Bailey v. Zlotnick, 8733.

• Citation: 149 F.2d 505
• Decision Date: 14 May 1945
• Docket Number: No. 8733.,8733.
• Parties: BAILEY v. ZLOTNICK.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

149 F.2d 505 (1945)

BAILEY v. ZLOTNICK.

No. 8733.

United States Court of Appeals District of Columbia.

Argued March 19, 1945.

Decided May 14, 1945.

Mr. Charles H. Houston, of Washington, D. C. with whom Mr. Joseph C. Waddy, of Washington, D. C., was on the brief, for appellant.

Mr. Cornelius H. Doherty, of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and MILLER and ARNOLD, Associate Justices.

ARNOLD, Associate Justice.

This case involves the extent to which a landlord is liable to a tenant for the negligence of an independent contractor who repairs the premises at the direction of the landlord. In a former appeal of this case involving a different issue we said:¹ "Possibly also he the landlord would be liable even though Hamburger the contractor was an independent contractor. There are authorities which hold that a landlord has a nondelegable duty to the tenant, in making repairs or new construction, to make them or see that they are made in such a manner as not to cause injury to the tenant. The risk, in this view, is on the owner rather than the tenant, whether the work is done by one technically his agent or an independent contractor. But, since it has not been determined upon sufficient evidence which is before us that Hamburger was not Zlotnick's agent, we prefer, in the absence of specific controlling authority in this jurisdiction, not to determine the latter's liability for the former's acts as independent contractor until the issue is presented squarely to us."

The issue is now before us on the facts determined by the Municipal Court. It appears that the tenant had agreed to pay an increased rent if the landlord would install a hot water heating system. In the performance of that unilateral contract the landlord employed a competent independent contractor. After the pipes were installed the contractor filled them with water. The pipes leaked because of negligent installation. The contractor repaired the leaks before completing the job. Nevertheless, before they were repaired, the leaks had saturated the ceiling with water. As a result the plaster fell and injured the tenant.

The Municipal Court of Appeals held that a landlord is liable for the negligence of an independent contractor only in two cases: (1) where the landlord undertakes to make repairs or install some improvement and the work is negligently done and as a result a defect or danger inheres in the finished work or product; (2) where the landlord undertakes to make repairs and the work involved is inherently dangerous. Since the present case fell within neither of the above classes the Municipal Court of Appeals concluded that the landlord was not liable.

While the conclusion of the Municipal Court of Appeals is not without supporting authority, the cases as a whole are in confusion² and there is no controlling decision in the District of Columbia. In this situation it becomes necessary for us to examine the principles on which the landlord's liability should rest.

The Restatement of the Law of Torts, which is entitled to particular respect when authorities are in conflict, sets out the principle which we think should be applied to this case.³ It makes the liability of an employer for harm caused by the negligence of an independent contractor depend on whether the employer had a duty to the person injured which the independent contractor failed to perform on his behalf. If such a breach of duty actually resulted from the work of the independent contractor the landlord may not escape liability since liability for non-performance of a duty may not be shifted to another. According to this principle it is immaterial whether the breach of the employer's duty occurred during the progress of the work or from a defective condition of the work after it was finished.⁴

We regard this principle as sound. We must, therefore, examine the extent of the landlord's duty to the tenant in the case before us. Here it was the tenant's duty to repair and there would have been no violation of the landlord's duty had the plaster fallen through mere neglect. The landlord was, nevertheless, under a duty not to create an unsafe condition on the premises either permanent or temporary by any affirmative action on his part.⁵ It is admitted that when the contractor saturated the plaster with water he made the...