Clarke v. O'CONNOR

• Decision Date: 15 October 1970
• Docket Number: No. 22686.,22686.
• Citation: 435 F.2d 104
• Parties: John Joseph CLARKE, Jr., a minor, by Muriel Clarke, his mother and next friend, and Muriel Clarke, Appellants, v. Dagmar O'CONNOR.
• Court: U.S. Court of Appeals — District of Columbia Circuit

435 F.2d 104 (1970)

John Joseph CLARKE, Jr., a minor, by Muriel Clarke, his mother and next friend, and Muriel Clarke, Appellants, v. Dagmar O'CONNOR.

No. 22686.

United States Court of Appeals, District of Columbia Circuit.

Argued April 15, 1970.

Decided October 15, 1970.

COPYRIGHT MATERIAL OMITTED

Mr. Armin U. Kuder, Washington, D. C., with whom Mr. John O. Fox, Washington, D. C., was on the brief, for appellants.

Mr. Jerome S. Berg, Washington, D. C., with whom Mr. Lawrence E. Carr, Jr., Washington, D. C., was on the brief, for appellee.

Before LEVENTHAL, ROBB, and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

Appellant-plaintiff, a seven year old boy,¹ was injured when his face came in contact with the blades of a fan installed in a window of a house owned by defendant. At the time of his injury he was on the premises as the guest of Miss Gail Davis, one of several tenants of the house under a lease from appellee-defendant. Appellant brought this action for personal injuries, alleging negligence on the part of appellee. At the close of appellant's case the trial court granted a directed verdict for the appellee landlord on the theory that in the circumstances presented no duty was owed by the defendant to the plaintiff, the breach of which would amount to negligent conduct.

In reviewing the correctness of this determination, we are mindful that the concept of "duty" known to the law of torts is a rather artificial one, and that in deciding whether a duty existed, the real question to be answered is whether the law should safeguard the plaintiff from the consequences of the defendant's conduct. As Dean Prosser has put it,

It should be recognized that "duty" is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. * * *

and that as our ideas of human relations change, the law as to duties changes with them. * * * Changing social conditions lead constantly to the recognition of new duties.²

After careful review of the record in the instant case we have concluded that the trial court erred in deciding that defendant owed no duty to the plaintiff, thereby withdrawing the case from the jury. In order to explicate the basis for this conclusion it is necessary to recite the facts in some detail.

I. Pertinent Facts

Appellee O'Connor is the owner of a three-bedroom row house located at 2703 Woodley Place, N.W. In the summer of 1965 these premises were occupied by a group of English girls under a lease from appellee. During that summer these girls requested Mrs. O'Connor to provide some means of cooling the house. Mrs. O'Connor responded by purchasing two air conditioners and two window fans. Her testimony indicates that she had definite ideas as to where and how these apparati were to be used: she expected the air conditioners to be installed in the bedrooms; one fan was intended to cool the kitchen; the other, the living room-dining room area. The air conditioners were installed by representatives of the store from which Mrs. O'Connor had purchased them. The record is unclear as to who actually installed the fans. Mrs. O'Connor testified³ that she thought the fan for the living room, the one involved in the instant suit, was installed by the girls' boyfriends. In any event, the fan was installed in the window of the wall separating the attached front porch from the living room inside. Mrs. O'Connor saw the fan after it was installed. The fan was subsequently removed, presumably for the winter months, and reinstalled the following summer of 1966.

At the time of the accident, the fan was installed in the center window frame in the wall between the porch and the living room. The fan had expandable sides which fitted against the frame of the window, the bottom of the fan rested on the casement, and the window sash pulled down on top of the fan to hold it in place. Although the fan was designed for use in a window, it did not have any built-in grill or other protection to cover the blades on the exterior side. The fan was installed in such a manner that the exterior side faced on the front porch approximately four feet off the porch floor. Appellee testified that she expected an aluminum window screen to fit into the window on the outside of the fan. This window screen was a light weight half-screen which fitted on tracks on the side and was easily removable.⁴ On the day of the accident the screen was not in place. Defendant testified that her maintenance man, Mr. Wollridge, may have been the person who reinstalled the fan in the window in the summer of 1966, the year after it was first purchased, and the summer in which the accident occurred.

By August 1966 the English girls were long departed and Mrs. O'Connor had leased the premises to a group of five American girls for a one year term beginning September, 1965. These tenants were described as "all working girls. * * * around the ages of 24 and 25." Although each of the girls originally signed the lease, Mrs. O'Connor testified that the tenancy arrangements were quite flexible, and that "when a girl married or transferred, she would find a replacement. The replacement had also to sign the lease for the rest of the tenancy. * * * Sometimes a girl would leave and pay her rent for the current month and then they would give the girls in the house an opportunity to use some selection in a choice of a tenant."

Appellee O'Connor also testified that she considered herself responsible for all of the regular maintenance at the Woodley Place premises and that she had a regular electrician, a regular plumber, and a regular maintenance man whom she engaged to effect such maintenance. The tenants were instructed to call these repairmen directly if any maintenance problems arose, and appellee then paid the bills for whatever services were rendered.

On 10 August 1966 the seven year old plaintiff, John J. Clarke, Jr., and two other neighborhood children had entered the premises at the invitation of Gail Davis, one of the group of girls occupying the house, for some cookies to complement the ice cream the children had just purchased. While on the front porch of the house, John peered or called through the fan to one of his young friends inside in the living room, and in the process his face came in contact with the whirling blades, causing severe and permanent injuries. John's mother testified that immediately after the accident Gail Davis rushed into the Clarke home a few doors away and tearfully stated, "Oh, I am sorry. What happened, sic I told my landlord, my cat almost got his tail caught in the fan."

II. The Landlord's Duty — Existence and Three Sources

At trial appellant relied on both the common law and the District of Columbia Housing Code⁵ as establishing the landlord's duty to use reasonable care to maintain the premises in a safe condition. The trial court, however, held that the D.C. Housing Code could not be relied upon as establishing a duty in these particular circumstances and that the ambit of appellee's common law duty was limited to the question of whether the appellee retained sufficient control over the premises to obligate her to take steps to ensure that the window screen was in place in front of the fan at all times. Finding that, inasmuch as the tenants were in possession and control of the entire house, including the window screen and fan, it would be an unreasonable burden to require the landlord constantly to check to see that the screen had not been removed, the District Court ruled that as a matter of law no duty rested upon appellee with respect to the fan.

We think that under the circumstances here such a narrow view of the scope of a landlord's duty is unwarranted. Rather, we find that on the facts of this case, there are at least three bases for establishing that the landlord had a duty to use reasonable care with respect to providing, installing, and maintaining the fan. We do not here find that the landlord breached such a duty; that question is for the jury. We merely hold that the jury should have been permitted to decide the issue of the landlord's asserted negligence.

A. Duty to Provide Originally Safe Equipment

In the first place, it is apparent that aside from the somewhat unusual nature of the tenancy here involved, the appellee, when she supplied the fan, had a duty to provide a piece of equipment that was reasonably safe for its intended use.⁶ Having purchased a fan that had no protective device covering the blades on the side intended to face the exterior of the window, the appellee proceeded to direct its installation in a window located between two habitable areas of the same building. Furthermore, on the record here, the jury could have concluded that in the year in question, 1966, appellee's agent actually installed the fan in its location at the time of the accident.⁷ The question thus becomes whether the precautions taken, namely, the installation of a lightweight, easily removable window screen in front of the exposed fan blades amounted to reasonable care under the circumstances. This question should have been submitted to the jury.

B. Duty of Maintenance in a Safe Condition Under the Housing Code

Appellee argues that under the law of this jurisdiction, "absent a duty created by contract or statute, a landlord is not responsible for injuries resulting from a defect which develops during the term of a lease. * * *"⁸ Such was the rule laid down by this court in Bowles v. Mahoney.⁹ As we have recently noted, however, Bowles has been "effectively overruled, on the basis of the enactment of the housing code,"¹⁰ by Whetzel v. Jess Fisher Management Co.,¹¹ and Kanelos v. Kettler.¹²

This brings us to the applicability of the Housing Code as establishing a duty on the landlord in the circumstances here. The trial judge held that the Code imposed no duty on appellee with respect to...