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DUTY IMPOSED BY INDUSTRIAL SAFETY ACT TO PROVIDE SAFE WORKPLACE HELD NOT PREEMPTED BY FEDERAL OSHA LAW Traudt v. Potomac Electric Power Company, 692 A.2d 1326 (D.C. 1997) In Traudt, an employee of an asbestos abatement firm was burned in an explosion that occurred when the employee was using a screwdriver to pry asbestos insulation off an energized high voltage cable owned by PEPCO. Apparently the screwdriver's tip pierced the lead insulation covering the cable. The asbestos abatement firm was an independent contractor, and under its contract was solely responsible for the means, techniques, sequences and procedures of the asbestos removal. Before the contractor's bid was submitted, PEPCO had explained that the work would be performed on insulated cables that would remain "hot" or energized. The employee received workers' compensation from the independent contractor, then brought suit against PEPCO, alleging three theories: (1) PEPCO breached its statutory duty to provide a safe place of employment; (2) PEPCO breached its duty to take special precautions against the peculiar risk of harm that removal of a covering from energized, high voltage power lines was likely to create; and (3) PEPCO had a duty to supervise the independent contractor in the performance of inherently dangerous work. The trial court granted summary judgment, and the employee appealed. The D.C. Court of Appeals reversed. Defendants in D.C. cases arising from accidents in the workplace had enjoyed some success at the trial level by arguing that the federal Occupational Safety and Health Act (OSHA) had preempted the D.C. Industrial Safety Act provision which imposes on employers duties to furnish a reasonably safe workplace and to adopt and use practices which are reasonably safe. D.C. Code § 36-228(a). The preemption argument, by negating the D.C. Industrial Safety Act (D.C. Code § 36-228(a)), had had the effect of restoring the defenses of ordinary contributory negligence and assumption of the risk to defendant employers. In the recent Traudt decision, the D.C. Court of Appeals rejected the preemption argument, thus ending the "end runs" around the long-standing rule of Martin v. George Hyman Constr. Co., 395 A.2d 63, 71, 74 (D.C. 1978). In Martin v. George Hyman Constr. Co., the D.C. Court of Appeals held that ordinary contributory negligence and ordinary assumption of the risk on the part of the worker are no defense to an employer's breach of its duty under D.C. Code § 36-228(a). Rather, only aggravated contributory negligence or a willful, wanton, or reckless assumption of the risk, constitute valid defenses. Thus, a major effect of Traudt is to preserve the validity of the holding of Martin v. George Hyman Constr. Co. Significantly, Traudt also held that PEPCO's ownership of the manhole system and the electric cables at the job site, together with the authority it reserved in the contract to monitor the independent contractor's work and perform other work simultaneously at the job site, sufficiently established its control of the "place of employment" to make it the "employer" for purposes of the statute. The Court also held that PEPCO owed the employee the duty set forth in § 413 of the Restatement (Second) of Torts, to provide in the contract, or in some other manner, that the contractor take the required precautions in light of the peculiar risk created by energized high voltage cables. |
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