Workplace Safety: Employer’s Liability Limited to Areas Over Which It Exercises Actual Control

Velasquez v. Essex Condominium Assoc., __ A.2d __ (D.C. 2000). Opinion by Ruiz, joined by Farrell and Glickman: Trial court: Retchin.

FACTS: Plaintiff fell seven stories from a scaffold while cutting concrete off a building exterior as part of a renovation project for which his employer had been hired by the building owner. Plaintiff sued building owner and management company on theory that they were his statutory employers under D.C. Industrial Safety Act, D.C. Code § 36-228 (1993), which requires employers tofurnish “reasonably safe” place of employment. Act defines “employer” as any person “having control or custody of any place of employment or of any employee.” D.C. Code § 36-222 (l). Defendants argued that contract with renovation company gave contractor exclusive control over safety items like scaffolding. Trial court granted summary judgment to defendants.

OUTCOME: Summary judgment for defendants AFFIRMED.

HOLDING: Building owner was plaintiff’s employer given its ownership of building and given the right it retained under contract to monitor and inspect contractor’s work. However, a statutory employer like a building owner who has a right to control but doesn’t exercise actual control has a lessened duty of due care. Since owner exercised no actual control over scaffold, plaintiff could not prove that the statutory duty of care was breached.

COMMENT: This case extends Traudt v. PEPCO, 692 A.2d 1326 (D.C. 1997), to make significant inroads on a building owner’s duty to employees of independent contractors at its premises. It is no longer enough for plaintiff to prove that owner is a statutory employer and thus has a statutory duty of care; plaintiff must now show that owner exercised enough actual control over work site that this duty of care was breached.

Lost Wages: Self-Employed Plaintiff with Spotty Earnings History Could Base Claim on Statistical Averages for Persons of His Education

Croley v. Republican National Committee, __ A.2d __ (D.C. 2000). Opinion by Reid, joined by Glickman and Washington. Trial judge: Walton.

FACTS: Plaintiff was assaulted by guards employed by RNC as he was taking photos of an overflowing dumpster outside RNC headquarters, which was also near plaintiff’s home. Plaintiff suffered injuries to chest and head and later was diagnosed with post-traumatic stress disorder. At time of event, in 1984, plaintiff was a self-employed consultant in “business computerization.” He had received an MBA degree from Harvard in 1976. In two years just before injury, his firm had received more than $500,000 in fees from two consulting clients, which he had used to pay expenses and buy a home. But other than that he had little personal earnings because any fees he received from clients were mostly reinvested in his firm. Plaintiff’s economist, Dr. Borzilleri, testified that an average Harvard MBA would earn $2.9 million over a lifetime. Jury awarded $600,000 for lost future earnings and like amount for general damages. Trial judge set aside award for lost future earnings as having insufficient factual basis.

OUTCOME: Verdict for $600,000 in lost earnings REINSTATED.

HOLDING: Plaintiff had sufficient evidence to support verdict for lost wages, inasmuch as: (1) economist’s methodology of using statistical averages was unchallenged by any opposing expert; (2) there was nothing in record that showed that statistical data was “not of a type reasonably relied upon” by experts in that field (Fed. R. Evid. 703); (3) self-employed plaintiff did have evidence of capacity to generate business by obtaining contracts.

COMMENT: Appeals court affirms trial court’s order barring plaintiff from making a claim of brain injury at trial, inasmuch as plaintiff had violated two court orders to submit to IME and did not submit affidavit from his expert clinical social worker until a year after IME was first requested that plaintiff had “extreme anxiety about the examination by Dr. Ammerman.” Applying balancing test of Weiner v. Kneller, 557 A.2d 1306 (D.C. 1989), and Dada v. Children’s Nat’l Med. Center, 715 A.2d 904 (D.C. 1998), court finds decisive the plaintiff’s delay of a year in informing the court that his psychological injuries precluded his immediate compliance with order to submit to IME.

Spoliation of Evidence Can Be Criminal Act

Timberlake v. United States, __ A.2d __ (D.C. 2000). Opinion by Ruiz, joined by Wagner and Belson.

FACTS: Man being arrested during street-corner undercover drug buy tried to swallow some plastic bags containing cocaine and heroin. He was convicted of attempted tampering with physical evidence in violation of D.C. Code § 22-723.

OUTCOME: Conviction AFFIRMED.

HOLDING: Construing statute for the first time, court holds that the statute does not require that the individual be the focus of an official proceeding, only that the individual knows or has reason to believe that an official proceeding is likely to be instituted.

COMMENT: D.C. Code § 22-723(a) provides:

“A person commits the offense of tampering with physical evidence if, knowing or having reason to believe an official proceeding has begun or knowing that an official proceeding is likely to be instituted, that person alters, destroys, mutilates, conceals, or removes a record, document, or other object, with intent to impair its integrity or its availability for use in the official proceeding.” “Official proceeding” is defined in D.C. Code § 22-721(4) as “any trial, hearing, investigation or other proceeding in a court of the District of Columbia or conducted by ... an agency or department of the District of Columbia government.” Under this statute, for example, a doctor altering a medical record knowing that a malpractice suit might be filed and intending “to impair its integrity” would be guilty of this crime.