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04/24/92 DISTRICT COLUMBIA v. DEDRICK HOWELL

April 24, 1992

DISTRICT OF COLUMBIA, APPELLANT
v.
DEDRICK HOWELL, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Sylvia Bacon, Trial Judge)

Before Ferren, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: Appellees Dedrick Howell and his parents sued the District of Columbia and The American University for severe injuries which Dedrick sustained because of an accidental explosion during a chemistry class for gifted and talented children at the Ben W. Murch School summer program. After a ten-day trial, a jury found the District of Columbia negligent under each of several alternative theories: (1) the principal of the Murch School, Mary Gill, had failed to exercise ordinary care for the safety of the children in the summer program; (2) the director of the program, Greg Butta, had failed to exercise ordinary care, and because he was an apparent agent of the District of Columbia, his negligence was attributable to the District; (3) the chemistry teacher, A. Louis Jagoe, was also negligent and his negligence was attributable to the District because he was an independent contractor engaged in an inherently dangerous activity; *fn1 (4) both Butta and Jagoe violated District of Columbia regulations against manufacturing fireworks; and (5) the District, by permitting the presence and use of dangerous chemicals, failed to maintain the school premises in a reasonably safe manner. The jury awarded eight million dollars to Dedrick individually for pain and suffering, one million dollars to his parents for past and future medical expenses, and one million dollars to each of Dedrick's parents individually for loss of parent-child consortium. *fn2

In a post-trial motion, the District challenged each basis of liability as well as each damage award. In a Memorandum of Decision and Order, Judge Sylvia Bacon denied the District's motions for a directed verdict, judgment notwithstanding the verdict, and new trial or remittitur. On appeal, the District again attacks each ground of liability and the award of damages for loss of parent-child consortium and future medical expenses. It asks alternatively for a new trial because the verdict was against the weight of the evidence and because of trial errors. It does not challenge independently the denial of a remittitur. We affirm the judgment as to liability but reverse the award of damages for loss of consortium and future medical expenses.

I.

Evidence established that the Murch School Summer Discovery Program was designed to provide hands-on education for gifted and talented eight and nine year old children. The program originated in 1985 when Mrs. Gill, the Murch School principal, attended a reception at Mount Vernon College arranged by Greg Butta, a Ph.D candidate at The American University, to advertise the success of a summer program he had conducted at Mount Vernon. The program interested Mrs. Gill, and after several Discussions, Butta sent her a formal proposal for conducting a similar program at the Murch School. Gill proposed changes to the proposal, then solicited and received approval for the program from the Assistant Superintendent for the District of Columbia Public Schools. *fn3 Brochures for the program drawn up by Butta were sent home with the Murch School pupils and mailed out, under school letterhead, to parents whose children attended other District schools.

Butta hired the staff for the summer program, including some of the instructors who had taught in the Mount Vernon program. Mrs. Gill, however, reviewed all of the instructors' resumes, had veto authority over their hiring, and interviewed most of the staff, including A. Louis Jagoe, before the hiring was made final. Jagoe, who was hired to teach chemistry to the eight and nine year olds in the program, held a master's degree in chemistry and was a Ph.D candidate at The American University. Before the first general staff meeting, he told Butta that as part of the class he would do a luminescence experiment and a "cold-pack" experiment, and wanted to make sparklers with the children. Jagoe and Butta discussed the safety of the sparkler experiment only in regard to the location where the children would be allowed to light the sparklers.

On August 1, 1985, a staff meeting was held at which Gill, Butta, and all instructors and counselors were present. Each instructor gave a brief talk about what he or she intended to do in class. Several instructors testified that Jagoe told the group, including Mrs. Gill, that he planned to make sparklers as one of the chemistry experiments. Gill, who was in and out of the meeting, did not remember hearing Jagoe discuss the experiment, although notes she took at the meeting reflect that she heard him discuss the luminescence and cold pack experiments, and asked him questions about these. Gill spoke and emphasized the "hands-on" nature of the program and her hopes for its success.

One child attending the program was nine year old Dedrick Howell, whose parents enrolled him after receiving the school brochure in the mail. The accident occurred on August 12, 1985. At the beginning of the chemistry class, Jagoe distributed his "recipe" for sparklers to the children and also wrote it on the black board. Along with other chemical ingredients, the recipe called for the use of potassium perchlorate as the oxidizing agent. Potassium perchlorate was described at trial as an extremely unstable and highly volatile chemical often used to make rocket fuel. Commercially made sparklers are not made with potassium perchlorate.

The children scooped the chemicals, including the potassium perchlorate, out of jars and, using pestles, ground up the mixture in mortars. While they were combining the chemicals, Jagoe ignited three different chemical mixtures at the front of the room with a butane lighter. Butta was present for one of the ignitions when he entered the room to drop off metal hangers for use in the experiment. Mrs. Gill also entered the room at one point, and saw the children working at tables wearing goggles or glasses. She also saw Jagoe at the front of the room lighting the chemicals, with a fire extinguisher on the table next to him. The ignition created what she described as a small "puff" about the size of a baseball, accompanied by a flash of colored light. She testified that she did not know what Jagoe was doing and that he had never mentioned he would do experiments requiring flame or ignition; she associated what he was doing with the luminescence experiment. *fn4

The children continued to grind the material while a counselor, Rebecca Seashore, distributed pieces of metal hangers to be dipped into the mixture at a later time. Dedrick Howell was specifically told not to dip the hanger into the material until instructed to do so. Moments later the chemicals exploded in front of Dedrick. The chemicals burned at 5000 degrees fahrenheit, and Dedrick was burned over 25% of his body including his hands, arms, chest, and face. He was rushed to Children's Hospital. His burn treatment in the following months included several stays in hospital and rehabilitation centers, multiple skin grafts, surgery to reopen the scars that constricted his movement and circulation, painful physical therapy that was continued at home, and both in-patient and out-patient psychotherapy.

II.

We deal first with the issue of liability. As stated previously, the jury found the District of Columbia liable on alternative theories of negligence, recording its findings on a special verdict form. If the evidence was sufficient to sustain the verdict on any one of these theories, then the denial of the motions for directed verdict and judgment notwithstanding the verdict was proper. Cf. Nimetz v. Cappadona, 596 A.2d 603, 606-08 (D.C. 1991). Because we conclude that there was ample evidence from which the jury could properly find Jagoe to be an independent contractor performing inherently dangerous work for the District of Columbia, thus making the District vicariously liable for his negligence, *fn5 it is unnecessary for us to consider the other grounds of liability.

An employer generally is not liable for injuries to third parties caused by an independent contractor over whom (or over whose work) the employer has reserved no control. Levy v. Currier, 587 A.2d 205, 209 (D.C. 1991). There ...


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