George Washington University v. Weintraub

458 A.2d 43, 1983 D.C. App. LEXIS 332

• Court: District of Columbia Court of Appeals
• Decided: February 25, 1983
• Docket: 80-137, 80-394
• Status: Published

Opinions

MACK, Associate Judge:

Appellants, a landlord and building manager, contend in these consolidated appeals that the trial court erred in allowing appel-lees, 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 1979 appellees 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 Wein-traub’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 appel-lees’ 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 appel-lees’ 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 Javins the 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) (quoting Ingalls 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.⁵ In 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 (Iowa 1972); 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 114 (W.Va.1979). See also Schoshinski, American Law of Landlord and Tenant, § 3:21 (1980).

III.

We likewise affirm the trial court’s ruling that the exculpatory clause in appel-lees’ leases, which purports to relieve appellants of liability for personal property damage caused by any source (including defective roofing and plumbing) is ineffective to bar recovery in this case.

The Housing Regulations and Javins, supra, squarely impose upon the landlord the obligation to fulfill the implied warranty of habitability. The very public policy considerations which prompted the Javins court to introduce the implied warranty, inequality of bargaining power between landlord and tenant and the scarcity of housing, have persuaded other jurisdictions to hold that the warranty of habitability may not be waived by private agreement of parties to a lease. See, e.g, South Austin Realty Association v. Sombright, 47 Ill.App.3d 89, 5 Ill.Dec. 472, 361 N.E.2d 795 (1977); Fair v. Negley, supra.

Were we to permit waiver of the implied warranty by an express provision in the lease, it would be a rare lease in which the waiver would not appear. As with the exculpatory clause, few, if any, tenants would be able to find housing on which the warranty had not been waived. To allow such wholesale, unbargained for waiver would make the implied warranty of habitability meaningless.

Fair v. Negley, supra, 257 Pa.Super. at 59, 390 A.2d 245.

We follow these jurisdictions and hold that the exculpatory clause at issue is ineffective to bar appellees’ recovery insofar as it amounts to a waiver or modification of their rights under the implied warranty of habitability. See 5G DCRR § 2912; Javins, supra 138 U.S.App.D.C. at 378 n. 49, 380 n. 58, 428 F.2d at 1080 n. 49, 1082 n. 58.

IV.

Our affirmance as to these specific rulings, however, does not dispose of the matter before us. While landlords clearly bear the burden of maintaining rented premises in compliance with housing code provisions, neither Javins and its progeny nor the Housing Regulations of the District of Columbia require that we impose upon landlords liability for losses arising from all conditions that violate the code. The Housing Regulations do not impose immediate and unconditional liability upon a landlord for code violations but, instead, contemplate sanctions only if repairs are not effected after actual or constructive notice of the defect reaches the landlord.⁶ See 5G DCRR § 2902.1(b).

In examining the scope of a landlord’s obligations in the context of personal injury claims arising from allegedly unsafe housing conditions, we have noted that “the Housing Regulations impose only a duty of reasonable care upon owners of rental property.” See Scoggins v. Jude, 419 A.2d 999, 1005 (D.C.1980). Similarly we have noted that “[a] landlord’s duty of reasonable care does not require him to foresee all possible dangers.” Noble v. Worthy, 378 A.2d 674, 677 (D.C.1977).

Appellees argue and the trial court found that liability for losses caused by conditions that violate the housing code and breach the implied warranty of habitability should be imposed without regard to whether a landlord has been negligent in maintaining the defective premises.⁷ “[Pjroof of negligence contravenes the whole idea of an implied warranty of habitability, which is a contractual obligation .... Proof of a breach of a contractual obligation is the sole requirement to establish ... liability.” Ap-pellees’ Brief at 8. Appellees would have us impose on a landlord strict liability for such losses unless the landlord could establish that the tenant or a third party was responsible for the defective condition of the premises. Appellees would, in effect, render a landlord an insurer of his tenants’ property.

We decline to adopt such a rigidly exclusive approach. We see nothing inherently inconsistent in a rule which conditions recovery under a theory alleging breach of the implied warranty of habitability upon a demonstration that the landlord has failed to exercise reasonable care to comply with the Housing Regulations and fulfill the implied warranty. As we have noted, “Pliability for breach of warranty ‘is a curious hybrid, born of the illicit intercourse of tort and contract ....’” Berman v. Watergate West, Inc., 391 A.2d 1351, 1355 (D.C.1978), (quoting W. Prosser, Law of Torts § 95 at 634 (4th ed. 1971)). Accordingly, we follow those jurisdictions that condition recovery under a breach of warranty theory upon actual or constructive knowledge on the part of the landlord of the defective condition. Such notice need not be given by the tenant if the landlord, in the exercise of reasonable care, could have become aware of the defective condition.⁸ See, e.g, Keller-Loup Construction Co. v. Gerstner, 476 P.2d 272 (Colo.App.1970) (allowing tenant to recover damages for personal property losses caused by burst hot water pipe on ground that landlord, who had exclusive control of heating system, failed to inspect and repair despite notice of defective condition of pipe); Mease v. Fox, supra; Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48, 301 A.2d 463, aff’d, 63 N.J. 577, 311 A.2d 1 (1973) (denying recovery to tenant injured by defective hot water faucet on the ground that, although landlord was obligated to maintain facilities under his control, landlord had no knowledge or reason to know of latent defect); Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979); State Farm Fire & Casualty Co. v. Home Insurance Co., 88 Wis.2d 124, 276 N.W.2d 349 (1979) (allowing tenant to recover damages for personal property losses caused by frozen plumbing where landlord had notice of the defective condition that caused the damage). See also Schoshinski, American Law of Landlord and Tenant, § 3:24 (1980).

We hold that a landlord must exercise reasonable care to maintain rental premises in compliance with the housing code in order to fulfill the implied warranty of habitability. In setting this standard we contemplate that before a landlord may be held liable for breach of the warranty he must have notice, actual or constructive, of defective conditions that constitute a breach. A landlord who exercises reasonable care may not therefore properly be held liable to a tenant for losses that arise from defective conditions he neither knew of nor had reason to know about or that could not be foreseen or prevented.⁹ The burden is upon the landlord to show lack of notice.

In the instant case there was testimony that there were no existing violations, that such flooding had never occurred before, that in reconnecting the water supply, according to accepted practice, the valves were handled carefully, and that subsequently plumbers had been unable to find any blockage or any damaged pipes. Indeed the trial court found that “there is no evidence that the flood from Apartment 502 was more than' a ‘one time thing’ and .. . the [appellants] were in [no] position to anticipate it.” We conclude that appellants met their burden of proof with respect to lack of notice and that the court erred, therefore, in using a warranty of habitability theory to impose upon them liability for appellees’ losses.

V.

Based on our review of the record, however, we find that appellees may be, as a matter of law, entitled to damages on other grounds. Appellees’ leases each included the following clause:

[I]f said premises become uninhabitable by reason of fire or other casualty not caused by the negligence of [t]enant, his servants or agents, the rental herein reserved shall be suspended until said premises shall have been restored to a habitable condition, nothing herein to be construed, however, as requiring [l]andlord to rebuild or restore said premises.

In its Opinion and Order the trial court found specifically that appellee Weintraub’s apartment was uninhabitable. “[T]he critical issue is whether the apartment was habitable for the period following the flooding and before any corrective action. The Court finds that it was not.”

Accordingly, we remand these cases for findings as to the amount of damages to which appellee Weintraub is entitled, whether appellee Hussain’s apartment was similarly uninhabitable, and, if so,, the amount of damages to which he is entitled.

In calculating these damage awards, the court should compute the amount of rent which should be abated pursuant to this clause and subtract from this figure any compensation already accepted by appellees, for the trial court correctly held that compensation in the form of both an abatement and reimbursement for hotel expenses would constitute double recovery.

So ordered.

1 . The trial court did not issue an opinion in No. 80-394 but did certify that the parties’ application for appeal and opposition thereto accurately characterized the facts, issues, and rulings below. See D.C.App.R. 6(d)(1). Because the facts, issues, and rulings outlined in these pleadings are substantially similar to those in No. 80-167 we dispose of both appeals together.

2 . Kanelos v. Kettler, 132 U.S.App.D.C. 133, 406 F.2d 951 (1968); Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 282 F.2d 943 (1960).

3 . Appellees contend on appeal that the trial court erred in ruling that appellants were not negligent because, based on the principle of res ipsa loquitur, the trial court should have inferred negligence from the circumstances. We disagree. We have inferred negligence under this doctrine “[w]hen the cause of an injury is (1) known, (2) in the defendant’s control, and (3) unlikely to do harm unless the person in control is negligent....” Crump v. Browning, 110 A.2d 695, 696 (D.C.1955). Appellees concede in their brief that the flood originated from a toilet in Apartment 502. Considering this fact and the trial court’s conclusion that “[t]here was no evidence to show who was at fault in connection with the pressure on the valve which apparently caused the flood,” we find no basis to conclude as a matter of law that the instrumentality that caused the damage in these cases was in appellants’ control.

4 . The trial judge used this phrase in describing the opinion, upon which he relied, of one of his colleagues.

5 . We note that more than de minimis violations of the Housing Regulations are required to establish breach of the implied warranty of habitability. The Javins court noted that “one or two minor violations standing alone which do not affect habitability are de minimis and would not entitle the tenant to a reduction in rent.” 138 U.S.App.D.C. at 380 n. 63, 428 F.2d at 1082 n. 63. This principle would apply to claims for damages based on breach of the implied warranty of habitability.

6 .Section 2902.1(b) of the Housing Regulations provides for the imposition of sanctions against a landlord if code violations arise after the inception of a tenancy which

have not resulted from the intentional act or negligence of the tenant or his invitees, and which violations are not corrected within the time allowed therefor under a notice issued pursuant to these Regulations, or, if such notice has not been issued, within a reasonable time after the owner has knowledge or reasonably should have knowledge of such violations ....

7 . Appellees have not abandoned their negligence theory, however. We reject the notion that the injury in these circumstances is one which evokes the doctrine of res ipsa loquitur. See note 3 infra.

8 . The notice need not take the form of an official notice from municipal authorities. See Javins, supra, 138 U.S.App.D.C. at 380 n. 62, 428 F.2d at 1082 n. 62.

9 . In Berman v. Watergate West, Inc., supra, we discussed the use of products liability theories to recover damages from cooperative associations for defects in a cooperative unit, noting that “ ‘there is a liability imposed for injury caused by placing a defective product into the stream of commerce in the District of Columbia.’ ’’ Id., 391 A.2d at 1357 (quoting Cottom v. McGuire Funeral Service, Inc., 262 A.2d 807, 808-09 (D.C.1970)) (footnotes omitted). In this vein we observed “[tjhere is reason to believe that a landlord could be held strictly liable for damages caused to a tenant by defective equipment. ... [I]n some circumstances this liability might attach even though the landlord acquired the building subsequent to installation of the equipment.” Id., 391 A.2d at 1359 (citations omitted).

Because the trial court did not find that the plumbing in appellants’ apartment building was defective, we do not rest our decision on this theory. Under appropriate circumstances, however, a landlord could be liable to tenants for damages caused by defective equipment on the ground that, in installing or failing to replace equipment that he knew or should have known to be defective, he placed into the “stream of commerce” an instrumentality likely to cause damage. The Javins court apparently contemplated this result, noting that “violations resulting from inadequate repairs or materials which disintegrate under normal use would not be assignable to the tenant.” 138 U.S.App.D.C. at 380 n. 62, 428 F.2d at 1082 n. 62.

The exculpatory clause in appellees’ leases would be ineffective to bar recovery if appellants were liable under this theory despite the disclaimer of liability for damage caused by defective equipment such . as roofing and plumbing.