WM Schlosser Co., Inc. v. Maryland Drywall Co., Inc. , 673 A.2d 647 ( 1996 )

Opinion for the court by Associate Judge KING.

Opinion by Associate Judge FARRELL, concurring in part and dissenting in part at p. 654.

KING, Associate Judge:

These consolidated appeals stem from an injury sustained by Andre Robertson at a construction site in Southeast, Washington. In No. 92-CV-538, the District of Columbia (“District”) appeals the trial court’s denial of its motion for judgment as a matter of law after a jury returned a verdict in Robertson’s favor. In No. 92-CV-518, the W.M. Schlos-ser Company (“Schlosser”) appeals the entry of judgment in favor of the Maryland Drywall Company (“Maryland Drywall”), denying Schlosser’s indemnification claim. We conclude the trial court erred in denying the District’s motion for judgment as a matter of law and in granting judgment in favor of Maryland Drywall. Accordingly, we reverse in both appeals.

I.

The basic facts are not in dispute. The District of Columbia owns an apartment building at 7th and H Streets, S.E., known as the Arthur Capper Facility, which houses low-income, public housing residents. The District entered into a contract with Schlos-ser to renovate the building.¹ The contract gave Schlosser, the general contractor, complete control of the construction project and responsibility for obtaining the required licenses and permits; it also required Schlos-ser to comply with all regulations, including proper safety and health safeguards to protect the workers and the public. Schlosser entered into contracts with subcontractors for the remodeling project, including one with the Maryland Drywall Company (“Maryland Drywall”).

On March 13, 1987, Andre Robertson, an employee of Maryland Drywall, was working with the stock crew at the Capper construction site. As he was sweeping the floor, he fell through a door-sized opening three-stories high, and sustained serious injuries that rendered him a quadriplegic.² Robertson filed suit against the District and Schlosser, alleging that both had breached their duty to provide a safe work place.³ Schlosser filed a third-party complaint against Maryland Drywall,⁴ contending that the contract between Schlosser and Maryland Drywall required Maryland Drywall to indemnify Schlosser. In July 1990, the trial court denied Maryland Drywall’s motion to dismiss, ruling that the indemnity provision was clear on its face. Maryland Drywall subsequently filed a summary judgment motion, contending that the contract did not require it to indemnify if Schlosser was also negligent. That motion was also denied.

Prior to trial, Schlosser settled with Robertson for $3,000,000.⁵ Maryland Drywall renewed its contention that it was not liable under the indemnity provision of the contract between Schlosser and Maryland Drywall, and the trial court, reversing itself, ruled that the indemnity provision did not require Maryland Drywall to indemnify Schlosser if Schlosser was negligent.⁶ The trial court also determined that the “same legal principles apply as much ... for concurrent negligence.” Thus, the trial court ruled that because the indemnity clause did not require Maryland Drywall to indemnify Schlosser if Schlosser’s negligence was the proximate cause of the injury, it also did not require indemnity if both parties’ negligence proximately caused the injury.

The trial court concluded, however, that there still remained three facts in dispute that “must be determined by the jury.... One, whether [the negligence of] Schlosser was the proximate cause .of [Robertson’s] injuries; two, whether [the negligence of] Maryland Drywall was the proximate cause ... [and] three, whether [Robertson’s] injuries arose out of, resulted from or in connection with the execution of the work provided for in the subcontract.” The trial court submitted interrogatories to the jury, and the jury found that Maryland Drywall and Schlosser were both negligent and that each company’s negligence proximately caused Robertson’s injury. The jury further found that the injuries arose out of or resulted from or were in connection with the execution of the work provided for in the subcontract between Schlosser and Maryland Drywall. Relying on the earlier determination that the contract did not require Maryland Drywall to indemnify if both parties were negligent, the trial court entered judgment in favor of Maryland Drywall. It is that ruling that Schlos-ser challenges in No. 92-CV-518.

Robertson’s remaining claim, against the District, alleged that the District could not delegate its duty to provide a safe work place because the construction work performed by Robertson was an inherently dangerous activity. The jury found that Robertson’s job was inherently dangerous and awarded him $6,000,000.⁷

The District appeals the trial court’s denial of its motion for judgment as a matter of law, arguing that “the usual hazards of ordinary construction work are not within the ‘inherently dangerous activities’ doctrine” and that it may delegate safety responsibilities to a general contractor.⁸

Schlosser appeals the trial court’s grant of judgment in favor of Maryland Drywall, contending that “terms of an indemnity agreement may be so broad and comprehensive that although it contains no express stipulation indemnifying against a party’s own negligence, it accomplishes the same purpose.” Schlosser maintains that it is entitled to indemnity because the claim “arose out of the work called for in Maryland Drywall’s subcontract and because Maryland Drywall agreed to cover any and all such claims.”

II.

A Appeal No. 92-CV-538, District of Columbia v. Andre Robertson

In reviewing the denial of a motion for judgment as a matter of law, we examine the evidence in the light most favorable to the prevailing party, Finkelstein v. District of Columbia, 593 A.2d 591, 594 (D.C.1991) (en banc), “giving them the advantage of every fair and reasonable inference that the evidence may justify.” District of Columbia v. Royal, 465 A.2d 367, 369 (D.C.1983) (citation omitted). If, applying those standards, we conclude that no reasonable juror could find liability, then we are obliged to reverse. See Etheredge v. District of Columbia) 635 A.2d 908, 918 (D.C.1993) (stating standard and concluding that no reasonable juror could find negligence); Oxendine v. Merrell Daw Pharmaceuticals, Inc. 506 A.2d 1100, 1103-04 (D.C.1986) (citations omitted), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990).

We first address the question of whether the District remains subject to tort liability despite its construction contract with Schlosser. As we noted, the District was found liable under the theory that because the work performed by Robertson was an inherently dangerous activity, the District was vicariously liable.⁹

In this jurisdiction, the general rule “is that when [someone or some entity] 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 for injuries to a third party resulting from the work of the independent contractor.” Levy v. Currier, 587 A.2d 205, 209 (D.C.1991) (footnote omitted) (citing Washington Metro. Area Transit Auth. v. L’Enfant Plaza Prop., Inc., 448 A.2d 864 (D.C.1982) (“general rule is that an individual or corporation is not liable for injuries resulting from the work of an independent contractor”) (citation omitted)). 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. See Restatement (Second) of TORTS § 409 cmt. b (1985).

Under this rule, however, the District, as the contractee in this case, may be liable if the “work performed by the independent contractor is inherently dangerous.”¹⁰ Levy, supra, 587 A.2d at 209 (citations omitted). In those circumstances, the duty to use care becomes nondelegable. See id.; see also District of Columbia v. Howell, 607 A.2d 501, 504 (D.C.1992) (“one who employs an independent contractor to do work involving a special danger to others ... is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger”) (citation and internal alternation omitted); Lindler v. District of Columbia, 164 U.S.App.D.C. 35, 38, 502 F.2d 495, 498 (1974) (exception is based on belief that because of the inherently dangerous nature of the work, the contractee should not be allowed to escape liability and is obligated to guard against dangers). Thus, the question we must resolve is whether the construction work being performed by Robertson was inherently dangerous, making the District vicariously liable for any negligence of its independent contractor, Schlosser.

The resolution of “[w]hether a particular kind of work is inherently dangerous is essentially a relative determination based upon the facts of the particular case.” Washington Metro. Area Transit Auth., supra, 448 A.2d at 868 (citations omitted). In Vale v. Bonnett, 89 U.S.App.D.C. 116, 121, 191 F.2d 334, 339 (1951), the United States Court of Appeals for the District of Columbia held that “[djanger is a relative term. Inherently dangerous may be defined as unusually hazardous.” We recently observed that an inherently dangerous activity “is not limited to intrinsically hazardous work,” but rather “extends to activities which may be dangerous in the circumstances under which they are performed.” Howell, supra, 607 A.2d at 605 (citations omitted).

Applying these principles to the instant case, we conclude that Robertson has failed to demonstrate that stock crew work at a construction site is an inherently dangerous activity or that it involves “risk, recognizable in advance, of physical harm to others which is inherent in the work itself, or normally to be expected in the ordinary course of the usual or prescribed way of doing it.” Levy, supra, 587 A.2d at 211 (citation omitted). The stock crew, including Robertson, consisted of construction laborers who stock and clean the construction site building. They are also responsible for carrying tools and materials to craftsmen at the various areas around the construction site. On the day of his accident, Robertson was sweeping trash into piles and loading it into trash containers. As he did so, he stepped backwards falling through the door opening. Under the authorities discussed below, we conclude that no reasonable juror could find that the work performed by Robertson constitutes inherently dangerous activity as that term is defined under these circumstances. See Vale, supra, 89 U.S.App.D.C. at 121, 191 F.2d at 339 (noting distinction between an unsafe condition and an inherently dangerous condition).

This case is virtually indistinguishable from Jennings v. United States, 530 F.Supp. 40 (D.D.C.1981), where the trial court concluded that working on scaffolding and walkways was not inherently dangerous. There, the plaintiff, employed at a construction site by a contractor, brought an action against the United States, who had hired the contractor, for injuries suffered as the result of a fall from a walkway. The trial court ruled that the plaintiff had failed to sustain his burden of showing “that construction work on scaffolding and walkways is an inherently dangerous activity.” Id. at 45. The court further ruled that “[i]f working on scaffolding and walkways were held to be an inherently dangerous activity, then ah construction projects would be classified as inherently dangerous activities. Such a holding would expand the inherently dangerous activity theory far beyond its proper scope.” Id. (citation omitted); see also Palaidis v. United States, 564 F.Supp. 1397, 1400 (M.D.Fla.1983) (employees of independent contractor who were painting at an air force base were not engaged in an inherently dangerous activity).

We agree with Jennings and conclude, as that court did, that if stock crew work at a construction site is considered to be inherently dangerous activity, “then all construction projects would be classified as inherently dangerous activities.” Jennings, supra, 530 F.Supp. at 45. Imposing liability on the District under these circumstances would indeed “expand the inherently dangerous activity theory far beyond its proper scope.” Id.; see also Gray v. Enserch, Inc., 665 S.W.2d 601, 606 (Tex.Ct.App.1984) (“essential question is whether the risk created is so unusual ... as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care”). Because the District had no other independent duty to Robertson,¹¹ having contractually delegated its duty to the contractor, Schlosser, there is no basis for Robertson’s recovery from the District. See General Elevator Co. v. District of Columbia, 481 A.2d 116, 120 (D.C.1984) (District owed no duty other than the one it delegated to the contractor).

In sum, viewing the evidence in the light most favorable to Robertson, we hold that as a matter of law, Robertson’s activities as a member of the stock crew did not rise to the level of inherently dangerous work. Accordingly, the District is not vicariously liable for Schlosser’s negligence that caused the injuries to Robertson, and the trial court erred in declining to enter judgment as a matter of law.¹²

B. Appeal No. 92-CV-518, Sehlosser v. Maryland Drywall

We turn now to Schlosser’s claim that the trial court erred in granting judgment in favor of Maryland Drywall. Schlos-ser contends that “the terms of an indemnity agreement may be so broad and comprehensive that although it contains no express stipulation indemnifying against a party’s own negligence, it accomplishes the same purpose.” Maryland Drywall maintains that the indemnity agreement does not “specifically indicate by its terms that it would agree to indemnify W.M. Sehlosser Company for its own negligence.”¹³

This court has recognized that “[o]ne of the most common, and simple bases of indemnify is a contract that provides for it.” East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1126 (D.C.1990) (citation and internal quotation marks omitted). The indemnity provision of the contract between Sehlosser and Maryland Drywall provided:

The subcontractor shall promptly indemnify and save and hold harmless the General Contractor and the Owner from any and all claims, liabilities and expenses for property damage or personal injury; including death, arising out of or resulting from or in connection with the execution of the work provided for in this Agreement.

An indemnify provision, however, “should not be construed to permit an indemnitee to recover for his [or her] own negligence unless the court is firmly convinced that such an interpretation reflects the intention of the parties.” United States v. Seckinger, 397 U.S. 203, 211, 90 S.Ct. 880, 885, 25 L.Ed.2d 224 (1970). If a party “expects to shift responsibility for its negligence ... the mutual intention of the parties to this effect should appear with clarify from the face of the contract.” Id.; see also Royal, supra, 465 A2d at 368 (intention to shift responsibility must be “plainly evident from the face of the contract”). The question then is whether this contract provision clearly reflects such a purpose. We are satisfied that the language of the contract is sufficiently clear that Maryland Drywall is responsible not only for its own negligence, but that its liability also “stretche[s] to encompass [Schlosser’s] negligence as well.” Id. (quoting Seckinger, supra, 397 U.S. at 213, 90 S.Ct. at 886).

The contract provided indemnify for “any and all claims ... arising out of ... or in connection with the execution of the work” contemplated by the contract, and the jury determined that the injuries sustained by Robertson arose out of his work for Maryland Drywall. The language of that contract, from the viewpoint of the parties at the time the contract was made, is “so broad and sweeping as to plainly reveal an intent to encompass losses incurred in whole or in part by the negligence of the indemnitee.” Moses-Ecco Co. v. Roscoe-Ajax Corp., 115 U.S.App.D.C. 366, 369, 320 F.2d 685, 688 (1963); see Princemont Constr. Corp. v. Baltimore and Ohio R.R. Co., 131 A.2d 877 (D.C.1957). In Moses-Ecco, the court was called upon to interpret a contract provision similar to the one presented in this case.¹⁴ It noted that “[n]o particular form or words are needed but the intent to waive negligence must be clear.” Moses-Ecco, supra, 115 U.S.App.D.C. at 369, 320 F.2d at 688 (citation omitted) (holding that “[i]t is difficult to conceive of any phraseology broader than Moses-Ecco’s agreement to indemnify”)- In Princemont, this court, in interpreting a contract provision similar to the one in the instant case,¹⁵ held that when the terms of an indemnity agreement are so broad and comprehensive, “the presumption is that if the parties had intended some limitation of the all-embracing language, they would have expressed such limitation.” Princemont, supra, 131 A.2d at 878.

We agree with these authorities, and we are satisfied that the language used in this contract was sufficiently comprehensive as to include indemnification for damages resulting from the negligence of Sehlosser. We see no difference between the formulation in this contract (will “indemnify ... from any and all claims”) and that found in Moses-Ecco (will “indemnify against any loss”) and Prin-cemont (will “assume all liability for any and all loss”). We view the provision in this case as clear and certain in its terms giving rise to no ambiguity. Id. (“The fact that the language used is comprehensive does not render the provision unclear or uncertain.”)

Accordingly, for the reasons stated, we conclude the trial court erred in granting judgment in favor of Maryland Drywall.

No. 92-CV-518 is hereby reversed, and,

No. 92-CV-538 is hereby reversed.

1 . In its brief, the government observed that the project was "substantial and included removing asbestos, replacing interior walls, installing three new stairwells or stairways, enlarging the windows, electrical and plumbing work, and rehabilitating the entire building.”

2 . The door-sized openings were designed to be used with staircases to be constructed later. In the meantime, they were used to hoist materials and tools into the building. When not being used for that purpose, the openings were, according to Schlosser, supposed to be protected by a plywood sheet nailed to the frames. The District presented an expert in construction safety, who testified that Schlosser’s safely plan with respect to the door openings did not meet the standards for securing wall openings.

3 . Robertson originally filed suit against several other companies. Those suits were later dismissed.

4 . The District also filed a third-parly claim against Maryland Drywall, contending that the contract between Schlosser and Maryland Drywall required indemnification of the District.

5 . Maryland Drywall challenged the settlement, but the trial court ruled the settlement was reasonable.

6 .As noted, the trial court initially ruled that the indemnification provision was clear on its face and required Maryland Drywall to indemnify Schlosser. In reversing that decision, the trial court, upon further review, concluded that case law provided that "unless the intention is unequivocally expressed in the plainest of words, the law will consider that the parties did not undertake to indemnify one against the consequences of its own negligence.”

7 . That sum was reduced to $3,000,000 to reflect the amount of the settlement with Schlosser.

8 . The District also challenges the trial court’s denial of its indemnity claims against Schlosser and Maryland Drywall. Because we hold that in these circumstances there is no liability with respect to the District, we have no need to review the trial court's ruling that the District was not entitled to indemnification.

9 . Robertson contends that the District failed to preserve the issue of whether the construction work being performed by him was an inherently dangerous activity. The District responds to that contention by pointing out that it argued, in both its motion for a directed verdict and in its post-trial motion for judgment as a matter of law, that it owed no duty to Robertson. The crux of the District’s argument now is that implicit in its argument in the trial court that it owed no duty to Robertson—because it had delegated that duty to Schlosser—is the theoiy that Robertson's activity was not inherently dangerous. We agree; the District's argument below “can fairly be held to encompass its argument in this court." Sebastian v. District of Columbia, 636 A.2d 958, 959 n. 2 (D.C.1994); see also Mills v. Cooter, 647 A.2d 1118, 1123 n. 12 (D.C.1994) (argument scarcely mentioned at trial, but emphasized on appeal, was sufficiently articulated in motion for judgment n.o.v. and “parties are not limited to the precise arguments they made below”) (quoting Yee v. City of Escondido, Cal., 503 U.S. 519, 534, 112 S.Ct. 1522, 1532, 118 L.Ed.2d 153 (1992)). Therefore, unlike our dissenting colleague, we are satisfied the District preserved this issue.

10 . This is premised on the rationale that because of the inherently dangerous nature of the work, the contractee should not be allowed to escape liability and is obligated to contemplate and guard against such dangers.

11 . Robertson contends that by obtaining building permits, the District has assumed liability. We disagree and observe that the provisions relating to obtaining building permits only require that the construction work be in accordance with the applicable regulations and laws.

12 . The District also contends that the inherently dangerous activity doctrine does not extend to employees of independent contractors and that the “majority view ... is that an employee may not recover from the person who engages the independent contractor even though the work may be dangerous." Because we reverse the judgment against the District on another ground, we will not resolve this issue.

13 . Maryland Drywall argues that the indemnity clause is unenforceable because Sehlosser was concurrently negligent and because it had a non-delegable duty to provide a safe work place. Under the District’s substantive tort law, a plaintiff’s contributory negligence is a complete bar to recovery, as this jurisdiction does not recognize comparative negligence. General Elevator Co., supra, 481 A.2d at 119. A contractual indemnity claim, however, does not sound in tort, and therefore, it does not bar recovery. See id. at 117-18. Furthermore, while a party may not be able to exempt itself from tort liability for its nondelegable duties, there is no bar to contractual indemnification for such potential liability. See Mead v. National R.R. Passenger Corp., 676 F.Supp. 92, 95 (D.Md.1987).

14 .That agreement provided, in part:

"The Subcontractor (Moses-Ecco) agrees in the performance of this contract * * * that he will at all times indemnify and save harmless the Owner and the Contractor (Roscoe-Ajax) against any loss, because of injury or damage to persons or property arising or resulting from the performance of this contract, including any and all loss, cost, damage or expense which the Owner and/or Contractor may sustain or incur on account of any claim, demand or suit made or brought against them or either of them by or on behalf of any employee of (Moses-Ecco).” * * *

See Moses-Ecco, supra, 115 U.S.App.D.C. at 368, 320 F.2d at 687 (asterisks in original).

15 . It provided that the subcontractor agreed:

To assume all liability for any and all loss and damage to property and claims for injury to or death of person in connection with or growing out of the use of said premises.

See Princemont, supra, 131 A.2d at 877-78.