TAMM, Circuit Judge:
These consolidated cases concern appeals by the District of Columbia (hereinafter "the District") from jury verdicts and judgments entered against it in district court. Although the District asserts several points of error, we are not persuaded, and therefore, affirm the judgment.
The essential facts of the case are uncontroverted. In February, 1970 the District contracted with C. F. and B., Inc. and State Construction Corporation, a joint venture (hereinafter "the contractor"), for construction of the Southeast Relief Watermain, a 66 inch diameter watermain at N Street, Northwest, between First and Sixth Streets. The contractor chose to install the watermain in two sections: the first, approximately 800 feet, to begin at First Street and proceed in a westerly direction to
At trial, Mr. Charles Green, Director of Industrial Safety for the District's Minimum Wage and Industrial Safety Board, testified as an expert witness for plaintiffs-appellees that when a pipe has been sealed for an extended period and subsequently opened to permit workmen to enter it, the pipe should first be ventilated pursuant to section 11-21134 of the District of Columbia Safety Standards, Rules and Regulations—Construction.
Evidence was also presented at trial which established that the District employed a full-time, on-the-job "inspector" who was charged with the responsibility "for pointing out to the contractor all instances of faulty workmanship, substandard materials, unsafe practices, or questionable interpretation of plans and specifications." J.A. at 222-23 (emphasis added). Moreover, if the contractor did not take corrective action, the inspector was "authorized to stop work on the project, and notify [his] supervisor of [the] situation." Id.
Although there was conflicting testimony concerning the requirement of ventilating the watermain and the possible presence of dangerous gas,
On appeal, the District asserts three grounds of error: first, that the trial court erroneously held that the District's liability extends to employees of its contractor; second, that watermain installation is not inherently dangerous work requiring the taking of special precautions, and thus, the trial court erroneously permitted the jury to consider the District's liability for the contractor's negligence; and third, that the evidence failed to establish a negligently caused fire for which the District is responsible. As to the latter two assertions, we think both issues were properly treated as questions of fact upon which there was sufficient evidence of record to necessitate their submission to the jury for resolution. We turn now to the remaining issue, one of first impression in this jurisdiction, of whether the District, as a matter of law, may be held liable to employees of its contractor.
We are urged by the District to adopt the view that one who engages an independent contractor is not liable to the employees of such contractor, inherently dangerous though the work may be. Appellees, of course, maintain that the law is to the contrary. The District supports its position with citation to a plethora of judicial authority, much of which we have found to be inapposite, which has held, on various theories founded in considerations of workmen's compensation, that the contractee's liability does not extend to employees of the contractor. While we have thoroughly considered the District's arguments, we think that the better reasoned view is that employees of the contractor are within the class of persons to whom the contractee, under certain circumstances, may be liable.
Where one contracts for the performance of inherently dangerous work, courts have recognized an exception to the general rule that the contractee is not liable for negligence of its independent contractor. This exception is premised upon the rationale that, because of the inherently dangerous nature of the work, the contractee is obligated to contemplate and guard against such dangers and thus, should not be allowed to "escape" liability to persons or property negligently damaged in the performance of such work by its contractor. Although unequivocally applicable to third persons who are not employees of a contractor, the exception has become the subject of debate and diverse judicial interpretation when applied to employees of a contractor.
The essence of the controversy stems from a pragmatic concern regarding the contractee's relationship to the contractor's employees via workmen's compensation. The problem was most succinctly addressed in the Restatement (Second) of Torts, Special Note to Chapter 15 (Tent. Draft No. 7, 1962) (hereinafter "the Tenative Draft"):
Id. at 17-18. Several courts have substantially relied upon this language in holding that employees of a contractor are not among those to whom a contractee is liable. See, e. g., Welker v. Kennecott Copper Company, 1 Ariz.App. 395, 403 P.2d 330, 337-338 (1965); Richardson v. United States, 251 F.Supp. 107, 112-113 (W.D.Tenn.1966); Eutsler v. United States, 376 F.2d 634, 636 (10th Cir. 1967). However, we think it significant that the language was not included in the final draft of the Restatement (Second) of Torts and do not feel constrained to follow it, a course which several other courts have also taken. See, e. g., Woolen v. Aerojet General Corporation, 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708 (1962) (en banc); Giarratano v. Weitz Company, 259 Iowa 1292, 147 N.W.2d 824 (1967); Hagberg v. City of Sioux Falls, 281 F.Supp. 460 (D.S.D.1968); see also Associated Engineers, Inc. v. Job, 370 F.2d 633 (8th Cir.), cert. denied, 389 U.S. 823, 88 S.Ct. 59, 19 L.Ed.2d 77 (1967). The proposition advanced in the Tentative Draft that a contractee is not liable to employees of a contractor because the contractee, in effect, ultimately bears the costs of workmen's compensation insurance misses the point. The question is not who may ultimately bear the costs, but rather who does the law require to bear the costs. The quid pro quo of contribution to workmen's compensation, at least in the District of Columbia, is not a correct rationale for non-liability where that quid pro quo is not required by law. Thomas v. George Hyman Construction Co., 173 F.Supp. 381 (D.D.C.1959). Consequently, we do not choose to follow the decisions of those courts that have adopted the reasoning of the Tentative Draft. Instead, we hold that, as a matter of law, the District may be held liable to its contractor's employees who are injured in the performance of inherently dangerous work.
Our conclusion that, under the circumstances of the instant case, workmen's compensation does not bar suit against the District by employees of its contractor is buttressed by reference to the District's own workmen's compensation statute, the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (1970) (hereinafter "the Act"), as made applicable to the District of Columbia by 36 D.C.Code § 501 (1973). In Potomac Electric Power Company v. Wynn, 120 U.S.App.D.C. 13, 343 F.2d 295 (1965), this court had occasion to consider the construction the Act should be given. Initially, the court noted that the Act "must be construed liberally in favor of the injured employee." Id. at 296 citing Voris v. Eikel, 346 U.S. 328, 74 S.Ct. 88, 98 L.Ed. 5 (1953), and Vinson v. Einbinder, 113 U.S.App.D.C. 246, 307 F.2d 387 (1962), cert. denied, 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765 (1963). Furthermore, "[n]arrow statutory construction should not deprive the injured employee of either his compensation or his claim in damages against third parties." Potomac Electric Power Company v. Wynn, supra, 343 F.2d at 296. Referring specifically to third party suits pursuant to the Act's 1959 amendment,
To summarize, where, as here, the District contracts for the performance of inherently dangerous work, the District has a duty to guard against injuries to third persons which may result therefrom; that duty is not delegable and is applicable with equal force to third persons generally and employees of the District's contractor alike.
J.A. at 129.
J.A. at 41-42.