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Velaquez v. Essex Condominium Association

September 21, 2000


Before Farrell, Ruiz and Glickman, Associate Judges.

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

Appeal from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)

Argued October 28, 1999

This is an appeal from summary judgment granted to appellees, Essex Condominium Association ("Essex"), the owner of Essex Condominiums, and Zalco Realty Company ("Zalco"), Essex's property manager. Appellant Marvin Velásquez*fn1 sued appellees for injuries received while employed by EV-Air-Tight, an independent contractor engaged by Essex to perform work at the Essex Condominium, as the result of a fall from a scaffold in the performance of that work. Appellant Ada Beatriz Canales sued appellees for loss of consortium arising out of Velásquez's injuries. Appellants argue that summary judgment should not have been granted because the trial court erred, 1) in holding that Essex and Zalco did not have control and custody of the workplace involved in Velásquez's accident and therefore were not liable under the District of Columbia Industrial Safety Act, D.C. Code § 36-222 (1), -228 (a) ; 2) in finding that the activity in which Velásquez was involved, grinding concrete from a scaffold, was not an inherently dangerous activity; and 3) in its finding that the appellants were not married at the time of the accident. We affirm.

I. Factual Summary

A. The Contract

Essex contracted with EV-Air-Tight for the renovation of the exterior concrete facade of its building. The form agreement provided that Ev-Air-Tight "shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures" of the construction, though Essex retained "the right at all times to examine the supplies, materials and equipment used by the Contractor and to observe the operations of the Contractor . . . ." Under the contract Ev-Air-Tight was "wholly and totally responsible for job and site safety . . . includ[ing] . . . the erection of barricades, temporary fencing to surround the site and as otherwise necessary." Ev-Air-Tight was also "responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract," as well as to "take reasonable precautions for safety of, and . . . provide reasonable protection to prevent damage, injury or loss to: employees on the Work and other persons who may be affected thereby." In addition, Ev-Air-Tight was obligated to "comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons and property and their protection from damage, injury or loss." The contract further obligated Ev-Air-Tight to "obey . . . the rules and regulations which may from time to time during [its] work be promulgated by [Essex] for various reasons such as safety, health, preservation of property or maintenance of a good and orderly appearance to the area." Essex "reserve[d] the right to perform construction or operations related to the Project."

B. The Accident

On March 26, 1996, Velásquez was seriously injured in a construction accident while renovating the facade of Essex Condominiums. Velásquez, his safety harness unhooked from the safety line, fell over seventy feet to the ground while working on a two-point suspension, motorized scaffold, situated between the seventh and eighth floors while cutting concrete off the overhead balcony with an electric grinder. Velásquez testified in a deposition that he had been instructed in the proper use of the safety harness and instructed to wear the safety harness at all times. He had been on the scaffolding more than twenty times prior to his fall, and, according to Velásquez, always wore the safety harness hooked to the line as he had been instructed. He has no memory of the fall. Although fellow employees saw Velásquez falling, none could testify as to how or why the fall took place, or the circumstances of the fall. As a consequence of the fall, Velásquez suffered serious injuries: a fractured right femur, multiple fractures to his face and skull, laceration and hematoma of his right kidney, a collapsed right lung, brain injury and multiple contusions. These injuries required emergency surgery. Velásquez was comatose for eight days, hospitalized for two weeks and bed-bound for an additional four months. Velásquez suffers continuing physical effects from the injuries received in the fall. He has a slowed mental capacity; he suffers permanent memory loss of the events of the entire week of March 26, 1996. Velásquez and Ada Beatriz Canales were officially married July 13, 1996.

II. Standard of Review

"On appeal from the trial court's entry of summary judgment, this court conducts a de novo review of the record and applies the same principles employed by the trial court in initially considering the motion." Associates Fin. Servs. of America, Inc. v. District of Columbia, 689 A.2d 1217, 1220 (D.C. 1997). Summary judgment is proper under Rule 56 (b) where the record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Big Builders, Inc. v. Israel, 709 A.2d 74, 76 (D.C. 1998). The court must view all facts and inferences in the light most favorable to the non-movant, and summary judgment should not be granted unless the moving party can show that no reasonable juror could find for the non-moving party. See Galloway v. Safeway Stores, Inc., 632 A.2d 736, 738 (D.C. 1993).

III. District of Columbia Industrial Safety Act

The District of Columbia Industrial Safety Act (the "Act"), D.C. Code § 36-228 (a) (1993) provides that:

[e]very employer shall furnish a place of employment which shall be reasonably safe for employees, shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably safe and adequate to render such ...

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