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January 25, 1956

Betty Lorraine CAPORALETTI et al., Plaintiffs,

The opinion of the court was delivered by: HOLTZOFF

The question presented in this case is whether a person who is engaged in the business of building and selling dwelling houses is liable to the purchaser of one of the homes, for personal injuries sustained as a result of defective construction caused by the builder's negligence. The question is one of novel impression in this jurisdiction, as it appears never to have been determined either by the Supreme Court or by the United States Court of Appeals for the District of Columbia Circuit. The matter is before this court on the defendant's motion for judgment notwithstanding the verdict, after a trial on the merits resulting in a verdict in favor of the plaintiffs.

Briefly the salient facts are as follows. The defendant was engaged in the building of dwelling houses and was developing a suburban area in which it was constructing several hundred homes. One of the dwellings was sold to the plaintiffs, who are husband and wife. They moved into the house as soon as it was finished. The house was provided with a wooden back stairway located on the outside. The jury was justified in finding from the evidence that because of the defendant's negligence, the bottom of the stairway was defectively and inadequately fastened to the concrete platform on which it rested, and that as a result, when the platform settled, the wooden stairway was left hanging loose and swinging in the air. The female plaintiff, not realizing what had happened, tried to walk down the back stairs and fell, sustaining serious injuries. This occurrence took place within three or four months after the plaintiffs had purchased and moved into the house.

 The jury rendered a verdict in favor of both plaintiffs, for the damages so sustained. The defendant now moves for judgment notwithstanding the verdict, or in the alternative for a new trial, contending that as a matter of law there is no liability on the basis of the foregoing facts.

 At common law the grantor of real property was not liable for damages caused by any defect in the construction of the building after he had parted with title to the property. The rule of caveat emptor was applicable, Palmore v. Morris, 182 Pa. 82, 89, 37 A. 995; Smith v. Tucker, 151 Tenn. 347, 360, 270 S.W. 66, 41 A.L.R. 830; Bottomley v. Bannister, L.R. (1932) 1 K.B. 458, 468. The question presented here is a narrower one, however, Specifically, it is whether this general rule should exempt from liability a builder who is guilty of negligence in the construction of a house sold by him, if the negligence results in personal injuries to the purchaser or any other invitee.

 Conditions have radically changed since the origin of the general commonlaw rule. Homes are being constructed on a large scale by persons engaged in the building business for the purpose of selling them to individual owners. The ordinary purchaser is not in a position to discover a latent defect by inspection, no matter how thorough his scrutiny may be, because usually he lacks sufficient familiarity with the complexities of building construction and the intricacies of applicable regulations. He should be able to rely on the skill of the builder who sells the house to him. Otherwise he would be at the vendor's mercy. The realities of modern life necessarily lead to the conclusion that the builder should be liable for injuries caused by his negligence under such circumstances, either to the purchaser or to an invitee. Any other result would be unjust and intolerable. It would encourage unscrupulous builders who may be tempted to reduce their costs and increase their profits by palming off defective and inferior construction on their customers.

 It is the glory of the common law that it is not a rigid, immutable code. On the contrary, it is a vital, living force that endows with the breath of life a body of practical principles governing human rights and duties. These rules are subject to gradual modification and continuous adjustment to changing social and economic conditions are shifting needs of society. This characteristic is the life blood of the common law. It still exists in its pristine vigor. The spark of life is still burning bright. It has not been extinguished. The process of growth has not ceased. To be sure modifications must needs take place slowly, by degrees, one short step at a time, more like a leisurely current that may almost imperceptibly and gradually alter its banks by erosion rather than as a rapidly flowing torrent that suddenly changes its channel. So, too, the advances may come only after changes in conditions become crystallized. In other words, adaptation and modification of the rules of the common law must follow, and may not precede, altering needs of the community. *fn1"

 It has been aptly said that, 'Modification implies growth. It is the life of the law.' *fn2" As was remarked by Cardozo, *fn3"

 'A rule which in its origin was the creation of the courts themselves, and was supposed in the making to express the mores of the day, may be abrogated by courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience.' $ It is not necessary to discuss this matter at greater length. It is important to observe, however, that the Courts of the District of Columbia have continuously recognized the vitality and vigor of this principle, and have applied it when occasion arose. Thus, as far back as 1893, Mr. Justice Shepard, one of the original members of the Court of Appeals of the District of Columbia, in Utermehle v. McGreal, 1 App.D.C. 359, 368-369, summarized this doctrine in the following manner:

 'The chief attribute of the common law has ever been its flexibility, its power of expansion and adaptation to the changing needs are circumstances of a complex civilization, advancing under the influences of learning, discovery and invention. While sudden and radical changes in its rules should only be wrought by legislative power and not by the courts, yet these should not adhere to the application of the principles made in other days under circumstances and surroundings which may have completely changed, bearing the reason of the old rule with them.'

 In that case the court by judicial decision partially modified the rule of the common law that had entirely relieved infants of liability for their contracts after coming of age.

 In recent years the Court of Appeals for this Circuit abrogated the commonlaw rule which barred contribution between joint tort-feasors. *fn4" Another illustration is the extension of the commonlaw rule which allowed a husband to recover damages for loss of consortium in case his spouse sustained personal injuries as the result of the negligence of another. A reciprocal right is now accorded to the wife, which did not exist at common law, to recover for loss of consortium in case of injuries sustained by her husband. *fn5" Similar examples may be multiplied, but the foregoing are sufficient to indicate the attitude and trend of this jurisdiction.

 Perhaps the first departure from the strict common-law rule is found in Pennsylvania, where in Palmore v. Morris, 182 Pa. 82, 90, 37 A. 995, 999, the court, while applying the general doctrine exempting the grantor from liability, added the following limitation by way of dictum: --

 'And, while laying down this rule in this case, we do not intend to be understood as declaring there can be no exception to it. There may be a case where the grantor conceals from the grantee a defect in a structure known to him alone, and not discoverable by careful inspection, ...

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