Audrey Whetzel, Frederick Whetzel, Jr., and Frederick Whetzel v. Jess Fisher Management Co.

282 F.2d 943
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 14, 1960
Docket15287_1
StatusPublished
Cited by65 cases

This text of 282 F.2d 943 (Audrey Whetzel, Frederick Whetzel, Jr., and Frederick Whetzel v. Jess Fisher Management Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Audrey Whetzel, Frederick Whetzel, Jr., and Frederick Whetzel v. Jess Fisher Management Co., 282 F.2d 943 (D.C. Cir. 1960).

Opinions

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 [945]*94530, 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 Im[946]*946deed, 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.

[947]*947Commentators 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 Statut.e, 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.

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