George Washington University v. Weintraub

• Decision Date: 25 February 1983
• Docket Number: Bo. 80-394.,No. 80-137.,80-137.
• Citation: 458 A.2d 43
• Parties: GEORGE WASHINGTON UNIVERSITY, et al., Appellants, v. Alan WEINTRAUB, Appellee. FRANK S. PHILLIPS, INC., Appellant, v. Noor HUSSAIN, Appellee.
• Court: D.C. Court of Appeals

458 A.2d 43

GEORGE WASHINGTON UNIVERSITY, et al., Appellants, v.Alan WEINTRAUB, Appellee. FRANK S. PHILLIPS, INC., Appellant, v.Noor HUSSAIN, Appellee.

No. 80-137.

Bo. 80-394.

District of Columbia Court of Appeals.

Argued November 13, 1980.

Decided February 25, 1983.

Fred M. Vinson, Jr., Washington, D.C., with whom David S. Klontz, Washington, D.C., was on briefs, for appellants.

Alan Weintraub, pro se.

Noor Hussain, pro se.

Before MACK, FERREN and PRYOR, Associate Judges.

MACK, Associate Judge:

Appellants, a landlord and building manager, contend in these consolidated appeals that the trial court erred in allowing appellees, their tenants, to recover damage for losses arising from a flood in their apartment building.At issue is the scope of a landlord's duty to maintain rental premises in compliance with housing code regulations.Specifically appellants challenge the right of tenants-appellees to bring an affirmative cause of action for damages under the circumstances of this case, the refusal of the trial court to bar recovery on the basis of an exculpatory clause in the rental contract, and the trial court's imposition of liability upon them for losses to appellees that resulted from an unforeseeable and unpreventable occurrence.We affirm in part, reverse in part, and remand in part.

I.

In October 1979appellees were tenants at 2115 F Street, N.W., an apartment building owned by the George Washington University and managed by Frank Phillips, Inc., appellants.A clause in appellees' leases relieved appellants of liability "for loss of or damage to property of [t]enant caused by . . . water . . . that may leak into or flow from any part of said premises through any defects in the roof or plumbing, or from any other source."

On October 11, 1979, the tenants were notified that the water supply to the apartment building was to be temporarily disconnected while plumbing repairs were performed in a nearby building.Appellee Weintraub returned to his apartment after the water supply had been reconnected and found his unit flooded by water seeping through the ceiling.Appellee Hussain's apartment, located directly beneath Weintraub's unit, was flooded similarly.When the building janitor was located some twenty to thirty minutes later, he determined that the water was coming from the apartment located directly above Weintraub's unit.The flood damaged appellees' personal property extensively and rendered their apartments uninhabitable for several days.Appellants authorized appellees to lodge at a nearby hotel at University expense until repairs were completed in approximately twelve days.

Appellees each filed suit against appellants seeking damages for losses arising from the flood, including reimbursement for hotel expenses and damage to their personal property.At trial appellants testified that no plumbing problems had come to their attention before this incident, that the plumbing at the premises was not defective, and that the October 11 flood had not damaged the plumbing.

The trial court considered appellees' claims¹ under two alternative theories of recovery, negligence and breach of the implied warranty of habitability.In analyzing the negligence claim the court reasoned that although appellants owed their tenants a duty of reasonable care under the circumstances, they were not required to foresee all possible dangers that might befall the person or property of appellees.The court distinguished cases in which landlords had been held liable to tenants on negligence theories² on the ground that there was "no evidence that the flood from Apartment 502 was more than a `one time thing,' and . . . [appellants] were in [no] position to anticipate it."The court concluded that appellees"did not prove that any discrete negligent act or omission by the [appellants] was the proximate cause of [appellees'] damage" and denied recovery under the negligence theory.³

The court did, however, allow appellees to recover damages under the breach of warranty theory on the ground that the very condition of appellees' apartments under these circumstances breached this warranty and the contractual nature of the landlord's obligations under the warranty of habitability allows recovery independent of any proof that the landlord was negligent.The court held that

once the tenant has established that his apartment is in a condition not compatible with the landlord's implied warranty of habitability and that he(the tenant) is not responsible, the burden shifts to the landlord to show that a third-party was responsible, that he(the landlord) has done all that he reasonably could to make the apartment habitable, and that the implied warranty has not been breached.

The court then considered two additional issues before determining the amount of damages to which appellees were entitled.First, the court noted that unlike the tenant in Javins v. First National Realty Corp.,138 U.S. App.D.C. 369, 428 F.2d 1071, cert. denied,400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185(1970) who sought an abatement in rent, appellees sought to use the warranty breach as the basis for an affirmative cause of action for damages.The court concluded that

the implied warranty of habitability may be used as a sword [as well as a shield].In Javins,the Court of Appeals observed by way of dictum that "[i]n extending all contract remedies for breach to the parties to a lease, we include an action for specific performance of the landlord's implied warranty of habitability."138 U.S. App.D.C. at 380, n. 61, 428 F.2d at 1082, n. 61(emphasis added).Since . . . Javins authorizes specific performance in warranty of habitability cases, the "legal" remedy of damages must be available a fortiori.

The court also considered the effect of the lease clause quoted supra by which appellants purport to relieve themselves of liability for water damage.After weighing public policy considerations and the effect of § 2912 of the Housing Regulations of the District of Columbia the court concluded that "[i]nsofar as the lease in question purports to nullify the implied warranty of habitability which is imported into every rental agreement, it is ineffective as a matter of law. . . .[I]t appears that the very inclusion of the paragraph in the lease violates section 2912."

Finally, the court awarded damages to compensate appellees for expenses incurred in connection with occupancy of alternative housing following the flood and for personal property losses proximately caused by the flood.The court did not abate appellees' rent, however, finding that "[t]o award both an abatement and expenses would . . . constitute a double recovery under the particular circumstances of this case"(footnote omitted).

These appeals followed.

II.

We affirm the trial court's "characteristically persuasive"⁴ ruling that the implied warranty of habitability "may be used as a sword (to collect damages) as well as a shield (to contest the obligation to pay rent)."

Javins v. First National Realty Corp., supra, held that leases for residential housing in this jurisdiction include an implied warranty of habitability."[B]y signing the lease the landlord [undertakes] a continuing obligation to the tenant to maintain the premises in accordance with all applicable law."Id.,138 U.S.App.D.C. at 379, 428 F.2d at 1081.The court further held that to fulfill this warranty landlords are required to comply substantially with the Housing Regulations of the District of Columbia which provide, inter alia, that

[e]very premises . . . shall be maintained and kept in repair so as to provide decent living accommodations for the occupants.This part of the Code contemplates more than mere basic repairs and maintenance to keep out the elements; its purpose is to include repairs and maintenance designed to make a premises or neighborhood healthy and safe.

5G DCRR § 2501.

In Javinsthe Circuit Court, reasoning that "[t]oday's urban tenants, the vast majority of whom live in multiple dwelling houses, are interested, not in the land, but solely in `a house suitable for occupation,'"id.,138 U.S.App.D.C. at 376, 428 F.2d at 1078(footnote omitted)(quotingIngalls v. Hobbs,156 Mass. 348, 31 N.E. 286(1892)), held that "leases of urban dwelling units should be interpreted and construed like any other contract."Id.,138 U.S.App.D.C. at 373, 428 F.2d at 1075(footnote omitted).Applying these principles to the lease before it, the court conditioned the tenant's obligation to pay rent upon, inter alia, the landlord's fulfillment of the implied warranty of habitability.The tenant in Javins was, therefore, allowed to assert breach of the implied warranty as a defense to the landlord's suit for possession based on nonpayment of rent.

The Javins court not only held that leases should be "interpreted and construed" as contracts, but indicated that all contract remedies, including specific performance, should be available in the event of a breach of the implied warranty.Id.,138 U.S.App.D.C. at 380 n. 61, 428 F.2d at 1082 n. 61.It is well established in contract law that, in the event of total breach, a party may elect to terminate the contract or, in the alternative, use the contract to sue for damages.11 WILLISTON ON CONTRACTS § 1292(3d ed. 1968).Accordingly, we hold that a tenant may use breach of the implied warranty of habitability as the basis for an affirmative action for damages in this jurisdiction.⁵In so holding we follow a growing number of jurisdictions that have extended this remedy to tenants.See, e.g., Jarrell v. Hartman,48 Ill.App.3d 985, 6 Ill.Dec. 812, 363 N.E.2d 626(1977);Mease v. Fox,200 N.W.2d 791(Iowa1972);Boston Housing Authority v. Hemingway,363 Mass. 184, 293 N.E.2d 831(1973);Kline v. Burns,111 N.H. 87, 276 A.2d 248(1971);Berzito v. Gambino,63 N.J. 460, 308 A.2d 17(1973);Fair v. Negley,257 Pa.Super. 50, 390 A.2d 240(1978);Teller v. McCoy,253 S.E.2d...