TERRY, Associate Judge:
Appellants Levy and Williams, who are husband and wife, own a town house on M Street, Northwest, next door to a town house owned by appellee Currier. They sued Currier for damages resulting from a fire that occurred when workmen, using an acetylene torch, attempted to remove a fire escape that was attached to Currier's house. Currier added the Central American Refugee Center (CARC), the employer of the workmen, as a third-party defendant. After a non-jury trial, the court entered findings of fact and conclusions of law favorable to Currier and CARC and granted their motion to dismiss the complaint, albeit without prejudice.
Appellants' town house was seriously damaged by a fire which began in a bird's nest on a window sill of the town house next door, owned by appellee Currier, and then spread to the roof of appellants' home. At the time of the fire, Currier's house was undergoing renovation under the supervision of his agent, Curtis Johnson.
Some time before the date of the fire, Currier had instructed Johnson to have a fire escape removed from the front of his house. Paul Leach, a contractor who was
Johnson testified at trial that he accepted Dominguez's assurance that CARC would engage someone competent to effect the removal of the fire escape. Johnson said he "possibly might have mentioned" to Dominguez that the fire escape could simply be unbolted from the building, since it appeared to be attached by "long bolts and nuts," but he understood from Dominguez that welding equipment might be used. Johnson conceded that he did not know "whether these welders who were going to be utilized had ever engaged in this type of operation before" or what safety precautions, if any, might be taken as part of the removal operation.
Finally, Johnson stated that he was not aware of any birds' nests on the window sills of Currier's house at the time CARC's workmen arrived to remove the fire escape. He had previously seen to it that such nests were removed as they were found. No particular warnings were given to Dominguez or CARC regarding any adverse conditions on the premises because Johnson assumed that "anyone that was hired by Mr. Dominguez ... who would have any instruments such as a torch would have the common sense to be able to check out and see whether there was any flammable material there that could indeed possibly cause a fire."
On the appointed morning, workmen hired by CARC appeared at Currier's home to remove the fire escape, bringing with them a saw, a ladder, and other equipment.
Thomas Gardner, a fire inspector with the District of Columbia Fire Department's Investigation Unit, examined the site of the fire to determine its cause. He concluded that the fire began when a piece of slag (molten metal) or a spark from the acetylene torch used by the workmen landed in a bird's nest, which was on a window sill near the roof of Currier's house. Once ignited, the fire quickly moved from the bird's nest into Currier's house and then spread to the two adjoining houses. The bird's nest, according to Gardner, was approximately five feet from the point on the fire escape where the torch was being used. Inspector Gardner noted that the workmen did not have a fire extinguisher with them, nor had they obtained a permit for the work they were doing as mandated
Monica Yriart, a staff attorney with CARC, testified that the by-laws of CARC did not grant the executive director, Mr. Dominguez, the right to commit funds for CARC without the approval of the Board, but that he was vested with authority to run the organization.
At the close of the trial, the judge heard argument from counsel on the defendants' motion to dismiss the complaint and then took the case under advisement. A few days later he issued an order which contained the following conclusions of law:
The judge then granted the motion to dismiss. This appeal followed.
Appellants maintain that the trial court erred in dismissing their complaint.
The well-established general rule in this jurisdiction 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),
The reporter's note under section 427 in the Appendix to the Restatement lists a number of situations in which this exception has been applied, one of which is the use of an acetylene torch near inflammable materials in repairing a building. The comments to section 427 make clear, moreover, that its application is not limited to intrinsically hazardous work. Comment b states in part:
The rationale for this exception to the independent contractor rule is that "the employer is in the best position to identify, minimize, and administer the risks involved in the contractor's activities." Wilson v. Good Humor Corp., 244 U.S.App.D.C. 298, 306, 757 F.2d 1293, 1301 (1985) (citations omitted). Crucial to a contractee's liability, therefore, is whether the contractee knows or has reason to know of the special danger inherent in the activity of the independent contractor. RESTATEMENT, supra, § 427; see Wilson v. Good Humor Corp., supra, 244 U.S.App.D.C. at 306, 757 F.2d at 1301. The existence vel non of such knowledge is obviously a question of fact.
There is evidence in this record which would surely support a finding that Currier knew or had reason to know that
Whether the use of an acetylene torch is inherently dangerous is an additional question of fact left unanswered by the trial court. The few appellate courts which have dealt with the issue have generally upheld findings that the use of such a device is an intrinsically dangerous activity. The leading case appears to be Nashua Gummed & Coated Paper Co. v. Noyes Buick Co., 93 N.H. 348, 41 A.2d 920 (1945). In Nashua there was
Id. at 349, 41 A.2d at 921. The court concluded that the evidence "warrant[ed] a finding that the use of the acetylene torch was `dangerous in itself'...." Id. at 350, 41 A.2d at 922 (citation omitted). See also Western Stock Center, Inc. v. Sevit, Inc., 195 Colo. 372, 378-379, 578 P.2d 1045, 1050-1051 (1978). The only decision we have found to the contrary is Brownsville Navigation District v. Valley Ice & Fuel Co., 313 S.W.2d 104 (Tex.Civ.App.1958). The court in that case did not actually decide the issue, focusing instead upon the employer's lack of knowledge that a torch would be used, which would render the "inherently dangerous activity" exception inapplicable. The court went on to state, however, "We doubt that the use of the acetylene torch was an inherently dangerous operation, since it was the negligent manner of its use which resulted in the fire." Id. at 106 (citation omitted).
We choose in this case to follow the lead of the Nashua court. Inspector Gardner testified that the fire ignited when a piece of slag or a spark from the acetylene torch landed in a bird's nest on a window sill near the roof of Currier's house. Marthlu Bledsoe, Currier's neighbor, saw a small shower of sparks escape from the torch. Given the proximity of the torch to the inflammable bird's nest, a reasonable trier of fact could find that the workmen's use of an acetylene torch was "dangerous in itself." Nashua, supra, 93 N.H. at 350, 41 A.2d at 922. The trial court on remand, therefore, must make findings on two factual issues: First, under all the circumstances, was the use of an acetylene torch an inherently dangerous activity? Second, did Currier, through his agent Johnson, know or have reason to know of the danger or risk involved?
If the answer to both of these questions is yes, the trial court must then determine whether CARC was negligent in performing its task — i.e., whether CARC's workmen were negligent either in the way they did the work or in their failure to have a fire extinguisher available or to obtain a permit as required by the Fire Prevention Code. Once an independent contractor is found negligent, the contractee's liability for any resulting harm under the inherently
An additional basis for appellants' claim against Currier is their allegation that Currier was negligent in selecting CARC to remove the fire escape. If he was, he may be found liable for the negligence of CARC's workmen. Because the trial court failed to resolve this issue, we remand for findings on Currier's alleged negligent hiring of CARC as an independent contractor.
For guidance we turn once again to the RESTATEMENT (SECOND) OF TORTS (1965). Section 411 of the Restatement tells us:
The comments to section 411 offer further enlightenment. Comment a provides a definition:
Comment b, describing the reach of section 411, states in part:
Given the dearth of pertinent case law in the District of Columbia,
Appellants' two remaining contentions are without merit.
We agree with the trial court that no agency relationship existed between Currier and CARC. Johnson, Currier's agent, relinquished control over the actual removal of the fire escape to CARC and was, in fact, absent from the premises on the day set for removal. The right to control an employee's conduct in the performance of the task and in its result is determinative in establishing the existence of a master-servant relationship. Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 860 (D.C.1982); Grace v. Magruder, supra, 80 U.S.App.D.C. at 55, 148 F.2d at 681. The evidence in this case showed that Currier, through Johnson, had no such right. It follows that CARC's workmen were not Currier's servants or agents, and that there was no agency relationship between Currier and CARC.
Appellants also argue that the court committed reversible error in failing to find Currier liable under the doctrine of res ipsa loquitur. That doctrine is applicable, however, as the trial court recognized, only "`[w]here there is no direct evidence to show cause of injury, and the circumstantial evidence is the most plausible explanation for the injury....'" PROSSER & KEETON, THE LAW OF TORTS § 40, at 257 (5th ed. 1984) (footnote omitted); see also Bell v. Westinghouse Electric Corp., 483 A.2d 324, 329 (D.C.1984). In this case the cause of the fire was essentially undisputed; the issue being litigated was whether liability for the damage should fall on Currier. We agree with the trial court that res ipsa loquitur had nothing to do with this case.
In summary, we hold that the trial court erred in failing to decide two factual issues: whether the use of an acetylene torch was an inherently dangerous activity, bringing this case within an established exception to the independent contractor rule, and whether Currier was negligent in hiring CARC to remove the fire escape. Those issues must be resolved on remand, for they are at the heart of this litigation. Since the case was tried to the court without a jury, we leave it up to the trial court, in its discretion, to decide whether to take additional evidence or whether it can make the necessary findings from the existing record. The court may also receive such additional arguments or written submissions from the parties as it may deem appropriate. We reject appellants' other assignments of error.
Reversed and remanded.