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Bostic v. Henkels and McCoy

April 06, 2000


Before Wagner, Chief Judge, and Farrell and Reid, Associate Judges.

The opinion of the court was delivered by: Farrell, Associate Judge

Appeals from the Superior Court of the District of Columbia

(Hon. Richard A. Levie, Trial Judge)

(Argued February 17, 2000 Decided April 6, 2000)

Plaintiff (Bostic) was injured when he partially fell through plywood boards that covered a trench and served as a temporary sidewalk. The trench had been dug by defendant Henkels and McCoy, Inc. (H&M), while performing work as an independent contractor on behalf of the Washington Gas Company. Bostic sued H&M *fn1 alleging that it had negligently maintained the plywood covering over the excavation. At the close of Bostic's case, the trial court directed a verdict for H&M primarily on the grounds that Bostic had not proved what duty H&M owed to him (hence had breached), nor what standard of care governed any obligation H&M had to maintain safe covering over construction trenches. We hold, to the contrary, that Bostic presented sufficient evidence to allow a jury to decide whether H&M negligently failed to maintain a safe trench covering designed as a temporary sidewalk for pedestrians such as Bostic. We therefore reverse the directed verdict.


In 1994, as part of the Green Line Metro construction, H&M was hired by Washington Gas to reposition gas lines along the new Metro construction route. As part of the work, H&M would dig trenches and sometimes cover them temporarily with 4' wide by 8' long plywood boards laid end to end to serve as temporary sidewalks. *fn2 On the evening of August 10, 1994, Bostic was walking home in the Columbia Heights area of Northwest Washington where H&M had a covered trench. He testified that, after stopping to talk and joke with his aunt inside a nearby courtyard, he entered Fourteenth Street and began walking toward his apartment, which required him to use the temporary plywood sidewalk covering the trench. As he described it, the plywood had been there for "several months" and was "just scattered around . . . covering the trench over the sidewalk. . . . [T]he plywood boards . . . [were] just scattered . . . over top of each other." Nails were protruding from the plywood, but, in his recollection, "the edges of the plywood [had never been] fastened to the edge of the trench." Bostic walked a few steps on the plywood but then lost his footing, and one of his legs fell into the trench up to his kneecap through a hole in the covering. An eyewitness, Willie Diggins, came to his aid and saw a six to seven inch gap between two of the boards where Bostic had fallen. Diggins confirmed that the boards had nails sticking up out of them, and he saw no safety cones, plastic taping, or caution signs in the vicinity of the trench. A supervisor for Washington Gas, called to the scene that night, testified that he "saw a lot of plywood lying around on the sidewalk . . . pushed back from over the trench," covering "just one spot" of it.


Bostic called no officers or employees of H&M as witnesses, and offered no proof of the contractual agreement between Washington Gas and H&M. He likewise called no expert witness and introduced no regulations or other published standards on what constituted due care in the present setting. In directing a verdict for H&M at the end of Bostic's case, the trial court pointed first to the lack of "sufficient testimony as to . . . what was required under the contractual arrangement between Washington Gas and [H&M]," explaining that "the jury would have to speculate that it was [H&M], and not Washington Gas, who had the obligation for maintaining the covers on these trenches." Besides this perceived lack of proof that H&M (and not Washington Gas) owed a precautionary duty to pedestrians such as Bostic, the court found "no evidence upon which the jury can conclude what the proper standard [of care] would be for maintaining these [trench] covers." Finally, "assuming . . . that [H&M] had any responsibility as opposed to Washington Gas in this . . . case," the court found "absolutely nothing" in the evidence to show that any defects in the covering had been "called to the attention of" H&M so as to impose a duty to repair them on the defendant.


"A directed verdict is proper only if there is no evidentiary foundation, including all rational inferences from the evidence, by which a reasonable juror could find for the party opposing the motion, considering all the evidence in the light most favorable to that party." Pazmino v. Washington Metro. Area Transit Auth., 638 A.2d 677, 678 (D.C. 1994). Bostic argues that in directing a verdict against him, the trial court mistakenly considered the contract between Washington Gas and H&M to be the only source of any duty H&M owed a pedestrian such as himself. We agree. The duty of a contractor to take reasonable safety measures to protect the public from hazards created by its work does not stem primarily from its contractual relationship with the employer or contractee. Rather, it is a duty imposed by the common law. See, e.g., Pastorelli v. Associated Eng'rs, Inc., 176 F. Supp. 159, 163 (D.R.I. 1959) ("Proof of [the] contents" of contracts for work are "material and relevant" but "cannot serve to relieve the parties to those contracts of their common-law duty to exercise reasonable care for the safety of others in the performance of their work under [the] contracts."); 64 Am. Jur. 2d Public Works and Contracts § 133, at 1004 (2d ed. 1972) ("Liability [of a contractor performing public works] . . . is based not upon the contract with the public authorities or upon a failure to perform the work in accordance with that contract but upon the contractor's negligence and the tortious breach of duty imposed upon him by common law."). See also 41 Am. Jur. 2d Independent Contractors §§ 65, 66, at 464-67 (2d ed. 1995); 65 C.J.S. Negligence § 95, at 1053-55 (1966). This court assumed as much in Goodman v. Sears Roebuck Co., supra note 2, in which the plaintiff too alleged injury from a fall on a temporary covered walkway constructed negligently by or on behalf of the defendants. The trial court directed a verdict for the defendants because no evidence established that the walkway (which might have been on public property) "was under the control of either defendant." Id. at 406. In reversing that decision, we took for granted a construction contractor's duty otherwise to exercise reasonable care toward pedestrians, and stated: "One who creates a dangerous condition is responsible for his acts regardless of legal control over the area." Id.

Courts elsewhere too have recognized that, regardless of its contractual arrangements, an independent contractor may be liable to the public for injuries of the sort Bostic suffered. In Hickman v. Parks Constr. Co., 76 N.W.2d 403 (Neb. 1956), for example, the defendant (Parks) contracted with the Officers Club at an Air Force Base to make improvements requiring excavation of a ditch. Hickman had attended a party at the Officer's Club and, while walking to a parking lot situated beyond the excavation site, fell into the ditch. Parks defended by asserting that the club manager (Major Morrow) was responsible for safety precautions at the excavation site. In rejecting this defense the Supreme Court of Nebraska stated:

The general rule . . . which governs where a party is responsible for a dangerous place, agency, instrumentality, or operation likely to cause injury or damage to persons or property rightfully in its proximity, is that he is charged with the duty of taking due and suitable precautions to avoid injury or damage to such person or property, and his failure to take such precautions constitutes negligence.

This rule[,] applied to excavations[,] requires a contractor making an excavation on property of another to provide such protection as would guard persons rightfully on the property against any ...

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