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."
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.
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.
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.
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.
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.
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.
Thereafter, in Hecht Co. v. McLaughlin, 1954, 93 U.S.App.D.C. 382, 214 F.2d 212,
Our holding was thus, in effect, although not in terms, that a jury might well find the defendant's violation "justifiable" or "excused." See 2 Harper & James, Torts 1007-11 (1958).
A review of these cases makes it clear that in this jurisdiction the rather rigid doctrine of negligence per se has been tempered by important limitations. Our law is clearly moving in the direction of leaving more and more of the question of negligence as derived from statutory standards for the jury to consider.
II. The Instant Case
Turning to the instant case, we must determine the authority of the District of Columbia Housing Regulations and their effect upon the landlord's duty of care toward his tenants. The Housing Regulations were established and authorized by an order of the Commissioners of the District, dated August 11, 1955. They are arranged in eight chapters. Chapter 1 contains uniform definitions. Chapter 2 is the "Housing Code of the District of Columbia." It applies "to every premises or part thereof, occupied, used or held out for use as a place of abode for human beings," and lays down minimum standards of repair, sanitation and occupancy.
The D.C.Code authorizes the Commissioners to promulgate licensing regulations for dwellings containing more than two families, or rooming houses accommodating four or more persons.
Turning now to the Housing Regulations themselves, § 2101 declares:
For each violation of these standards the regulations provide a maximum penalty of a $300 fine or ten days imprisonment. Housing Regulations § 2104. See D.C. Code, §§ 1-224a, 47-2347 (1951).
Upon whom are the duties specified by the regulations imposed? Some are upon the landlord alone. Under § 2304, "No persons shall rent or offer to rent any habitation, or the furnishings thereof, unless such habitation and its furnishings are in a clean, safe and sanitary condition, in repair, and free from rodents or vermin." At the very least, this imposes an obligation upon the landlord to put the premises in safe condition prior to their rental. See Tvedt v. Wheeler, 1897, 70 Minn. 161, 72 N.W. 1062, 1063.
The regulations also impose other obligations which are extended to both the landlord and tenant in order to achieve their broad purposes. Section 2301 provides that "No owner, licensee, or tenant shall occupy or permit the occupancy of any habitation in violation of these regulations." Section 2501 directs, inter alia, that:
And more specifically § 2504 requires:
Thus it appears that § 2301 imposes upon the appellee a duty of care toward its tenants. This duty can be satisfied either by making the necessary repairs or by terminating use of the premises as a place of human habitation. Breach of that duty is, according to the principles which we have discussed, at least evidence of negligence.
But § 2301 also creates a duty of care which the appellant owes to herself. Breach of this duty is likewise at least evidence of contributory negligence. The question then is, does her contributory negligence so clearly appear from the face of the complaint that she is not entitled to go to trial? We think not.
In the first place, even if she were contributorily negligent per se, there would remain for the jury the question of proximate cause. Richardson v. Gregory, No. 15576, 108 U.S.App.D.C. 263, 281 F.2d 626. Second, the pleadings and affidavits which constitute the present record do not provide an adequate basis for determining whether the plaintiff-appellant was contributorily negligent as a matter of law by occupying non-conforming premises.
It is possible that facts may be developed at trial which would warrant a charge of negligence or contributory negligence as a matter of law. But we think that these are questions generally for the jury to resolve upon consideration of all the circumstances bearing on negligence and contributory negligence — including but by no means limited to the regulatory violation, reasonable efforts if any to comply with the regulations, and circumstances excusing their violation. Hecht Co. v. McLaughlin, 1954, 93 U.S. App.D.C. 382, 214 F.2d 212.
For example, recovery would be barred if the jury finds that in the total circumstance of the case the tenant unreasonably exposed herself to danger by failing to vacate the premises or to keep them in repair. Some of the more obviously relevant circumstances would include the
Appellee contends, however, that even if the jury must weigh the duty imposed by the Housing Regulations upon the lessee, summary judgment was nonetheless appropriate because there are uncontradicted affidavits in the record showing that appellee had no notice of the defect in the ceiling. We think actual knowledge is not required for liability; it is enough if, in the exercise of reasonable care, appellee should have known that the condition of the ceiling violated the standards of the Housing Code. Prosser, Torts 6 (1955).
We cannot say that upon a trial a jury could not reasonably find that appellee should have known of the condition of the ceiling. The bathroom ceiling, located just off the bedroom in appellant's apartment, had fallen and been repaired not long before appellant took possession. On New Year's Eve of 1956, just two months before appellant moved in, the livingroom ceiling of the adjoining apartment also fell. On April 1, 1956, appellant noticed a leak in her bedroom ceiling, and reported it to the janitor who was able to stop the leak by adjusting the radiator in the apartment above. But there is no evidence that he then inspected appellant's ceiling to determine if it had been weakened. Just before appellant moved in, appellee hired a contractor to inspect and repair the plaster in appellant's apartment. The contractor's affidavit, executed three years after the event, stated that he "carefully inspected and examined the entire apartment" and found "the plaster in the ceiling of the bedroom * * * in good sound condition." Appellant filed no counter affidavits. But in the circumstances of this case, such failure does not "compel acceptance as true of fact alleged in the movant's affidavits" for the purpose of summary judgment. Cellini v. Moss, 1956, 98 U.S.App.D.C. 114, 116, 232 F.2d 371, 373, quoting Subin v. Goldsmith, 2 Cir., 1955, 224 F.2d 753, 759. In view of the fact that the ceiling fell only four months after the alleged inspection, the jury might reasonably find that the inspection was negligently performed. Cf. Washington Loan & Trust Co. v. Hickey, 1943, 78 U.S.App. D.C. 59, 137 F.2d 677.
It follows from all that we have said that the District Court erred in granting summary judgment on the first count of appellants' amended complaint. We therefore reverse the judgment as to that count and remand with directions to proceed to trial. As to the other counts, we affirm since appellants make no point on appeal with respect to them.
WILBUR K. MILLER, Circuit Judge, dissents.
For a discussion of the effect of statutes requiring the landlord to repair in cases where a lease places the duty of repair squarely upon the tenant, see Feuerstein & Shestack, Landlord and Tenant — The Statutory Duty to Repair, 45 Ill.L.Rev. 205, 220 (1950). Cf. Michaels v. Brookchester, Inc., 1958, 26 N.J. 379, 140 A.2d 199, 204.
Contra: Chambers v. Lowe, 1933, 117 Conn. 624, 169 A. 912, 913 (Legislature did not intend that statute providing that tenements "shall be kept in good repair" should render owner liable for injuries occurring in parts of building not used in common); Johnson v. Carter, 1934, 218 Iowa 587, 255 N.W. 864, 93 A.L.R. 774 (Same); Garland v. Stetson, 1935, 292 Mass. 95, 197 N.E. 679 (Same); Corey v. Losse, Mo.1937, 297 S.W. 32 (Ordinance providing that owner or lessee shall keep tenement in good repair could not constitutionally impose tort liability upon owner).
See generally, Feuerstein & Shestack, Landlord and Tenant — The Statutory Duty to Repair, 45 Ill.L.Rev. 205 (1950); Annotation, 17 A.L.R.2d 704 (1951).
The subchapters or "articles" thereof deal with the city's right of entry and penalties for noncompliance (article 210); minimum standards of natural light and ventilation, and the height of habitable rooms (article 220); minimum "standards of use and occupancy" to prevent overcrowding and unsanitary conditions (article 230); necessary hot water, plumbing, electrical, heating, sewage and other "facilities and services" (article 240); general "maintenance and repair" of the entire structure, including foundations, walls (both interior and exterior), ceilings, floors, windows, stairways and porches (article 250); "cleanliness and sanitation" in and around residential premises (article 260); and administrative enforcement procedures (article 270).
In briefs submitted in response to an inquiry from the court, however, the Corporation Counsel of the District of Columbia, along with the parties, found authority for such application in statutes authorizing the District Commissioners to:
"* * * make and enforce all such reasonable and usual police regulations * * * as they may deem necessary for the protection of lives, limbs, health, comfort and quiet of all persons and the protection of all property within the District of Columbia," D.C.Code, § 1-226 (1951);
"* * * make and enforce such building regulations for the said District as they may deem advisable." D.C.Code, § 1-228 (1951).
See also Hill v. Raymond, 1935, 65 App.D.C. 144, 81 F.2d 278, construing the building regulations promulgated under D.C.Code § 1-228 to require owners of multi-story buildings to "reconstruct" non-conforming stairways.