Cook v. Seidenverg

• Decision Date: 01 May 1950
• Docket Number: 31252.
• Citation: 217 P.2d 799,36 Wn.2d 256
• Parties: COOK, v. SEIDENVERG et al.
• Court: Washington Supreme Court

217 P.2d 799

36 Wn.2d 256

COOK, v. SEIDENVERG et al.

No. 31252.

Supreme Court of Washington.

May 1, 1950

Department 2.

Leon L. Wolfstone, Seattle, for appellant.

W. E Dupuis and L. W. Bever, Seattle, for respondents.

HAMLEY, Justice.

This action was brought on behalf of the minor child of a tenant in an apartment building, to recover damages in the sum of $39,500 from the owners of the building for injuries sustained by the child. The trial court sustained demurrers to the complaint and amended complaint. Plaintiff declined to plead further and elected to stand on the amended complaint. The trial court accordingly entered judgment dismissing the amended complaint with prejudice. Plaintiff has appealed.

The only question Before us is whether the amended complaint states a cause of action.

The facts alleged in the amended complaint and admitted for the purposes of the demurrer may be briefly summarized. The accident out of which this action arose occurred on December 6, 1948. For some time prior to that date the six-year-old child who was injured was living with her mother, Mrs. Cook, who was a tenant in an apartment building in Seattle owned and operated by respondents. At this time there was in full force and effect a Seattle city ordinance (as amended) defining healthful temperatures and requiring the maintenance of certain minimum temperatures in apartment buildings.

The apartment building in question was equipped with a central heating plant which was under the sole control of respondents. This plant was capable of providing all heat necessary to comply fully with the city ordinances. However, respondents willfully refused and neglected to provide the degree of heat required by the ordinance. From time to time prior to December 6, 1948, Mrs. Cook notified respondents of this deficiency and demanded that sufficient heat be provided; but to no avail. It was therefore necessary for her and other tenants of the building to provide themselves with movable electric plug-in heaters. Respondents were fully familiar with the type and location of the electric heater being used in Mrs. Cook's apartment. On the morning of December 6 1948, as this electric heater was being used to supply heat which respondents were by ordinance obliged to furnish, the child's nightgown became ignited, resulting in serious and permanent injuries.

The allegation of negligence, as set forth in the amended complaint, is based upon two grounds: (1) the violation of a city ordinance requiring landlords to provide a certain minimum degree of heat; and (2) the breach of a duty, arising by virtue of the landlord-tenant relationship and independently of ordinance requirements, to provide such heat.

The violation of a city ordinance is negligence per se. Geer v Gellerman, 165 Wash. 10, 4 P.2d 641; Schatter v Bergen, 185 Wash. 375, 55 P.2d 344; Gardner v. Seymour, 27 Wash.2d 802, 180 P.2d 564. But it is fundamental that such negligence is not actionable unless the statute or ordinance violated was designed to prevent the kind of accident and injury involved in the particular case. Champlin Refining Co. v. Cooper, 184 Okl. 153, 86 P.2d 61; Phoenix Amusement Co. v. White, 306 Ky. 361, 208 S.W.2d 64; East Texas Motor Freight Lines v. Loftis, Tex.Sup., 223 S.W.2d 613; Wright v. South Carolina Power Co., 205 S.C. 327, 31 S.E.2d 904; Prosser on Torts 269, § 39; 2 Restatement, Torts 752, § 286(c); 38 Am.Jur. 834, Negligence, § 163; 45 C.J. 726, Negligence, § 111. A statement of this principle, which has been quoted with approval in many cases, is that set forth in 38 Am.Jur., supra: 'An action for negligence based upon an alleged violation of a statute or ordinance cannot be maintained where it appears that the statute or ordinance was enacted or ordained for a purpose wholly different from that of preventing the injury of which complaint is made. To afford a right of action for injury from the violation of a statute or ordinance, the complainant's injury must have been such as the statute or ordinance was intended to prevent. If none of the consequences which the enactment was designed to guard against have resulted from its breach, such a breach does not constitute an actionable wrong, even though some other injurious consequence has resulted. It is not enough for a plaintiff to show that the defendant neglected a duty imposed by statute and that he would not have been injured if the duty had been performed. He must go further and show that his injury was caused by his exposure to a hazard from which it was the purpose of the statute to protect him.'

We have several times applied the analogous principle, set forth in clause (a) of § 286, Restatement of Torts, cited above, to the effect that the violation of a statute or ordinance is not actionable negligence except with reference to persons intended to be protected by such statute or ordinance. See Rampon v. Washington Water Power Co., 94 Wash. 438, 162 P. 514, L.R.A.1917C, 998; Bogdan v. Pappas, 95 Wash. 579, 164 P. 208; Stoddard v. Smathers, 120 Wash. 53, 206 P. 933; Winsor v. Fonda, 126 Wash. 402, 218 P. 219; Byrne v. Stanford, 159 Wash. 271, 292 P. 1014.

On like reasoning, and consistent with the general rule followed in other jurisdictions, we conclude that the violation of the heating ordinance of the city of Seattle, as alleged in the amended complaint, although constituting negligence per se, does not give rise to liability in this case unless it can be said that such ordinance was designed to prevent tenants and their families from being injured as a result of using auxiliary heating appliances.

The original ordinance in question and an amendatory ordinance (both of which will hereinafter be referred to as one ordinance), bear the following titles:

Ordinance No. 39104. 'An Ordinance Relating to Public Health, defining healthful temperature, and providing for and requiring the maintenance of healthful temperature in certain buildings and places in the City of Seattle, providing penalties for violations thereof, and declaring an emergency.'

Ordinance No. 47936. 'An Ordinance Relating to the Public Health and Amending Sections 2, 5, 6 and 8, of Ordinance No. 39104 and declaring an emergency.'

According to the briefs, this ordinance requires apartment house landlords to maintain a minimum temperature of sixty degrees between seven a. m. and eight a. m. A minimum temperature of sixty-five degrees is required between eight a. m. and nine a. m. We are not informed what minimum temperature is prescribed by the ordinance for the remaining hours of the day. This accident occurred at about eight-thirty a. m., when a minimum temperature of sixty-five degrees was required.

We think it is plain from the title of this ordinance and from the terms thereof which have been brought to our attention, that the purpose of the enactment was to protect tenants from discomfort and illness due to the maintenance of subnormal temperatures in apartment buildings where central heating is provided and is under the sole control of the landlord. We do not believe that one of the purposes of the ordinance was to obviate the necessity of the tenants using portable electric plug-in heaters because of any supposed danger inherent in the use of such appliances.

Movable electric heating appliances are not dangerous instrumentalities. Such heaters are undoubtedly in use in thousands of homes and apartments in the city of Seattle. We are not aware of any restriction, by ordinance or otherwise, upon the sale or use of such devices.

The minimum temperatures prescribed in the heating ordinance also indicate that this enactment was not designed to obviate all necessity for auxiliary heating equipment. There are few people who would regard these minimum temperatures as comfortable and, in recognition of this, most landlords supply heat during these hours in excess of ordinance requirements. But where the landlord furnishes no more heat than specified in the ordinance, tenants have no alternative but to supply auxiliary heating, or suffer the discomfort, or move out. Therefore, even assuming full literal compliance with the heating ordinance, the possibility that tenants would resort to auxiliary heating was contemplated. Accordingly, the ordinance was not designed to prevent or render wholly unnecessary the use of such devices either because of any supposed danger inherent in such use or for any other reason.

In this case we assume, on the basis of the pleadings, that the electric plug-in heater would not have been in use at the time of the accident (eight-thirty a. m) if the landlord had supplied the room temperature of sixty-five degrees required by ordinance. But since, as we have indicated above, this ordinance was not enacted with reference to any hazard involved in the use of such heaters, the appellant's injuries were not such as the ordinance was intended to prevent. Stated in the manner of Restatement of Torts, supra, the ordinance is not intended to protect an interest of the appellant from this particular hazard. This being so, the negligence of respondents in violating the ordinance did not give rise to liability, and the amended complaint, in so far as it grounds negligence upon such violation, does not state a cause of action.

While appellant places chief reliance upon the alleged violation of the heating ordinance, the amended complaint also alleges, as a basis of liability, a breach of duty arising by virtue of the landlordtenant relationship and independently of ordinance requirements.

To establish liability on this basis for...