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02/28/91 BARRY S. LEVY AND ROBERTA WILLIAMS v.

February 28, 1991

BARRY S. LEVY AND ROBERTA WILLIAMS, APPELLANTS
v.
CHARLES G. CURRIER AND CENTRAL AMERICAN REFUGEE CENTER, APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. George H. Goodrich, Trial Judge

Belson, Terry, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Terry

Appellants Levy and Williams, who are husband and wife, own a town house on M Street, Northwest, next door to a town house owned by appellee Currier. They sued Currier for damages resulting from a fire that occurred when workmen, using an acetylene torch, attempted to remove a fire escape that was attached to Currier's house. Currier added the Central American Refugee Center (CARC), the employer of the workmen, as a third-party defendant. After a non-jury trial, the court entered findings of fact and Conclusions of law favorable to Currier and CARC and granted their motion to dismiss the complaint, albeit without prejudice. *fn1 Appellants contend on appeal that the trial court erred in (1) failing to determine whether the use of an acetylene torch is an inherently dangerous activity, which would nullify Currier's shelter from liability under the independent contractor rule; (2) failing to determine whether Currier was negligent in hiring CARC to remove the fire escape and therefore was liable for the negligence of CARC's workmen; (3) failing to find that CARC was an agent of Currier, which would make Currier vicariously liable for the negligence of CARC's workmen; and (4) failing to find Currier negligent under the doctrine of res ipsa loquitur. We agree with the trial court that CARC was not an agent of Currier and that res ipsa loquitur is not applicable to this case. We hold, however, that the trial court erred with respect to the acetylene torch and negligent hiring issues, and thus we reverse the judgment and remand the case for further proceedings. *fn2

I

Appellants' town house was seriously damaged by a fire which began in a bird's nest on a window sill of the town house next door, owned by appellee Currier, and then spread to the roof of appellants' home. At the time of the fire, Currier's house was undergoing renovation under the supervision of his agent, Curtis Johnson. *fn3

Some time before the date of the fire, Currier had instructed Johnson to have a fire escape removed from the front of his house. Paul Leach, a contractor who was doing work for CARC, mentioned to Johnson that CARC was in need of a fire escape for its own building. Leach asked Johnson whether he would consider donating the fire escape, on behalf of Currier, to CARC. Johnson then spoke with Joaquin Dominguez Parada, the executive director of CARC, regarding the donation. Dominguez orally agreed to accept the fire escape on behalf of CARC and to arrange to have it removed, and further assured Johnson that CARC would accept responsibility for any damage to Currier's town house that might result from its removal. Johnson's belief in Dominguez's authority to carry out this arrangement derived both from his conversations with Dominguez and from representations made by Leach. *fn4

Johnson testified at trial that he accepted Dominguez's assurance that CARC would engage someone competent to effect the removal of the fire escape. Johnson said he "possibly might have mentioned" to Dominguez that the fire escape could simply be unbolted from the building, since it appeared to be attached by "long bolts and nuts," but he understood from Dominguez that welding equipment might be used. Johnson conceded that he did not know "whether these welders who were going to be utilized had ever engaged in this type of operation before" or what safety precautions, if any, might be taken as part of the removal operation.

Finally, Johnson stated that he was not aware of any birds' nests on the window sills of Currier's house at the time CARC's workmen arrived to remove the fire escape. He had previously seen to it that such nests were removed as they were found. No particular warnings were given to Dominguez or CARC regarding any adverse conditions on the premises because Johnson assumed that "anyone that was hired by Mr. Dominguez . . . who would have any instruments such as a torch would have the common sense to be able to check out and see whether there was any flammable material there that could indeed possibly cause a fire."

On the appointed morning, workmen hired by CARC appeared at Currier's home to remove the fire escape, bringing with them a saw, a ladder, and other equipment. *fn5 Marthlu Bledsoe, a neighbor, talked with the men, who spoke Spanish, and was told that they were affiliated with a non-profit group to whom Mr. Currier had given the fire escape and were taking it with Currier's permission. The workmen then began to remove one section of the fire escape with the aid of a torch; as they did so, Bledsoe saw "a small, very small shower of sparks." She then left to run an errand, and when she returned fifteen minutes later, she found the entire street blocked by fire equipment. Firemen were in the process of extinguishing a fire which, she soon learned, had damaged Mr. Currier's house and the two houses on either side, appellants' on the west and hers on the east. Several days later after a fire marshal had forbidden the further use of a torch, workmen came back and removed the rest of the fire escape with hacksaws. *fn6

Thomas Gardner, a fire inspector with the District of Columbia Fire Department's Investigation Unit, examined the site of the fire to determine its cause. He concluded that the fire began when a piece of slag (molten metal) or a spark from the acetylene torch used by the workmen landed in a bird's nest, which was on a window sill near the roof of Currier's house. Once ignited, the fire quickly moved from the bird's nest into Currier's house and then spread to the two adjoining houses. The bird's nest, according to Gardner, was approximately five feet from the point on the fire escape where the torch was being used. Inspector Gardner noted that the workmen did not have a fire extinguisher with them, nor had they obtained a permit for the work they were doing as mandated by the District of Columbia Fire Prevention Code. *fn7

Monica Yriart, a staff attorney with CARC, testified that the by-laws of CARC did not grant the executive director, Mr. Dominguez, the right to commit funds for CARC without the approval of the Board, but that he was vested with authority to run the organization.

At the close of the trial, the Judge heard argument from counsel on the defendants' motion to dismiss the complaint and then took the case under advisement. A few days later he issued an order which contained the following Conclusions of law:

Plaintiffs argue that defendant Currier was negligent and thus liable to plaintiff on the theory of res ipsa loquitur. At the close of trial, third-party defendant CARC renewed its motion to dismiss on the grounds that res ipsa loquitur does not apply to this situation and urging that the complaint against CARC be dismissed as showing no negligence on the part of CARC. Defendant Currier joined third-party defendant CARC's motion to dismiss claiming that no negligence was shown on the part of Currier.

The doctrine of res ipsa loquitur only applies in cases "where there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of defendant is the most plausible explanation for the injury . . . ." Prosser and Keeton, The Law of Torts ยง 40 p. 257 (5th ed. 1984) (citing Roark v. St. Paul Fire & Marine Insurance Co., [415 So. 2d 295 (La. App. 1982)]. Therefore, the ...


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