Whetzel v. Jess Fisher Management Co.

• Decision Date: 14 July 1960
• Docket Number: No. 15287.,15287.
• Citation: 108 US App. DC 385,282 F.2d 943
• Parties: Audrey WHETZEL, Frederick Whetzel, Jr., and Frederick Whetzel, Appellants, v. JESS FISHER MANAGEMENT CO., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

108 US App. DC 385, 282 F.2d 943 (1960)

Audrey WHETZEL, Frederick Whetzel, Jr., and Frederick Whetzel, Appellants, v. JESS FISHER MANAGEMENT CO., Appellee.

No. 15287.

United States Court of Appeals District of Columbia Circuit.

Argued January 27, 1960.

Decided July 14, 1960.

Petition for Rehearing Denied September 14, 1960.

Mr. Daniel I. Sherry, Washington, D. C., with whom Mr. Eugene X. Murphy, Washington, D. C., was on the brief, for appellants.

Mr. Richard W. Galiher, Washington, D. C., with whom Mr. William E. Stewart, Jr., Washington, D. C., was on the brief, for appellee.

Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.

Petition for Rehearing En Banc Denied September 14, 1960.

BAZELON, Circuit Judge.

In Bowles v. Mahoney, this court adhered to the common-law rule that "absent any statutory or contract duty, the lessor is not responsible for an injury resulting from a defect which developed during the term."¹ Since that case was decided, the Commissioners of the District of Columbia have promulgated regulations concerning maintenance and repair of residential property. The primary question here presented is whether these regulations impose a "statutory * * * duty" on the lessor not presented in Bowles v. Mahoney. We conclude that they do.

The issue arises upon an appeal from a summary judgment entered against the plaintiffs below. Their amended complaint alleged that on March 1, 1956, Audrey Whetzel rented an apartment from the appellee for $75.00 per month upon a one-year lease which did not affirmatively place the burden of repairs, other than those caused by the tenant's negligence, on either party.² On June 30, 1956, four months after she entered into possession, the entire bedroom ceiling fell, causing the injuries of which she complains.³ The principal theory of her action is that the appellee, with knowledge of the defect, negligently permitted the ceiling to remain in an unsafe condition.⁴

I. The Applicable Law

Appellant contends that the Housing Regulations establish a standard of conduct for the landlord, which, if negligently breached, allows an injured tenant to recover. They rely heavily on the landmark case of Altz v. Lieberson, 1922, 233 N.Y. 16, 134 N.E. 703, 704.

That case also involved a tenant injured by a falling ceiling. Judge Cardozo, writing for the New York Court of Appeals, held that the New York Tenement House Law, which provided that "every tenement house and all the parts thereof shall be kept in good repair," thus "changed the ancient rule" and imposed upon landlords a duty that "extends to all whom there was a purpose to protect." That statute did not specify who had the duty of repair; nor did it speak of tort liability. It only authorized penalties in criminal enforcement proceedings.⁵ Nevertheless, the court held that:

The Legislative must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by anyone. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers.

Other jurisdictions have accepted the view that regulations which explicitly or implicitly require a landlord to repair may render him liable for injuries resulting from a failure to comply.⁶ Indeed, in our own case of Hill v. Raymond, 1935, 65 App.D.C. 144, 81 F.2d 278, we held that building regulations establishing certain standards for interior stairways were admissible as evidence of a landlord's negligence in failing to illuminate and to maintain a common stairway. See also Nielsen v. Barclay Corp., 1958, 103 U.S.App.D.C. 136, 138 note 8, 255 F.2d 545, 547 note 8.⁷

The view expressed in these cases is fully consistent with "the almost universal American and English attitude * * * that where legislation prescribes a standard of conduct for the purpose of protecting life, limb, or property from a certain type of risk, and harm to the interest sought to be protected comes about through breach of the standard from the the risk sought to be obviated, then the statutory prescription of the standard will at least be considered in determining civil rights and liabilities." 2 Harper & James, Torts 997 (1956). See also Restatement, Torts § 286 (1934); Prosser, Torts 152-64 (2d ed. 1955); Thayer, Public Wrong and Private Action, 27 Harv.L.Rev. 317 (1914).

This axiom of tort law tacitly recognizes that the continued vitality of the common law, including the law of torts, depends upon its ability to reflect contemporary community values and ethics. Holmes, The Common Law 1, 120-21, 149, 162-63 (1881); Cardozo, The Nature of the Judicial Process 24-25, 108 (1921); O'Meara, Natural Law and Everyday Law, 5 Natural Law Forum 85 (1960). An essential element of tort liability is the breach of a duty of care owed. Palsgraf v. Long Island R. R., 1928, 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253. Whether or not a duty of care exists is, basically, a question of law. Harper & James, Torts § 18.8 (1958). A penal statute which is imposed for the protection of particular individuals establishes a duty of care based on contemporary community values and ethics. The law of torts can only be out of joint with community standards if it ignores the existence of such duties. See Evers v. Davis, 1914, 86 N.J.L. 196, 90 A. 677; Morris, The Role of Criminal Statutes in Negligence Action, 49 Colum. L.Rev. 21 (1949).

The courts have not agreed, however, on the precise effect to be given a breach of a statute. A majority of American courts hold that the unexcused violation of a statute which is intended to protect a class of persons, of which the plaintiff is a member, against the type of harm which has in fact occurred is negligence per se. That is to say, such violation is negligence as a matter of law and the jury must be so instructed. Prosser, Torts 161 (1955). But a substantial and growing number of jurisdictions hold that violation of a penal statute is "only evidence of negligence which the jury may accept or reject as it sees fit." Ibid.

Commentators have pointed out that the per se rule may create serious rigidities and inequities. See, e.g., 2 Harper & James, Torts § 17.6 (1958); Morris, The Relation of Criminal Statutes to Tort Liability, 46 Harv.L.Rev. 453 (1933). Strictly applied, the per se rule can, for instance, render negligent as a matter of law a defendant who has taken all due precautions,⁸ and bar recovery of a plaintiff who is likewise free from fault in all but a technical sense. Prosser, Torts 162-63 (1955); Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum.L.Rev. 21, 29 (1949); Prosser, Contributory Negligence as a Defense to a Violation of Statute, 32 Minn.L.Rev. 105 (1948). Courts adhering to the per se rule have generally recognized its inadequacies and developed such doctrines as "statutory purpose" and "justifiable violation" in an effort to return to the jury responsibility for determining whether reasonable care was exercised in the circumstances.

This jurisdiction has adopted these exceptions. In a leading case, we held that "violation of an ordinance intended to promote safety is negligence. If by creating the hazard which the ordinance was intended to avoid, it brings about the harm which the ordinance was intended to prevent, it is a legal cause of the harm." Ross v. Hartman, 1943, 78 U.S.App.D.C. 217, 218, 139 F.2d 14, 15, 158 A.L.R. 1370.⁹ Accord, Danzansky v. Zimbolist, 1939, 70 App.D.C. 234, 105 F. 2d 457; Richardson v. Gregory, No. 15576, 108 U.S.App.D.C. 263, 281 F.2d 626.

The doctrine of statutory purpose was subsequently refined in Peigh v. Baltimore & O. R. R., 1953, 92 U.S.App.D.C. 198, 200, 204 F.2d 391, 393, 44 A.L.R.2d 671, where we pointed out that "the doctrine of negligence per se is one which must be applied cautiously, with an eye to essential fairness. If its use in a particular case tends to produce liability based not on real fault, or on any real departure from standards of prudent conduct, but only on a technicality, the courts are justifiably reluctant to apply it." There each party contended that the other was negligent as a matter of law. We held the doctrine of negligence per se inapplicable to the defendant's illegal conduct (leaving a boxcar on the street for an unreasonable length of time) because the prime purpose of the regulation was, in our view, to expedite traffic and commerce and not to protect passing motorists.¹⁰ Such violation was, however, admissible as evidence of negligence. With respect to the plaintiff's possible violations of regulations requiring him to drive at a not "imprudent speed" and to stay "as closely as practicable" to the right-hand side of the road, we held that these were safety regulations, and that violation would be contributory negligence per se. But we further held that inasmuch as these regulations turned upon reasonableness and did not establish "precise and rigid standards," the question whether a violation had in fact occurred was for the jury to determine.

Thereafter, in Hecht Co. v. McLaughlin, 1954, 93 U.S.App.D.C. 382, 214 F.2d

212, we went one step further toward the doctrine of evidence of negligence. There the vestibule doors of defendant's department store were constructed in violation of District of Columbia Building Regulations. It was clear that the purpose of the regulation was to promote safety and that plaintiff was a member of the class to be protected. Although this would seem to meet the standards of the Peigh and Ross cases, supra, we held that violation of the regulations was not negligence per se because the defendant had secured the approval of architects and public authorities before installing its doors. We found this conduct was "indicative of care on the Company's part, quite inconsistent with the theory that violation of the regulation alone, all else aside, is negligence as a matter of law." Accordingly we held that:

"The question of the

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