Scoggins v. Jude

• Decision Date: 04 September 1980
• Docket Number: No. 79-814.,79-814.
• Citation: 419 A.2d 999
• Parties: Donald E. SCOGGINS, Appellant, v. Glenn G. JUDE et al., Appellees.
• Court: D.C. Court of Appeals

419 A.2d 999

Donald E. SCOGGINS, Appellant, v. Glenn G. JUDE et al., Appellees.

No. 79-814.

District of Columbia Court of Appeals.

Argued May 7, 1980.

Decided September 4, 1980.

COPYRIGHT MATERIAL OMITTED

Ronald E. Tucker, Washington, D. C., for appellant.

Edward S. Horowitz, Washington, D. C., for appellees.

Before KELLY, GALLAGHER and FERREN, Associate Judges.

FERREN, Associate Judge:

Appellees, a tenant and a guest in an apartment owned by the appellant-landlord, were awarded a judgment on a jury verdict for property damage and personal injuries suffered when part of the living room ceiling fell. Appellant contends that (1) the trial court should not have submitted the question of his negligence, as landlord, to the jury because there was insufficient evidence he had notice that the ceiling crack was leaking; (2) the court erred in withholding the issue of contributory negligence from the jury; and (3) in any event, appellant had satisfied the claim by abatement of the last two months of the tenant's rent. We agree that the jury should have considered whether the tenant (but not the guest) was contributorily negligent. Accordingly, we affirm the judgment for the appellee-guest but reverse and remand for a new trial of the appelleetenant's claim.

I.

Appellee Rosalind M. Eugene, a tenant, lived at 55 Forrester Street, S.W., an apartment building owned by the appellant, Donald E. Scoggins. On November 9, 1977, Eugene asked a friend, Glenn G. Jude, to help her move some furniture from under a dripping crack in the living room ceiling. As Eugene and Jude worked, a large portion of the ceiling plaster, saturated with water, fell on them. Eugene and Jude filed suit against Eugene's landlord (Scoggins) for property damage and personal injuries.

At a jury trial, Eugene and Jude both testified that the crack had begun as a small crack several months before the incident but had widened and dripped more intensively and frequently as the weeks passed. Eugene testified that she had called Scoggins about the problem many times, and that he had seen the crack about a week before the accident but had taken no steps to repair it. Jude confirmed that Scoggins had visited the apartment about a week before the ceiling fell, looked at the crack, and saw it dripping. Appellees' testimony was substantially corroborated by Gloria Moss, who had lived with Eugene in August and September 1977. Moss testified that Eugene had reported the crack and dripping to Scoggins during those two months, and that Scoggins had come to the apartment to inspect the ceiling.

Scoggins admitted that he had seen the crack in the ceiling but that "considering some other budget restraints I had at the time, I felt in my particular judgment it was something I thought I would have a chance to take care of before any real damage would take place."

At the end of December 1977, Eugene voluntarily moved out of the apartment, owing two months' rent. Scoggins permitted her to leave without paying because of the accident.

At the end of all of the testimony, counsel for Jude and Eugene made a motion for a directed verdict. The court ruled that the issue of the landlord's negligence would go to the jury but that, as a matter of law, Scoggins would not be allowed to rely on the affirmative defenses of assumption of risk and contributory negligence. The trial court buttressed this conclusion by noting that Scoggins had not included either defense in his pleadings.

The jury returned a verdict for Eugene and Jude, awarding them $7,100 and $3,600, respectively. Scoggins appeals the judgments entered on the verdict.

II.

We cannot accept Scoggins' contention that there was insufficient evidence he had notice of the leaking crack to warrant submission of the negligence issue to the jury. Scoggins himself testified that "a few weeks or so prior to the incident" he visited the apartment after Eugene had complained about the crack. Scoggins had examined the crack and determined that it would cause no real damage before he had "a chance to take care of" it. Scoggins, therefore, clearly knew about the crack.

He contends, however, that the cracks he saw on this visit were not "wide cracks" within the meaning of the District of Columbia Housing Regulations, § 2504.¹ He argues, moreover, that unless he was on notice that water was dripping from the crack-a violation of Housing Regulations §§ 2507 and 2511-he was not on notice of violations of the regulations and, therefore, could not be held liable for negligence.

This argument rests on a faulty premise. Evidence of compliance with a statutory or administrative norm neither establishes due care nor prevents a finding of negligence. See Turner v. American Motors General Corp., D.C.App., 392 A.2d 1005, 1007 (1978). In any event, although Scoggins testified that he had not seen water dripping from the crack or the buckets collecting water, three witnesses-Jude, Moss, and Eugene-testified to the contrary. Their testimony was sufficient to create an issue of fact for the jury. Scoggins' first argument fails.

III.

Scoggins also contends that, in discharging Eugene's obligation to pay the last two months' rent, he had satisfied any claim that Eugene might make, thus barring the present suit.² Scoggins, however, did not plead or make this argument before the trial court. See Super.Ct.Civ.R. 8(c).³ Absent a manifest miscarriage of justice, this court, in civil cases, will not accept an argument presented for the first time on appeal. See W. W. Chambers, Inc. v. Audette, D.C.App., 385 A.2d 10, 15 (1978); Dunn v. Evening Star Newspaper Co., D.C. App., 232 A.2d 293, 297 (1967).

There can be no miscarriage of justice on this issue because there is no record support for Scoggins' contention that his forgiveness of two months' rent legally satisfied Eugene's claim. Scoggins testified that when Eugene gave notice of her intent to move, he told her: "Since you are moving at the end of the year because of what happened I'll just abate more or less as an inconvenience-type thing[.]" On cross-examination, Eugene agreed that she "and Mr. Scoggins talked about allowing [her] to leave under those circumstances because th[e] accident did happen." This testimony, however, does not establish that Scoggins offered, and Eugene accepted, settlement of every claim whatsoever for both personal injury and property damage arising out of the ceiling incident. The testimony establishes only that Scoggins abated the rent in consideration of Eugene's inconvenience in having to put up with fallen plaster and a hole in the ceiling. On this record, we cannot find evidence sufficient to support appellant's belated claim of satisfaction.

IV.

Finally, appellant claims that the trial court erred in refusing to submit the issue of contributory negligence to the jury.

A. We must deal, first, with appellees' contention that Scoggins cannot now allege contributory negligence because he did not assert it as a defense in the pleadings. Although this argument comports with a literal construction of Super.Ct. Civ.R. 8(c), see note 3 supra, we recently held that "a defense should not be lost" where the plaintiff has notice of it and no prejudice results from failure to include the defense in the pleadings. Jackson v. District of Columbia, D.C.App., 412 A.2d 948, 951 (1980) (citing cases). Scoggins' reliance on contributory negligence satisfies our flexible standard. Although he did not assert it as a defense in his answer, he did note in his pretrial settlement statement that appellees were contributorily negligent in hanging plants from, and being present under, the damaged ceiling. Compare Kanelos v. Kettler, 132 U.S.App.D.C. 133, 136 n. 15, 406 F.2d 951, 954 n. 15 (1968). Eugene and Jude accordingly acknowledged in their own pretrial settlement statement: "It is plaintiffs' understanding that defendant will contend that plaintiffs were contributorily negligent in that a hanging plant may have been at least a partial cause of the ceiling falling in and that the ceiling fell due to the weight of the hanging plant." Appellees, therefore, had a full and fair opportunity to litigate the issue, and we can discern no prejudice to them in permitting the jury to consider it even though not raised in Scoggins' answer.⁴

B. The trial court ruled out a contributory negligence defense on the ground that one of the purposes of the Housing Regulations was protection of the safety of tenants and, as a result, "a tenant is not obligated to move where there is a condition within the leased premises which is or could be unsafe." The court premised its conclusion on Martin v. George Hyman Construction Co., D.C.App., 395 A.2d 63 (1978), in which we held that neither contributory negligence nor assumption of risk bars recovery for breach of a duty imposed by regulations governing workplace safety, because either defense would defeat the purpose of the regulations. See id. at 68-69.⁵

Appellant does not contest the trial court's refusal to instruct the jury on assumption of risk. Because of the relationship of this defense to contributory negligence, however, it is important to make clear why the court took this position and what the implications are for contributory negligence.

Assumption of risk is an available defense when a plaintiff voluntarily has incurred a known risk. See Martin, supra at 71; Harris v. Plummer, D.C.App., 190 A.2d 98, 100 (1963); Kanelos, supra, at 137, 406 F.2d at 955; Restatement (Second) of Torts § 496E, Comment a (1965). Commonly, this means voluntary exposure to a reasonable risk; e. g., attendance at a baseball game, where balls are hit sharply into the stands. See Restatement, supra § 496A, Comment c.

In contrast, contributory negligence is unreasonable conduct. Martin, supra at 69. Specifically, it is conduct "which falls below the standard to which a plaintiff should conform for his own protection" and contributes to the plaintiff's injury. R...