# Jack Jeffries v. Potomac Development Corporation v. Erwin F. Simon & Associates and Thomas L. Watson, Third-Party

> Court of Appeals for the Third Circuit · June 26, 1987 · 822 F.2d 87

URL: https://www.frixlaw.com/law-library/cases/9476371

## Case

- **Full name:** Jack JEFFRIES v. POTOMAC DEVELOPMENT CORPORATION, Appellant, v. ERWIN F. SIMON & ASSOCIATES and Thomas L. Watson, Third-Party Defendants
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** June 26, 1987
- **Citations:** 822 F.2d 87; 261 U.S. App. D.C. 355; 23 Fed. R. Serv. 147; 1987 U.S. App. LEXIS 8158
- **Precedential status:** Published
- **Opinion:** Concurring in part by Silberman
- **Judges:** Edwards, Silberman, Parker
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476371

## Opinion text

SILBERMAN, Circuit Judge,
concurring and dissenting:
I concur in all parts of the majority opinion except Section II.B. Since Kurtz v. Capital Wall Paper Co., 61 A.2d 470 (D.C.1948), remains the law of the District of Columbia, we are bound in a diversity case to apply it even if we suspect that the District of Columbia Court of Appeals would overrule it if the issue were properly presented today. Accordingly, I respectfully dissent.
I do not see how one can read Bowman v. Redding & Co., Inc., 449 F.2d 956 (D.C. Cir.1971), one of our own opinions, as “casting] doubt on the continuing validity” of Kurtz . Maj. op. at 93. Bowman issued fifteen days after the D.C. Circuit lost its appellate jurisdiction over the District of Columbia court system, 1 (although Judge Leventhal probably wrote the opinion earlier — under the old regime — when he arguably was free to overrule D.C. local court precedent). Now, of course, we must apply D.C. law as if Erie R.R. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), applied. See Lee v. Flintkote Co., 593 F.2d 1275 , 1278 n. 14 (D.C.Cir.1979). In any event, the Bowman court did not even mention Kurtz , much less explicitly or implicitly overrule it. I therefore think Bowman , at best, stands for the limited proposition that a general contractor owes a *97 statutory duty of care not only to his own employees, but also to a subcontractor’s employees working on a common construction site. It is not unusual for construction sites to be treated as sui generis. See, e.g., 29 U.S.C. § 158 (e) (1982).
That the D.C. Court of Appeals in Martin v. George Hyman Constr. Co., 395 A.2d 63 (1978), said in a footnote “[w]e need not address whether and, if so, under what circumstances a person other than a wage earner might be an intended beneficiary of these safety regulations, compare Kurtz v. Capital Wall Paper Co. with Bowman v. Redding & Co., Inc., id.” at 71 n. 9 (citations omitted), cannot possibly be given the meaning the majority takes: that the D.C. Court of Appeals was disapproving Kurtz or was cutting Kurtz adrift to be sunk by the federal courts. On the contrary, it seems quite clear that the Court of Appeals was reserving for itself any reexamination of Kurtz . It is, I believe, bad business for us to encourage litigants, who might well prefer the federal courts because of speed, to think we have so little hesitation in circumventing D.C. precedent.
. The District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473 (1970), made the D.C. Court of Appeals the “highest court of the District of Columbia,” id. at § 102, and eliminated the D.C. Circuit’s appellate jurisdiction effective February 1, 1971. See id. at §§ 102, 301. Bowman was decided on February 16, 1971.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476371. Public record. Not legal advice.