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Casanova v. Marathon

September 24, 2008


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


This case is before me for all purposes including trial. Currently pending and ready for resolution is the issue of Marathon's liability for plaintiff's injuries. For the reasons stated below, plaintiff's claims against Marathon will be dismissed with prejudice insofar as they are or could be premised on any theory of vicarious liability. I also find, however, that whether liability can be imposed upon Marathon as an employer under the Industrial Safety Act, D.C. Code § 32-808(a),*fn1 raises a genuine issue of material fact that can only be resolved by a trial.


On August 11, 2008, I granted Capitol Paving's motion for summary judgment against plaintiff. I also ordered plaintiff to show cause why his claim against Marathon should not be dismissed because there is no genuine issue of material fact as to Marathon's liability and that Marathon is entitled to judgment as a matter of law.


I. Plaintiff's Theory of the Case Vis À Vis Marathon

In the Complaint, plaintiff asserted a claim of negligence against Marathon. Specifically, plaintiff claimed that Marathon, as the general contractor of the construction project, "owed a duty to maintain a safe worksite to all workers, such as the Plaintiff, who were present on the work-site." Complaint ("Cmpl.") ¶ 2. According to plaintiff, Marathon breached its duty when it "negligently failed to inspect, oversee, report, monitor and maintain a safe work site for all workers on site such as the Plaintiff." Cmpl. ¶ 7. According to plaintiff, "[t]he law in the District of Columbia is clear that a general contractor has both a common-law and a more expansive statutory duty to provide 'reasonably safe working conditions' to all wage earners on site such as the plaintiff (D.C. Code Section 32-808 (2001 Edition) Martin v. George Hyman Construction Company, 395 A.2d 63 (D.C. 1978)." Plaintiff's Response to the Show Cause Order Issued on August 11, 2008 ("Plains. Resp.") at 3. Specifically, plaintiff claims that Marathon, through Colin Marshall, its project manager, failed to maintain a safe worksite with respect to the area where the power lines fell on May 7, 2002. Id. at 4-9.

II. Analysis

A. Marathon's Common Law Obligation and Vicarious Liability

In the District of Columbia, "[t]he well-established general rule . . . is that when a person hires another to do certain work, reserving no control over either the work or the workmen, a relationship of contractee and contractor exists (as opposed to master and servant), and the contractee is not liable to a third party resulting from the work of the independent contractor." Levy v. Currier, 587 A.2d 205, 209 (D.C. 1991). Accord W.M. Schlosser Co., v. Md. Drywall Co., Inc., 673 A.2d 647, 651 (D.C. 1996); Wash. Metro. Area Transit Auth. v. L'Enfant Plaza Props., Inc., 448 A.2d 864, 868 (D.C. 1982). "This general rule encompasses the view that those using independent contractors should not be held responsible for activities they do not control and often lack the knowledge and resources to direct." W.M. Schlosser, 673 A.2d at 651 (citing Restatement (Second) of Torts § 409 cmt. b (1985)).

This rule does not yield to the exception, discussed in the Restatement of Torts (Second) § 427, because of a claim of an employee of an independent contractor, like Casanova, that he was engaged in inherently dangerous activity. To the contrary, in Velasquez v. Essex Condominium Ass'n, 759 A. 2d 676 (D.C. 2000), Velasquez, who worked for a company that had been hired by Essex Condominium Association to do certain work, attempted to impose vicarious liability, respondeat superior, upon the Association when he was hurt renovating the façade of the Essex Condominiums. The D.C. Court of Appeals rejected Velasquez's attempt to hold Essex Condominium liable upon a theory of respondeat superior because he was performing an inherently dangerous activity. The court of appeals stated:

Velásquez also argues that although the general rule is that a contractee is not liable for the negligent acts of its independent contractor, see, e.g. Washington Metro. Area Transit Auth. v. L'Enfant Plaza Properties, 448 A.2d 864 (D.C.1982), Essex and Zalco have a non-delegable duty to him because his work on the scaffold is an inherently dangerous activity. See Restatement (Second) of Torts § 427. Velásquez's*682 claim is foreclosed by this court's holding in Traudt, 692 A.2d 1326, 1337-38, that "employers of independent contractors are not vicariously liable to the employees of the independent contractor under sections 416 and 427 of the Restatement." At oral argument appellant's counsel contended that this holding is in conflict with the decisions in Lindler v. District of Columbia, 164 U.S.App.D.C. 35, 502 F.2d 495 (1974), which is not binding precedent, and Fry v. Diamond Constr. Inc., 659 A.2d 241 (D.C.1995), which the Traudt majority distinguishes. See Traudt, 692 A.2d at 1336. But see id. at 1339-40 (Ferren, J., dissenting). We are thus bound to follow the Traudt majority and dismiss Velásquez's claim. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971) ("[W]e have adopted the rule that no division of this court will overrule a prior decision of this court ... such result can only be accomplished by this court en banc.").FN3

Id. at 681-82.

Therefore, Casanova may not hold Marathon vicariously liable for the injuries he suffered when employed by the independent ...

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