Cooper v. Goodwin, 71-1100.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: SOBELOFF, Senior Circuit , concurring
• Citation: Cooper v. Goodwin, 478 F.2d 653, 155 U.S.App.D.C. 449 (D.C. Cir. 1973)
• Decision Date: 12 February 1973
• Docket Number: No. 71-1100.,71-1100.
• Parties: William S. COOPER, Appellant, v. William R. GOODWIN et al.

478 F.2d 653 (1973)

William S. COOPER, Appellant, v. William R. GOODWIN et al.

No. 71-1100.

United States Court of Appeals, District of Columbia Circuit.

Argued April 21, 1972.

Decided February 12, 1973.

M. Michael Cramer, Washington, D. C., with whom Paul H. Weinstein and Laurence Levitan, Chevy Chase, Md., were on the brief, for appellant.

Patrick J. Attridge, Washington, D. C., for appellees.

Before BAZELON, Chief Judge, SIMON E. SOBELOFF,^* Senior Circuit Judge for the Fourth Circuit, and LEVENTHAL, Circuit Judge.

BAZELON, Chief Judge:

This is an appeal from a directed verdict for the appellees on appellant Cooper's claim that he was injured by reason of Mr. and Mrs. William Goodwin's negligent maintenance of their basement stairs. We reverse and remand this case for trial under the standard established by this court's opinion in Smith v. Arbaugh's Restaurant, Inc.¹

I.

The relevant facts are not in dispute. On November 26, 1967, the appellant Cooper was invited for a social visit at the home of his friends the Goodwins. At the conclusion of his call, the Goodwins indicated to Cooper that he should leave through the basement area of the house. As Cooper started to descend the final three stairs down into the basement, he slipped. He reached for a handrail, but there was none. He fell and injured his back. Cooper subsequently underwent disc surgery and contends that he has suffered a serious, incapacitating injury as a result of the Goodwins' negligence.

Cooper filed suit in the District Court, claiming damages for his medical expenses, loss of earnings, and pain and suffering.² He alleged that the Goodwins had been negligent in several respects: their failure to have a handrail on the stairs; failure to have stair treads; maintaining a highly slippery coat of wax on the stairs; and their failure to warn of such conditions. The Goodwins denied these allegations, and raised as a defense that Cooper had been contributorily negligent in failing to "exercise reasonable care for his own safety while descending the stairs in the light of the obvious conditions."³

On the first day of trial, January 7, 1971, Cooper testified that as he placed his foot on the fatal step, it felt "very slippery just like you step on a sheet of ice;" that he "tried to grab ahold of something, but there wasn't anything to grab hold of." ⁴ He also stated that Mr. and Mrs. Goodwin had not warned him that the stairs were waxed, or that the handrail, which was on the stairs when he had visited the year before, was missing.

Cooper's counsel also introduced into evidence a portion of section 2508 of the Housing Code of the District of Columbia:

Interior stairs more than two risers high shall have an enclosing wall, balustrade, or other guard on each side and shall have a hand rail on at least one side.

The trial court correctly ruled that this regulation was "admissible, but solely for the purpose of permitting the jury to consider it in determining whether or not there was exercise of due care on the part of the defendant" and not as negligence per se.⁵ The judge stated that at the close of the trial, he would charge the jury in detail as to the consideration it should give this housing regulation.

On the following day, at the close of Cooper's case, the Goodwins moved for a directed verdict on the ground that since Cooper was a social guest toward whom the homeowners owed only the duty of refraining from active negligence, no actionable negligence had been shown. The trial court agreed, stating "in my opinion there is no evidence of negligence in the case which would warrant it to go to the jury" and granted the motion.⁶

From this ruling, Cooper now appeals.

II.

This case illustrates the problems which, as we pointed out in our recent ruling in Smith v. Arbaugh's⁷ result from rigid applications of the common law classifications of trespasser, licensee and invitee to determine the duty of care owed by a landowner/occupier to persons entering upon his property. Harshness inheres because the trial judge removed from the province of the jury the determination of crucial factual issues and resolved them himself.⁸ Confusion over the exact duty owed to Mr. Cooper, a social guest responding to an explicit invitation to use the basement stairs, is apparent in the cases cited by counsel for their respective contentions.⁹ The trial court undoubtedly relied on the legal rule that a social guest may recover for active negligence only.¹⁰ This ruling, while it may have once comported with existing case law, we now hold to be in error.¹¹

The standard adopted in Smith—that "a landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances," ¹² seeks to eliminate the harshness of and confusion over the common law classifications. Furthermore, as discussed in Smith, we believe that this standard places the crucial determination—whether Cooper suffered from an unfortunate accident, from his own carelessness, or from the Goodwins' negligence—where it should be, with the jury and not the court. It is for the jury to consider and weigh all the circumstances of Cooper's fall, including those which affect the foreseeability of the injury,¹³ the burden of avoiding the injury, and the care which appellant as a reasonable man could be expected to take for his own safety.

There may be some concern that less-affluent home owners and apartment dwellers will be severely penalized for the hazards of their dwelling places which they cannot afford to repair or remove. However, the financial capacity of the occupant to undertake safety precautions should be taken into account in determining what was, for him, reasonable maintenance conduct. Financial hardship should be no excuse for failing to take those measures which are within a defendant's capacity—for example, an adequate warning. Despite the fears expressed in the concurrence, both this and the Smith opinion hold that the duty to maintain one's property might be fully discharged by a warning of a dangerous condition. We are therefore not persuaded that owners of residential property should be excluded from the standard of reasonable care under all the circumstances.

Under this standard, the jury will have wide latitude to exercise its own rough common sense as to the degree of care which was reasonable for particular home owners or dwellers to take toward their guests. As we said in Smith this standard cannot be set in the abstract but will vary according to the circumstances of each and every case. Rather than rely on rigid labels and rules of law to provide the illusion of certainty and fairness, we choose the jury as the mature institution to take account of the infinite variety of fact situations which affect the reasonableness of human conduct.¹⁴

Accordingly, appellant Cooper is entitled to a new trial at which the jury is instructed that the Goodwins owed him the duty of maintaining their property in a condition reasonably safe under all the circumstances. Whether or not the Goodwins breached this duty is a question for the jury.

Reversed and remanded.

LEVENTHAL, Circuit Judge, concurring:

The rule established by this court prior to Smith v. Arbaugh's Restaurant ¹ requires reversal of the judgment of the District Court. Plaintiff's counsel called the court's attention to the proposed Jury Instructions prepared by the Bar Association which set forth, insofar as pertinent: ²

"A Landowner owes to a guest (or licensee by invitation) the duty to avoid injuring him through negligence. In addition, he owes him the duty to repair dangerous conditions which are known to the owner and which would not be discernible to the guest or licensee, or to warn him of the existence of such dangerous conditions."

This suggested instruction was annotated with a reference to Firfer v. United States ³ which clearly supports the wording in the text. However, the defendant's counsel persuaded the District Court to read Firfer in such a way so as to require active negligence, and to dismiss the case for lack of showing of active negligence. In my view this was a most strained reading, and the dismissal was error.

As for the retrial, I agree with the majority that the sound evolution that is the hallmark of the common law has brought it at the present time to the point where the traditional distinction between licensees and invitees is properly considered the relic of a bygone age. The often technical and arbitrary classifications—including Firfer's further subdivision into invitees; licensees by invitation (social guests) and bare licensees—seem to promote confusion, and to straitjacket the courts in pursuit of good sense and justice.

In England the legislature adopted the recommendation of the Law Reform Committee to abolish the significance of the common law distinction between invitees, licensees, and contractual visitors, and to place on an occupier of premises the same duty—described as the "common duty of care"—to all lawful visitors.⁴ However, the English reflection is not necessarily precedent for revision of instructions to the jury as a "mature institution." Indeed, it appears that the fact that the jury has virtually disappeared from negligence actions in England may have played some part in encouraging passage of the law.⁵ But the concept was ripe for extension, and has been applied in the United States by the Supreme Court in an admiralty decision,⁶ and then by the courts of California, Hawaii, Colorado, and recently, after our Smith opinion, by the Minnesota Supreme Court.⁷

This does not, however, mean that the requirements of judicial administration in a modern, largely urban, industrialized society necessarily extend so far as to require a change in the liability of an occupant of land to a trespasser. I would follow the example of the Minnesota court, and defer, as a separate question, the issue of liability to trespassers, ...