
raised
Maryland
Drywall.
favor of
Sehlosser,
hand,
appeal.
on the other
reversed,
hereby
and,
No. 92-CV-518 is
summary judgment
moved for
on the Dis-
hereby
No. 92-CV-538 is
reversed.
trict’s claim for indemnification under the
contract,
parties’
to which the District re-
FARRELL,
Judge, concurring
Associate
sponded
provisions
that the contract
estab-
part
dissenting
part:
“delegated]
responsibil-
lished that it had
all
*8
safety,
I have
ity
including supervision
combed the record in this case and
for site
of
am
to
pre-
prohibitions against
unable
conclude that the District
individual laborers and
conditions,”
argument
appeal
served either
for revers- work under hazardous
to Schlos-
ing
judge granted summary judgment
the denial of its motions for directed
ser. The
notwithstanding
verdict and
the
to
on this issue. As to
Sehlosser
contract,
performance
agreed:
from the
of this
includ-
It
that the subcontractor
cost,
loss,
ing any
damage
expense
and all
or
any
To assume all
for
and all loss
which the Owner
tain or incur on account of
or suit made or
of them
Contractor
sus-
and/or
damage
property
injury
to
and claims for
claim,
any
demand
person
to or death of
in connection with or
brought against
them or either
employee
growing
premises.
or on behalf of
of
out of the use of said
* * *
(Moses-Ecco).”
Princemont, supra,
See
issue of indemnification was It incorrect. gerous activity exception, equally nor for an appears attempting that the District is exemption employees broad equate inde- the issue of whether a pendent Superior owed to contractor. Rule 50 of the Plaintiff the District with the Procedure, issue of whether Court Rules Civil at the time Schlosser should indemni- trial, fy required liability. for its These a motion for directed ver- issues cannot equated. specific grounds The first dict to “state the therefor.” issue concerns the potential liability, while the sec- The revised rule now effective does not ond change materially, requiring issue concerns who should bear ulti- the standard responsibility mate resulting “specify judgment sought for the dam- motion to ages duty. for the breach of an existent moving the law on which the facts Currier, party judgment” (emphasis is entitled to add- Appeals Levy The Court of ed). 1991) A bare assertion that the District had (D.C.App. adopted obligation safety for worksite principle of Lindler v. District Co lumbia, Schlosser, 38[3] sufficiency challenging without U.SApp.D.C. (D.C.Cir.1974) excep- supporting of the evidence the classic that where the District con- here, performance delegation tracts tion to rule at does for the issue work, dangerous apply the District has the not meet this test. I would therefore guard against injuries that, parties principle to third F.2d
657 the unwilling to decide for I am system, trial and likewise jurisprudential our [i]n urges us appeal, the District in first time on as processes synchronized appellate are do, question employee of re to the difficult contemplation normally be that review will dangerous activi covery inherently under the submit- appropriately to matters confined reject urges us to ty The District exception. of in the court first ted for determination Colum holding the of Lindler v. raised Questions properly not resort. 39, 496, bia, 36, 502 F.2d U.S.App.D.C. 164 during proceedings the under preserved majority (1974), the with examination, 498 as inconsistent points asserted with not view,4 without further I am not convinced distinctly to but ‘precision indicate sufficient employ thesis, analysis can contractor spumed that we bar normally be party’s the will consistently recovery in context ees from this appeal. on Inc., Builders, 546 Meiggs v. Associated Avirom, 127 Miller denied, (D.C.1988), U.S. cert. A.2d 631 (1967) 469-70, (empha- 321-22 384 F.2d (1989) 3178, 104 L.Ed.2d 1040 S.Ct. added). sis (ordinarily, employees subcontractor majority may well correct The and, by general implication, sue contractor — per of the Robertson construction work sort receiving despite tort work landowner —in generally formed should not be considered as complex an issue compensation). er’s So inherently dangerous purposes this compensation interplay between worker’s delegation But I exception to the rule. can inherently dangerous activity excep and the say argue not the District’s failure to this energies it when engage tion not our should specifically in its point directed verdict mo summary judgment was neither on raised adequacy tions had no effect on the of the specific manner trial. nor in other Best, proof, plaintiffs see Howard Univ. District’s motions for I would hold (D.C.1988) (purpose properly and JNOV were directed verdict party] on “put [opposing motion to notice denied. alleged deficiency proof’), her framing legal issues submitted II. jury. particular, had the District not time, At the District correct conceded that the ac the same trial, decide, regard it tivity jury squarely to an issue raised issue was for Rob i.e., from might pressed vigorously more that it is entitled to indemnification ertson have of its contract jury Schlosser under terms for submission to the of his alternative ¶¶ 8-13) (My colleagues general theory (Complaint, with the contractor. this non-delegable duty stemming majority in the have no occasion reach breached issue). case was submitted right from its to control the contractor’s premised the Dis- by mandatory inspections by interrogatories via work on-site finding liability on the work inspector, employee. construction a District trict’s danger- inherently § performed (Second) See Restatement Robertson of ToRts stated, (1966); Perez, If, “you find City verdict form c Miami v. ous. comment in- engaged in that Mr. Robertson was (Fla.Ct.App.1987); 609 So.2d Miche work, your jury’s] State, dangerous [the herently P.2d letto v. 244 Mont. (1990) J., found affir- dissenting) completed.” If the (McDonough work is 997-98 they (“If control, question, next to matively on that were there an exercise of retained guard “the failure to the wall expressly matter as decide whether then does not who contract, through Mr. Robertson fell opening which safety duties under the sumed judge had negligence” as the general separate was due to contractor has a care”). negli- Accordingly, the District’s defined it.5 distinct of reasonable they question "yes,” guard If the answer 4. Lindler held that injuries persons resulting had to third whether Robertson were to decide further equally dangerous applied negli- work contributorily risk or been assumed persons generally employees not) third and to (if guard gent, whether "the failure District's contractor. *11 gence vel predicated non was on judge incorrectly vicarious trial relied. We summa- (and liability: negligence the Royal Sehlosser rized its in Elevator General as follows: subcontractor) failing guard to the wall ], {Royal held that an indemnifica- opening, jury, imputable found was tion clause similar to the one in this case to the only District as landowner if—but if— enough indemnify was not to broad engaged Robertson had been in inherently against liability negli- District for its own dangerous work, which the found to be gence. six-year-old plaintiff Royal The the case. The indemnification article of the injured pole was a a when fell on her at District’s provided: contract with Sehlosser construction near site her school. She company sued both the construction The Contractor shall and save District, alleging inter alia that
harmless
officers,
and all of
District
negligently
supervise
had
failed to
agents
against any
and servants
and all
school
in the
children
construction area.
liability arising
on,
claims or
from or based
a
The District filed cross-claim
of,
or
consequence
act,
a
any
or result
company
construction
based on an indem-
Contractor,
omission or
of the
default
his
nity clause in the construction contract.
employees,
subcontractors,
or his
in the
The trial court ruled
the District
performance of,
with, any
or in connection
cross-claim,
affirmed,
and we
hold-
required, contemplated
work
performed
language
that the contractual
could not
under the Contract.
encompass
be stretched to
the District’s
Because the
this case
independent duty,
breach of its own
as the
“act,
stemmed from the
omission or default
party
plaintiff
to whose care the
had been
Contractor,
employees,
of the
or his sub
hours,
during
entrusted
school
protect
to
contractors,” the District was entitled
in
to
injury ie.,
her from
that it had breached
—
demnification under the contract. See East
duty
a
plaintiff
which had not been
Pineda,
Mfg.
Penn
Co. v.
578 A.2d
delegated
company by
to the construction
(D.C.1990).
containing
indemnity
the contract
In General
Co. v.
Elevator
Co
clause.
lumbia,
(D.C.1984),
contractor obtain any lia- charge to that insurance act or
bility it incur as result his employees contractor or
omission
or subcontractors.
I must indemni- would hold that Schlosser
fy damages the District for the attributable jury’s finding
to the District virtue of the activity. dangerous
III. say agree I
It remains for me Maryland Drywall majority is con-
tractually obliged to Schlosser
damages resulting from the point On that Moses-Ecco Co.
Schlosser.
Roscoe-Ajax Corp., (1963), especially F.2d Corp. v. Baltimore &
Princemont Constr. (D.C.1957), Co., A.2d are
Ohio R.R.
controlling.7 Bryan, & Inc. See also Rivers (D.C. Corp.,
v. HBE 630-37
1993). RIPALDA,
Judy Appellant,
AMERICAN OPERATIONS al.,
CORPORATION, et
Appellees.
No. 94-CV-1101. Appeals. Columbia Court
Argued Jan. March
Decided ("the Owner”) Mary- provision required as well. bia 7. The same contractual Drywall Colum- the District of land