U. Telegraph Co., 156 N.Y. 75, 50 N.E. 500 (1898).
The facts in Higgins v. Western Union Telegraph Company, supra, are analogous to the instant case. In that case the Western Union Company had employed a contractor to make repairs to its building, including the installation of elevators. The elevators were installed, but had not yet been turned over by the contractor, although Western Union used them in carrying passengers, and employed and paid the elevator operators. The plaintiff, a plasterer, in the employ of the contractor, was directed to plaster an elevator shaft, and so he asked the elevator operator to move the car up and down the shaft, carrying the plaintiff on top of it so that he could use the car as a platform. As a result of negligence on the part of the elevator operator, the plaintiff was injured. The trial court held Western Union liable. However, on appeal the court of last resort held that the elevator operator, in performing the service which resulted in the accident, was not acting as the servant of the company which employed and paid him, but was doing the work of the contractor, under the direction of the plaintiff. The D.C. Court of Appeals followed the reasoning of the above decision in Sherwood v. Warner, supra. In that case the janitor of a building was asked to assist an elevator repairman who had been called to fix the elevator in the defendant's building. The repairman was subsequently injured as a result of the janitor's negligence in operating the elevator at the repairman's request. In its holding that the owner of the building was not liable for the janitor's negligence, the court considered relevant that the "elevator was in the hands of the [repairman] for repair, and so far as shown, [the owner] had no control over it, and his servants were not engaged in operating it for him, or in their regular line of employment." 27 App.D.C. at 68.
More recently, the United States Court of Appeals for the District of Columbia has established a test to determine the liability of the first employer for an injury to a person or property resulting from his employee's act or omission when the employee is under the direction of an independent contractor. The test is: did the employee fail to exercise the "appropriate degree of care and skill." The first employer is not liable "if the injury was caused, not by any lapse or lack of care by the [employee] in the operation of his crane * * *" and "because the particular utilization ordered and directed by the [independent contractor] was either foolhardy in its original conception or carelessly supervised in its execution." Ciejek et ux. v. Crane Service Company, 122 U.S.App.D.C. 91, 351 F.2d 788, 792 (1965).
Utilizing this test Georgetown University is not liable since the independent contractors knew, and the Court finds as fact from the evidence that Mr. Ohme, the plant supervisor, had not been fully instructed in the operation of the new oil power plant, and further finds that the contractors could not expect him to turn the system off unless specifically ordered to do so. The evidence is clear that Mr. Ohme did not negligently turn on the pumps, and that he did so under the direction of the mechanical contractors. Nor can it be said that Georgetown was responsible for the oil leak because its employee did not turn the pumps off or switch on the two-way transfer valve, since he was not instructed about the probable consequences of leaving the pumps on without turning on the two-way transfer valve. The Court concludes that Georgetown's employee acted under direction of an independent contractor who retained absolute control of the power system at the time of the oil leak.
The Court has carefully examined the cases cited by the Government in its Trial Memorandum and Memorandum on Control. The Court believes that it can distinguish all of those cases from the present case on the ground that the various defendants had direct control over their individual operations. For example, in Holden v. United States, 24 App.D.C. 318 (1904), cert. denied, 196 U.S. 639, 25 S. Ct. 796, 49 L. Ed. 631 (1905), the gaslight company knew that gas and oil were flowing into the Potomac and admitted that they had direct control. Their sole defense was that the spillage was necessary in order to supply gas power to the City of Washington. In Brennan Construction Company v. Cumberland, 29 App.D.C. 554 (1907), the court held Brennan liable because they had placed the oil storage tanks in a precarious position on the banks of the Potomac River, approximately 200 feet from the water. Once again, Brennan had direct control at the time the oil spilled into the river. Finally, in United States v. Standard Oil Co., 384 U.S. 224, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966), Standard Oil was in direct control of the shut-off valve at the dockside which had been left open accidentally.
The Court is fully aware that the purpose of the relevant statutes in the case at bar is to minimize possible injury to persons and property. Accordingly, specific intent to violate them is not required. The Court believes there can be no violation unless the defendant is in a position to prevent such damage. There can and should not be any indictment where, as here, the laudatory purpose of a strict liability statute and the public policy is not served by charging a university with a criminal offense under circumstances where they did everything a reasonably prudent person could have or might reasonably be expected to have done. The evidence indicates that the defendant did nothing more than contract to pay an independent contractor to erect a power plant facility, so as to enable them to carry out the basic Congressional mandate contained in their Charter, namely, to provide an education for its students.
In cases like the one here involving strict liability, while not requiring the usual element of criminal intent, they do necessitate some element of control by those indicted. In the instant case, control is lacking, and to find guilt here would require the elimination of the common sense intendment of the statutes here involved. When one is not in control of facilities which lead to a violation of statutes like those in the case at bar, the ultimate result or damage to persons or property should be examined in the light of the Congressional policy to impose strict liability upon only those corporations or individuals who have it peculiarly within their power through the exercise of due diligence to protect the public. To stretch the instant statutes to their logical extreme would be to allow the Government to criminally indict even the most unrelated persons and business entities instead of the real perpetrator.
Based on the preceding findings of fact and conclusions of law, the Court finds Georgetown University not guilty of violating 33 U.S.C. § 407 (1964) and not guilty of violating 22 D.C.Code § 1703 (1967).
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