Sandoe v. Lefta Associates

• Decision Date: 05 December 1988
• Docket Number: No. 87-149.,No. 86-1506.,86-1506.,87-149.
• Citation: 551 A.2d 76
• Parties: R. Sonya SANDOE and John Sandoe, Appellants, v. LEFTA ASSOCIATES and Norair Engineering Corp., Appellees. LEFTA ASSOCIATES, Cross-Appellant, v. NORAIR ENGINEERING CORP., Appellee.
• Court: D.C. Court of Appeals

551 A.2d 76

R. Sonya SANDOE and John Sandoe, Appellants, v. LEFTA ASSOCIATES and Norair Engineering Corp., Appellees.

LEFTA ASSOCIATES, Cross-Appellant, v. NORAIR ENGINEERING CORP., Appellee.

No. 86-1506.

No. 87-149.

District of Columbia Court of Appeals.

Argued February 2, 1988.

Decided December 5, 1988.

Maurice R. Dunie, with whom Patricia E. Connelly, Bethesda, Md., was on the brief, for appellants.

Walter J. Murphy, Jr., Wheaton, Md., for appellee/cross-appellant Lefta Associates.

Thomas M. Hogan, Washington, D.C., for appellee Norair Engineering Corp.

Before ROGERS, Chief Judge,^* and MACK and STEADMAN, Associate Judges.

ROGERS, Chief Judge:

These consolidated appeals raise two principal issues: the constitutionality of the District's statute of repose, D.C.Code § 12-310 (1981), and the sufficiency of the jury instructions on the standard of care that is owed by a landowner to a person lawfully on the premises. Appellants R. Sonya Sandoe and John Sandoe and appellee/cross-appellant Lefta Associates contend that the statute violates due process and equal protection because its distinction between construction professionals and owners and occupiers of land is an arbitrary classification that is not rationally related to furthering a legitimate governmental purpose. The Sandoes also contend that the trial judge erred in refusing to instruct the jury that a landowner has a duty to persons lawfully on the premises to inspect the property for latent, dangerous defects. We hold that § 12-310 is constitutional. We further hold that the trial judge's instructions did not adequately inform the jury of the factors to be considered in determining whether or not Lefta breached its duty of reasonable care to Mrs. Sandoe. Accordingly, we reverse and remand for a new trial.

I

R. Sonya Sandoe and John Sandoe sued Lefta Associates ("Lefta"), appellee/cross-appellant, a partnership that owns the Embassy Square Hotel at 22nd and N Streets, N.W., and Norair Engineering Corp. ("Norair"), appellee, the general contractor and builder of the hotel, for damages resulting from personal injuries suffered by Mrs. Sandoe while she was making a routine pest inspection of the hotel at the owner's request. Her injuries occurred when she stepped on an airshaft grate which collapsed, causing her to fall thirty feet. The complaint alleged negligent construction and maintenance of the grate by Lefta and Norair. Lefta filed a cross-claim against Norair for indemnification and contribution.¹

In November, 1983, Judge Hannon granted Norair's motion for summary judgment on the ground that the Sandoes' cause of action was barred by the District of Columbia's statute of repose, D.C.Code § 12-310 (1981),² because Mrs. Sandoe's injury occurred more than ten years from the date that the hotel was substantially completed. A jury trial of the Sandoes' claims against Lefta, the only remaining defendant, resulted in a verdict in favor of Lefta. The Sandoes' motion for a new trial was denied.

Most of the relevant facts are not in dispute.³ At the time of her fall, Mrs. Sandoe was a licensed exterminator with Town and Country Exterminating Company, which was owned by the Sandoes. Lefta had hired Town and Country because of a serious rat infestation problem at the hotel. On September 20, 1979, Mrs. Sandoe went to the hotel to assist her son with the rat extermination problem, which he had been unable to resolve. After inspecting interior portions of the building, Mrs. Sandoe began inspecting the hotel's outside perimeter for rat burrows.

Around the perimeter of the hotel are a series of airshafts that serve the hotel's underground garage. Each shaft is equipped at the bottom with a fan, and each shaft is covered with a metal grate. Mrs. Sandoe walked over several of the grates without incident. One grate, however gave way when she stepped on it, and she fell thirty feet to the concrete bottom of one of the shafts. An angle iron which missing, so that when Mrs. Sandoe stepped on the grate, it immediately collapsed. Mrs. Sandoe sustained serious physical in juries as a result of the fall which produced great pain and suffering, significant dislarge medical bills, and resulted in a loss of consortium for her husband.

The main issue at trial was determining who was responsible for the absence of the angle iron. Frank Peters, Norair's general superintendent during construction of the hotel, testified that, to the best of his knowledge, all of the angle irons were installed in all of the shafts when Lefts assumed control of the building. He believed that damage to a bolt removed from one of the angle irons was caused by the raising and lowering of a covering grate, presumably by Lefta's employees after the building was constructed. The shafts and fans were designed to be serviced by removing the grate and lowering a ladder down into the shaft. Since a grill was welded over the interior side of each fan, it would be difficult to service the fan and clean the shaft's drainage hole from inside the garage. Peters also indicated that, because of financing commitments, there was great urgency to complete construction of the hotel. Lacking the proper tool to install the angle irons with anchor bolts as contemplated in the architects' plans, Peters directed, without the architects' approval, that the angle irons be secured by using a "ram set" gun, which he contended was an acceptable alternative.

Peters' testimony was disputed by two expert witnesses. Elliot Gitlin, one of the hotel's architects, testified that the plans he approved required the angle iron to be bolted with % inch diameter anchor bolts. A ram set gun would not have been a suitable alternative to fasten these bolts since the ram set nail is at most Vs of an inch in diameter and is likely to fracture the masonry wall when installed. Edgar Seaquist, a licensed consulting engineer hired by Lefts to investigate the accident, testified that the ram set method would be completely inadequate. He stated, how ever, that he had carefully inspected the wall of the subject shaft and found no evidence of ram set holes or any other indication that an angle iron had ever been affixed to this wall. This testimony was corroborated by Richard Tate, Lefta's chief of maintenance, who said that he inspected all of the ventilation shafts after Mrs. Sanability, doe's fall and found that two of the shafts were missing angle irons.

There was additional testimony about why this unsafe condition was not detected and corrected during the eleven years between the completion of construction and Mrs. Sandoe's accident. Mr. Gitlin testified that he conducted a "walk around" inspection of the premises before the building was turned over to Lefts. However, he did not inspect such detailed matters as the installation of angle irons and grates because he assumed that the general contractor had properly carried out the installation in accordance with the plans approved by the architects. Gitlin also testified, without contradiction, that the District of Columbia building and safety inspectors who inspected the building prior to issuing the certificate of occupancy also probably overlooked the missing angle irons.

Mr. Tate testified that there was no occasion for Lefts to remove the grates over the ventilation shafts because the shafts were cleaned, and the fans maintained, from inside the garage. Although the grills over the fans were originally welded in place, the welds were later broken so that the grillwork could be removed easily. Approximately once a month, Lefts employees open the grillwork and perform any necessary maintenance work the fans may need. To clean the drains at the bottom of the shafts, a long rod with a scoop on the end is extended through the grill from inside the garage into the shaft to remove any materials in the drain. Adolph Ratulangi, the hotel's assistant manager, verified that the airshafts were cleaned from within the garage by use of such a rod. Since the hotel did not have a ladder long enough to reach the bottom of the thirty-foot shafts, he believed that no employee had ever entered the shaft from the top grate. As far as he knew, no Lefta employee had inspected the grate that had collapsed under Mrs. Sandoe because without notice of any problem with the grates there was no reason to make such inspections. After all of the testimony was received, the jurors were taken to the hotel to view the site.

II

The Sandoes and Lefta contend that D.C.Code § 12-310 violates the due process and equal protection clauses of the fifth amendment of the United States constitution because the statute's distinction between construction professionals, who are accorded protection under the statute, and owners and occupiers of land, who are not, is an arbitrary classification scheme not rationally related to furthering a legitimate governmental interest.⁴ The Sandoes concede that § 12-310 does not implicate either a fundamental right or a suspect class. Thus, the statute must be examined under the rational basis standard and upheld as constitutional if the classification it creates is rationally related to a legitimate state purpose. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 657, 101 S.Ct. 2070, 2077, 68 L.Ed.2d 514 (1981); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed. 2d 520 (1976). A particular statutory classification scheme will not be set aside "if any set of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-05, 6 L.Ed.2d 393 (1961). Because we find such justification we hold that § 12-310 is constitutional.

As the Sandoes recognize, nearly every federal court which has considered the constitutionality of statutes of repose⁵ like § 12-310, including two federal district courts construing D.C.Code § 12-310, have upheld their constitutionality. See Hartford Fire...