SCHWELB, Associate Judge:
Robert L. Fry II (Fry, Jr.) appeals from an order of the trial court granting Diamond Construction Company's motion for summary judgment in Fry, Jr.'s action for personal injuries. We conclude that there were genuine issues of material fact precluding entry of summary judgment. Accordingly, we reverse the judgment and remand the case for further proceedings.
Fry, Jr. suffered severe and disabling injuries when a ladder and scaffolding on which he was working collapsed, causing him to fall some thirty-two feet to the asphalt pavement below. At the time of the accident, Fry, Jr. was painting the exterior of a building at the Turner Elementary School in southeast Washington, D.C., as part of a project to replace windows at the school. Diamond was the general contractor retained by the District of Columbia for the project. Diamond had engaged Arlyn Construction Company, a sole proprietorship operated by Robert L. Fry, Sr., Fry, Jr.'s father, as the painting subcontractor for the work. Arlyn was to be compensated for its time and materials.
Under its agreement with Diamond, Arlyn was to paint the exterior structural columns which were located near the windows to be replaced. The Frys brought scaffolding to the site. After they had begun to set it up, they determined that the scaffolding was not high enough to enable Fry, Jr. to reach some of the windows.
Fry, Sr. testified at his deposition that on May 29, 1991, he went to see Bengt Barnas, Diamond's safety officer, to explain the situation. He informed Barnas that the top windows were too high to reach with the available scaffolding, and requested that he be authorized to use a "scissors lift." Barnas asked how much such a device would cost, and Fry, Sr. estimated that it would run about $200 to $250. According to Fry, Sr., Barnas rejected this option as too expensive. Fry, Sr. explained that without a scissors lift, he would have to place a ladder on top of the scaffolding, and Barnas directed him to do so. Although Diamond claims that Fry, Sr.'s testimony on this point was equivocal, the record does not bear out this contention:
Barnas denied at his deposition that he had directed Fry to place a ladder on top of the scaffolding or that he had agreed to such a procedure. In fact, Barnas testified that such an arrangement would violate federal safety regulations and would increase "a thousand-fold" the risk that the worker would fall.
The work proceeded on May 30, 1991. The dangerous situation created by the use of the ladder on the scaffold was compounded, according to Fry, Sr., by the fact that the scaffold was not "tied off" (i.e., secured to the building).
On May 4, 1992, Fry, Jr. filed a five-count complaint against Diamond.
Diamond filed a motion for summary judgment. On July 23, 1993, the trial judge orally granted the motion. Before addressing the merits, the judge delivered a candid commentary on what he perceived to be the excessively complicated, confusing and irrational state of the appellate precedents (not identified by him) in this area of the law.
The judge also emphatically rejected Fry, Jr.'s claims that the workplace was unsafe and that Diamond had failed adequately to carry out his alleged obligation to inspect it:
The judge added that if the law were to impose liability in this situation, then general contractors (and homeowners) would be made "absolute insurers of the work of all of their employers and all of their subcontractors." Fry, Jr. filed a motion to alter or amend the judgment. The judge denied the motion. This appeal followed.
This court, sitting en banc, recently reiterated the standard applicable to our review of orders granting summary judgment:
Colbert v. Georgetown University, 641 A.2d 469, 472 (D.C.1994) (en banc).
Diamond accurately states in its brief that "the judge below assessed the testimony of Mr. Barnas and Mr. Fry, Sr., dismissing Mr. Fry, II's claims where the weight of the evidence favored the defendant Diamond Construction." Diamond adds that "[t]his [c]ourt should do likewise." But "the court may not resolve issues of fact or weigh evidence at the summary judgment stage." Nader v. de Toledano, 408 A.2d 31, 50 (D.C. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of [the] judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). We are therefore powerless to follow Diamond's suggestion that we dismiss Fry, Jr.'s claims on the basis of any perception we may have of the "weight of the evidence."
At oral argument, counsel for Diamond contended that Fry's apparently positive
Applying these principles to the record at hand, we must assume for purposes of the present appeal that Barnas refused to permit Fry, Sr. to rent a scissors lift, and ordered him instead to proceed with the scaffolding and ladder. We are obliged to disregard those of the trial judge's "findings" which are contrary to Fry, Sr.'s deposition testimony, e.g., the judge's statement that "Diamond did not create the scaffolding ladder situation."
RESTATEMENT (SECOND) OF TORTS § 410 (1965) provides as follows:
This rule is simply "an application of the broader rule that one who either intentionally or negligently directs another to do or omit to do an act is subject to the same liability for the consequences of the other's act or omission as though it were his own." Id., cmt. (a). Section 410 deals with "liability for negligence in directing work to be done which is dangerous in itself, or dangerous because of the manner in which it is directed to be done." Id., cmt. (a) (emphasis added).
Section 410 has been invoked by the courts in numerous cases as authority for imposing liability upon the employer of an independent contractor where, as alleged here, the employer has directed that the work be done in a dangerous manner. See, e.g., Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1036-37 (3d Cir.1987); Gonzalez v. United States Steel Corp., 248 Pa.Super. 95, 374 A.2d 1334, 1338-39 (1977), aff'd, 484 Pa. 277, 398 A.2d 1378, 1383-84 (1979); Moloso v. State, 644 P.2d 205, 216 (Alaska 1982); see also W. PAGE KEETON, PROSSER AND KEETON ON THE LAW OF TORTS, § 71, at 510 & n. 15 (1984) (citing RESTATEMENT).
The Supreme Court of Alaska has also explicitly rejected the theory here propounded by Diamond:
Moloso, supra, 644 P.2d at 216.
If Fry, Sr.'s deposition testimony is credited, as it must be for purposes of a motion for summary judgment, Fry, Jr. has presented a genuine issue of material fact as to whether Diamond is liable pursuant to § 410 because it directed Arlyn to use the unsafe practice which resulted in Fry, Jr.'s injury. Barnas concededly knew of the peril. Indeed, Barnas testified that placing a ladder on top of the scaffolding "places the individual using it in extreme danger." Accordingly, the order granting summary judgment cannot be sustained.
Fry, Jr.'s case depends largely, if not entirely, on Barnas' alleged instruction to Fry, Jr. to use the scaffolding and ladder. Without evidence of that directive, most of Fry's claims would be significantly weakened. With Fry, Sr.'s testimony on that issue in the record, however, we conclude that it was error to grant summary judgment as to any of the counts in the complaint. Indeed, that testimony so dominates the issues before us that the five counts all but merge into a single claim.
A. Safe Workplace.
As alleged in Count I, Diamond owed Fry, Jr. a duty to provide reasonably safe conditions of employment. See generally Martin v. George Hyman Constr. Co., 395 A.2d 63, 70-71 (D.C.1978); D.C.Code §§ 36-221 et seq. (1988). This duty could not be carried out by directing Fry, Sr. to proceed
B. Failure to Inspect and Supervise.
In Count II of the complaint, Fry, Jr. alleged that Diamond failed adequately to supervise Arlyn's work. The trial judge rejected this claim, commenting that Diamond was not required to "have somebody out there every day making sure that [the Frys] didn't do something foolish in the process of what, painting."
If, as Fry, Sr. testified, Barnas knew that Fry, Sr. proposed to use an unsafe method of performing the work, Diamond's responsibility to conduct regular inspections of the job site, see generally 29 C.F.R. §§ 1926.32(k), 1926.20(b)(1)(2), could not be carried out simply by ordering Fry, Sr., in advance of the first inspection, to go ahead with the ladder and scaffolding arrangement.
C. Negligent Hiring or Retention.
In Count III of his complaint, Fry, Jr. alleged that Diamond failed to ensure that Arlyn was competent to conduct safely the work it was hired to perform. The trial judge did not address this allegation.
There is little, if any, basis in this record for finding that Diamond was negligent in initially retaining Arlyn. It is undisputed that Barnas had worked successfully with Fry, Sr. on previous occasions, albeit on projects which did not require painting at heights of thirty-two feet. As the court explained in Sievers v. McClure, 746 P.2d 885 (Alaska 1987), "it is unreasonable to expect the employer to make specific inquiries into the many details of the projects, and the safety procedures for each, when the employer has been reasonably assured of the contractor's general reputation for, and past history of, safety and competent work." Id. at 891.
But an employer has "the legal duty to use ordinary care so as not to employ or retain an independent contractor-carrier it knew or should have known was ... negligent in performing the contract." Jones v. Southwestern Newspapers Corp., 694 S.W.2d 455, 458 (Tex.App.1985) (emphasis added). Crediting, as we must for present purposes, Fry, Sr.'s deposition testimony that he told Barnas that he was using a procedure known by Barnas to be dangerous, we conclude that Barnas "was in duty bound to investigate whether [Arlyn] in fact was competent and properly equipped to continue in the work and to take steps to avert any existing peril if [Arlyn] were not competent, or improperly equipped to carry on the work." Kuhn v. P.J. Carlin Constr. Co., 154 Misc. 892, 278 N.Y.S. 635, 644 (Supreme Ct.Bronx Co.1935). A genuine issue of material fact was thus presented as to whether Diamond was negligent in continuing to use Arlyn as its subcontractor after the "scaffolding and ladder" arrangement had been brought to Barnas' attention.
D. Inherent Danger and Peculiar Risk of Harm.
In Counts IV and V of his complaint, Fry, Jr. alleged that the work to be done was inherently dangerous and exposed him to a peculiar risk of harm. An employer is liable for injuries caused by the negligence of an independent contractor where the work performed by the contractor is inherently dangerous. Levy v. Currier, 587 A.2d 205, 209 (D.C.1991); Lindler, supra, note 7, 164 U.S.App.D.C. at 38, 502 F.2d at 495 (applying this rule in favor of independent contractor's employee). The trial judge, as we have seen, held that scaffolding and painting are not inherently dangerous activities.
But the application of the "inherent danger" rule is not limited to intrinsically hazardous work. District of Columbia v. Howell, 607 A.2d 501, 505 (D.C.1992). On the contrary, the rule applies, inter alia, where "the employer has special reason to contemplate such a risk [of harm] under the particular circumstances under which the work is to be done." Levy, supra, 587 A.2d at 209 (quoting RESTATEMENT (SECOND) OF TORTS § 427, cmt. b (1965)). In the present case, Barnas testified that he was well aware of the danger posed by the "scaffolding and ladder" procedure. According to Fry, Sr., Barnas not only tolerated the perilous methodology but actually directed Fry, Sr. to follow it.
"Whether a particular kind of work is inherently dangerous is essentially a relative determination based upon the facts of the particular case." Taylor v. Tellez, 610 A.2d 252, 255 (D.C.1992) (citations omitted). "The existence of [a] danger and knowledge of it by the employer are normally questions of fact for the jury." Howell, supra, 607 A.2d at 505. Given Fry, Sr.'s testimony, there were genuine issues of material fact precluding entry of summary judgment on Fry, Jr.'s claim of "inherently dangerous" activity. For similar reasons, we conclude that summary judgment was improperly entered on Fry, Jr.'s related claim under the "peculiar risk" doctrine. See Wilson v. Good Humor Corp., 244 U.S.App.D.C. 298, 309, 757 F.2d 1293, 1304 (1985); RESTATEMENT (SECOND) OF TORTS, § 413 cmt. b (1965).
The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.
In any event, the parties appear to be in disagreement as to whether Diamond or Arlyn would have been responsible for defraying the expense of a scissors lift under their "time and materials" contract. Fry, Jr. argues, for example, that Diamond would have been responsible for providing the lift pursuant to its statutory duty to "furnish and use safety devices and safeguards," D.C.Code § 36-228(a) (1989), and also under the terms of a provision in its own Construction Safety Program. We need not and do not reach these perceived issues, except to note that the record is not in a posture to warrant disposing of them by summary judgment.
An examination of the Wagner decision, a case in which three of the seven justice dissented, reveals that the plaintiff's claim was not based on an employer's negligent directive at all, and that § 410 was not discussed or even mentioned. Lindler is a unanimous decision which has defined the law of this jurisdiction for more than twenty years. See, e.g., Meiggs v. Associated Builders, Inc., 545 A.2d 631, 636 (D.C.1988), cert. denied, 490 U.S. 1116, 109 S.Ct. 3178, 104 L.Ed.2d 1040 (1989), and DiNicola v. George Hyman Constr. Co., 407 A.2d 670, 674 (D.C.1979) (both citing Lindler with approval). But even if we were disposed in an appropriate case to reject Lindler in favor of Wagner—and Diamond has not provided us with any persuasive reason to take such a step—then our hypothesized readiness to do so would have no application to the § 410 issue in this case.