concurring:
While I concur in the judgment of the court and in Part II of Judge Wald’s thorough opinion, I write separately because I would limit Good Humor’s obligations under the peculiar risk doctrine to a general duty to warn.1 The majority decides that there is a duty to warn but declines to decide whether Good Humor is under any additional duty. This seems to me unsatisfactory. The case is being remanded and yet the trial judge is given no guidance on how to charge the jury about the extent of Good Humor’s obligations.2 To remedy that deficiency, I propose a clear rule derived from the District of Columbia case law on duties to warn. This rule imposes less sweeping obligations on Good Humor than the expansive Restatement rule, Restatement (Second) of Torts § 413 (1965), and is more clearly in accord with local law. Since, it is plain under this formulation that Good Humor is not entitled to a directed verdict at the present time, I concur in the majority’s decision to reverse the judgment of the district court.
In this case, defendant Good Humor demonstrated over a period of 35 years that it knew of, and was very concerned about, peculiar risks to children coincident with the business of curbside ice cream sales.3 Notwithstanding that knowledge, when the defendant reorganized its business and established its vendors as independent contractors, the evidence currently suggests that it failed in any way to warn those contractors of the dangers involved.4 *1311It is certainly arguable that, as a direct consequence of this failure to warn, David Williams parked his ice cream truck on a busy thoroughfare,5 and an accident ensued.
Unlike the majority, I do not think it clear that the District of Columbia Court of Appeals will look to the Restatement (Second) of Torts (1965) [hereinafter cited as Restatement 2] to decide cases like this, much less that the Court of Appeals will adopt the Restatement’s expansive version of the peculiar risk doctrine. That Court has never endorsed or rejected any version of the peculiar risk doctrine, and the majority’s reliance on WMATA v. L’Enfant Plaza Properties, Inc., 448 A.2d 864, 868 (D.C.1982), is therefore misplaced since that case concerned an activity that was “inherently dangerous and unusually hazardous.” Id. The Court of Appeals made no mention of the peculiar risk doctrine in L’Enfant Plaza and was concerned only with the different problem of vicarious liability for ultra-hazardous activities. The majority misapprehends the significance of that case in suggesting that it endorses the Restatement’s teachings on peculiar risk.6
The majority suggests that courts that have accepted vicarious liability for inherently dangerous activities must necessarily accept it for failure to take precautions against peculiar risks. Maj.Op. at 1303-1304. Yet the Restatement itself recognizes that the inherent danger and peculiar risk doctrines are analytically distinct.7 Acceptance of the former demonstrates little, if anything, about probable acceptance of the latter. It would be wrong for us to assume that the District of Columbia endorses the Restatement’s expansive version of the peculiar risk doctrine merely because it subscribes to traditional notions of vicarious liability in ultra-hazardous lines of work.
Since the District of Columbia courts have neither adopted nor rejected any version of the peculiar risk doctrine, I am compelled to consider what those courts would do if they had to decide this case. Many state courts have cited approvingly even the expansive version of the peculiar risk doctrine set forth in sections 413, 416, and 427 of the Restatement 2d of Torts.8 *1312See Restatement 2d (Appendix. §§ 413, 416 and 427 (collecting cases). But there is no need for us to endorse those sections of the Restatement here. Section 413 goes far beyond the mere creation of a duty to warn and obligates employers to enter into contracts with their franchisees in order to regulate their conduct with respect to safety. Employers are thus required to devise safety programs for their independent contractors and may well be liable if those programs fail to protect or if the employers do not supervise the contractors’ compliance with the programs in a manner that courts or juries later consider adequate. Section 413 thus expands vicarious liability far beyond the bounds traditionally recognized in the District of Columbia. In practice, the Restatement formulation may severely undermine the advantages of doing business through independent contractors, advantages which accrue to the public as well as the employer and which the basic rule against vicarious liability is intended to preserve. Imposition of a duty to warn has no such untoward effects.
Nonetheless, the majority apparently believes that we should adopt the Restatement rule in this case because in the past the District of Columbia courts have sometimes looked to the Restatement for guidance in resolving difficult issues of law. Maj. op. at 1308. But there is no presumption that if a local court sometimes relies on the Restatement, that court will rely on it for all future propositions as well. It will often be tempting for federal courts in diversity cases simply to follow the Restatement rules where local law is silent. The Restatement, after all, seems authoritative and claims the support of numerous cases.9 This is a temptation which we must resist, however, since a practice of always following the Restatement would be very much like adopting the American Law Institute’s conclusions as federal common law. Under Erie we must not assist in the creation of a “federal general common law.” 10 Erie R.R. v. Tompkins, 304 *1313U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938) (Brandéis, J.).
Instead, we should be guided where possible by analogous rules that have been adopted by the District of Columbia courts. Those courts have in the past imposed duties to warn in several cases where one individual has special knowledge of a peculiar danger to others. While these cases were not decided under the peculiar risk doctrine, they involved fact situations that are in many ways analogous to the fact situation before us. In one such case, for example, the Court of Appeals held that a seller or manufacturer of a dangerous product has a duty to warn users of foreseeable risks from misuse of the products and to provide specific directions for safe use. Burch v. Amsterdam Corp., 366 A.2d 1079, 1084-86 (D.C.1976); Edwards v. Mazor Masterpieces, Inc., 295 F.2d 547 (D.C.Cir.1961). In another case, the Court of Appeals imposed a warning requirement where an unusual danger was peculiarly foreseeable to a store owner, while unknown to a patron. Viands v. Safeway Stores, Inc., 107 A.2d 118 (D.C.1954); Ellis v. Safeway Stores, Inc., 410 A.2d 1381, 1383 (D.C.1979). In yet a third case, it was said that under certain circumstances a landlord would be liable even for the criminal misconduct of third parties if he “was aware of a dangerous situation and took no action either to remedy the situation or to warn the tenants of the danger.” Ramsay v. Morrissette, 252 A.2d 509, 512 (D.C.1969).
In each of these cases, the District of Columbia courts imposed liability on a party who failed to warn notwithstanding his special knowledge of a peculiar risk. While none of the cases involved independent contractors, two of them did involve a more distant plaintiff-defendant relationship than exists in the present case. Burch v. Amsterdam Corp., 366 A.2d 1079; Viands v. Safeway Stores, Inc., 107 A.2d 118. Moreover, liability appears to have depended in these cases as much on the foreseeability of the harm as on the duty owed to the plaintiff or to a third party.11 A jury could reasonably find that harm was foreseeable as a result of Good Humor’s failure to warn. Accordingly, because of the local case law on duties to warn,12 I think that the District of Colum*1314bia courts would hold that Good Humor had a duty to warn Williams of the peculiar risks of curbside vending to children.
I reach this conclusion notwithstanding the various policy arguments advanced by the authors of the Restatement for their more expansive version of the peculiar risk doctrine. See Maj. op. at 1305-07. These arguments implicitly assume that courts should decide tort cases according to liability rules that will promote an economically efficient result.13 I am sure that analysis justifies placing an obligation upon Good Humor to warn its independent contractors of dangers. The company has accumulated information over many years and can pass on that information at very little cost, certainly at a far lower cost than all of the vendors would incur if they had to reaccumulate the knowledge by themselves. But it is far from clear that accidents can be avoided most efficiently by placing upon Good Humor the additional obligation of devising and supervising a system of contracts that would control the safety-related conduct of the independent contractors. Such a system may be extremely expensive, both in administration and later litigation over the adequacy of that administration, and may result in a less effective method of avoiding accidents. We have not performed the investigation and analysis that would justify a conclusion on that score. In the absence of knowledge, we ought not impose major reallocations of costs that businesses, and hence society, must bear but should respect the basic policy of the rule against vicarious liability, which is to let individuals and businesses arrange their affairs as they see fit.14
The task upon which the Restatement would have courts embark is essentially legislative in character, in the sense that major redistributions of costs involve the making of significant policy choices. The making of such choices contrasts with Justice Holmes’ description of the proper role of common-law judges who “do and must legislate but ... can do so only interstitially; they are confined from molar to molecular motions.” Southern Pacific Co. v. Jensen, 244 U.S. 205, 221, 37 S.Ct. 524, 531, 61 L.Ed. 1086 (1917) (Holmes, J., dissenting). While common law creation of new tort rules may have been justified in past centuries when societies were less democratic, it is surely more problematical in an era when legislative assemblies have become the principal lawmakers.15 It may be that cost-inefficient allocations of responsibilities would be “fairer” or that more accidents could and should be avoided than *1315efficiency considerations alone suggest. If we had to grapple with such imponderables in order to rewrite existing tort law, we would have to decide whether these are considerations too legislative in nature for a court legitimately to admit into its calculus. The District has a legislature and can of course alter its tort rules any time it chooses. But, as I have said, this case can be decided on a far narrower ground: the simple recognition of a duty to warn held by a franchisor with extensive knowledge of a peculiar danger not so well understood by its franchisees.16
Subject to these clarifications and understandings, I concur in the majority opinion and in the judgment of the court.17
. The peculiar risk doctrine is one of several recognized exceptions to the general rule that employers cannot be held vicariously liable for the torts of their independent contractors. That general rule is important because it embodies the fundamental notion that individuals are responsible for their own actions and should generally not be made liable for torts committed by other people. The rule is integrally related to the concepts of fault and of individual responsibility that are also fundamental to the law of torts.
. This lack of specificity presents the substantial risk that we may find the trial judge’s charge inadequate even after this case has been tried, which would lead to a second reversal and yet another trial.
. Good Humor’s awareness of this particular risk is established by its longstanding maintenance of the following safety precautions: on-site safety training, weekly safety bulletins, periodic slide shows, the circulation of a general safety manual, and its prior practice of warning vendors not to sell ice cream in locations where children would have to cross busy streets. I do not mean to suggest that all of the information imparted by this program had to be given the independent contractors. They surely would be aware of some risks such as those attendant upon driving with defective brakes. But the risks of attracting children to a truck are less immediately obvious and not part of every driver's understanding. It is thus appropriate that Good Humor warn of that particular risk.
. It is conceivable that Good Humor will be able to prove on remand that Williams, its independent contractor, was adequately warned of the peculiar risk at issue in this case. For example, record evidence suggests that Good Humor informed Williams that he had to obtain a special vending license from the District of Columbia government in order to conduct his curbside ice cream sales. See Deposition of Wilbur L. Gammon at 51-52. See also id. at 10, 27, 34. The *1311process of obtaining that license may well have put Williams on notice of the need to take special care with children. It appears that the District imposes local time, place, and manner restrictions on curbside ice cream sales, quite possibly for safety reasons. Id.
I will not speculate here as to what level of governmental warning would suffice to put Williams on notice and would relieve Good Humor of its obligations to warn. That question will have to be answered as new evidence is produced either on remand or in the trial of some future case. The possibility that Williams was adequately warned, by Good Humor or others, makes it all the more important that we now establish whether Good Humor had a duty to do more than warn. Otherwise, it becomes significantly more likely that the scenario described in footnote 2 will actually come to pass.
. Had Williams been warned, as Good Humor’s pre-1980 employee-drivers were warned, he would have known not to park in such a heavily travelled location. The responsibility for having done so would then be entirely his.
. The majority also relies incorrectly on two previous decisions of this court which recognize an inherent danger exception under District of Columbia law to the general rule of non-liability. See, e.g., Lindler v. District of Columbia, 502 F.2d 495, 498 (D.C.Cir.1974); Vale v. Bonnett, 191 F.2d 334, 335 (D.C.Cir.1951). Neither case mentions the peculiar risk doctrine or the Restatement formulation of this particular theory of vicarious liability.
. The majority argues that the inherent danger and peculiar risk exceptions are closely related because both emphasize the particular circumstances surrounding a specific job and independent contractor relationship. However, many legal doctrines emphasize the importance of specific circumstances, and it does not follow from this that they all embrace the same fundamental principles. The inherent danger exception as discussed in L’Enfant Plaza clearly applies in cases where the nature of the work is dangerous no matter how performed. The peculiar risk doctrine, on the other hand, applies to work that is safe if a risk peculiar to that work is known and avoided. While the two doctrines may be related, they are not identical and ought not be confused.
. The relevant sections of the Restatement 2d provide as follows:
§ 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor
*1312One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.
§ 416. Work Dangerous in Absence of Special Precautions
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
§ 427. Negligence as to Danger Inherent in the Work
One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.
. These cases, in fact, are not always as supportive as they are made to appear. For example most of the cases which are collected in the Appendix to Restatement § 413 do not endorse the view that employers should be obligated to enter into contracts with their franchisees concerning safety. A number of cases concern only inherently dangerous activities, Sword v. Gulf Oil Corp., 251 F.2d 829 (5th Cir.1958), cert. denied, 358 U.S. 824, 79 S.Ct. 41, 3 L.Ed.2d 65 (1958); Matanuska Electric Ass’n v. Johnson, 386 P.2d 698, 700 (Alaska 1963); Stubblefield v. Federal Reserve Bank of St. Louis, 356 Mo. 1018, 204 S.W.2d 718 (1947); Majestic Realty Associates, Inc. v. Toti Contracting Co., 54 N.J.Super. 419, 149 A.2d 288 (1959), aff'd, 30 N.J. 425, 153 A.2d 321 (1959); while other cases involve only negligent selection of an independent contractor, Carr v. Merrimack Farmers Exchange, Inc., 101 N.H. 445, 146 A.2d 276 (1958), or liability because of a failure to warn. Contino v. Baltimore & Annapolis R.R., 178 F.2d 521, 525 (4th Cir.1949).
. It is well to remember Justice Field’s classic comments on the federal common law which were quoted approvingly by Justice Brandéis in Erie:
I am aware that what has been termed the general law of the country — which is often little less than what the judge advancing the doctrine thinks at the time should be the *1313general law on a particular subject — has been often advanced in judicial opinions of this court to control a conflicting law of a State. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, ... the autonomy and independence of the States.
Erie R.R. v. Tompkins, 304 U.S. at 78, 58 S.Ct. at 822 quoting Baltimore & O.R.R. v. Baugh, 149 U.S. 368, 401, 13 S.Ct. 914, 927, 37 L.Ed. 772 (1893) (Field, J., dissenting).
. Thus, we recently noted that
it makes no difference whether we discuss ... liability in terms of duty of care or proximate causation, "since the fundamental analysis appears to remain constant ... whether we speak of an attenuated chain of cause and effect ... or the actor’s obligation toward the party he may injure.” Munson v. Otis, 396 A.2d 994, 996 (D.C.1979) (per curiam). This is merely an acknowledgment that the division of tort analysis into the constituent elements of duty, breach, and causation — or into "negligence” and "causation” — is largely artificial. See Graham v. M & J Corp., 424 A.2d [103] at 107 [ (D.C.1980) ] ("the issue of causation is subsumed in the issue of duty’’); W. Prosser, supra, § 42 at 245 (when dealing with questions of duty of care and proximate causation, "circumlocution is unavoidable, since all of these questions are, in reality, one and the same”).
Romero v. National Rifle Ass’n of America, 749 F.2d 77, 80 n. 4 (D.C.Cir.1984).
. The majority challenges my reliance on this case law by arguing that the cases I have cited "do not establish that a tortfeasor’s obligations are limited to a duty to warn.” Maj. op. at 1308 n. 15. Accordingly, the majority correctly notes that in at least one case the District of Columbia courts have held that the duty to warn requires the giving of instructions for safe use, Burch, 366 A.2d at 1084-86 & n. 16, while in another case the duty to warn may require the taking of additional precautions such as alerting the po*1314lice to the existence of a dangerous situation. Ramsay, 252 A.2d at 512-13.
Contrary to the majority’s allegations, I have not attempted here to spell out the precise contours of what would constitute an “adequate” warning of a peculiar risk under District of Columbia law. That would involve a highly fact-specific inquiry into foreseeability which could only be undertaken on a case-by-case basis as future disputes arose. I do note, however, that none of the local cases even remotely support the Restatement’s position that a business should be obligated to devise and supervise a system of contracts that would control the safety-related conduct of the independent contractors. The District of Columbia law on analogous situations focuses instead on the provision of an adequate warning given the totality of the circumstances in each case.
. I am pleased that the majority's economic analysis is confined to the facts of this case, and I join the majority in its explicit rejection of the notion that courts can freely redesign liability rules to penalize an innocent party who also happens to be the cheapest cost avoider. Maj. op. at 1306 n. 13.
. I therefore do not agree that vicarious liability would always be appropriate where efficiency concerns suggest that an employer should have warned an employee of a peculiar risk. Federal courts exercising diversity jurisdiction do not have the authority to rewrite the District’s or a State’s law of torts in order to achieve "efficient” or "fair” results. I have discussed the economic efficiency argument only because the District as yet has no law on this subject and because it is the implicit justification for the Restatement’s expansive doctrine of peculiar risk.
. For an interesting discussion of the recent judicial expansion of tort liability see Remarks of Michael J. Horowitz, Counsel to the Director of the Office of Management and Budget, Fourth International Conference on Product Liability and Consumer Protection and Management Forum, Munich, West Germany, November 19, 1984.
. In so holding I wish to clarify two additional points. First, while Good Humor’s failure to warn may render it liable to the Wilsons, it does not necessarily relieve Williams of any liability he may have to Good Humor on that company's cross-claim. The majority does not address the cross-claim, and I therefore assume that it remains alive. We simply have not addressed the issue and express no opinion on its proper resolution.
Second, I concur in the majority’s opinion insofar as it discusses the Employee/Independent Contractor Distinction and the doctrine of Negligent Selection. I reserve judgment, however, on the question of whether the District of Columbia courts would adopt the doctrine of Apparent Agency. It is not necessary to resolve this question, since the plaintiffs could not go to the jury on this theory, see maj. op. at 1302-1303, even if it applied under District of Columbia law.
. The majority accuses me of seeking to bind local courts to a peculiar risk standard far narrower than the Restatement’s. Maj. op. at 1309. Obviously, I make no such attempt because this court lacks authority to adopt binding constructions of local law in diversity cases. My criticism of the broader Restatement rule is made only because the majority insists on endorsing the Restatement even though it does not approve of what the' Restatement says. Under these circumstances, clarity requires that I explain why I prefer the narrower rule and why I believe the local courts would adopt it. If those courts choose to disagree with me, they can of course adopt the broader Restatement rule or indeed any other rule.