The opinion of the court was delivered by: GASCH
Defendant's position is two-pronged. First, it asserts that the destruction of the premises was not caused by "fire" within the meaning of the lease agreement's provisions respecting reconstruction. Rather, defendant argues the cause of the destruction was the April 1968 riots. Plaintiff contends that the possibility of fire resulting from riot was contemplated in the lease and in fact defendant included such protection by means of "extended coverage" insurance. The Court agrees that the word "fire" in the lease contemplated loss reulting from burning, regardless of how the fire was started (except, of course, deliberate arson on the part of the parties to the agreement).
Second, defendant pleads that it should be relieved of the contractual responsibility for reconstructing on the grounds of impossibility of performance. Defendant argues it will be impossible to acquire further insurance protection,
and accordingly, it would not be feasible to rebuild in the present atmosphere of danger and tension. Defendant cites public statements of certain members of the black community to the effect that any white businessmen who attempt to rebuild their businesses in this area will see them burned again.
The far-reaching consequences of accepting defendant's position are at once apparent. To hold that the threat of law violations, even under extreme circumstances such as these, renders performance of a contract impossible would with one broad sweep vitiate most agreements respecting commercial operations in the inner city. We still live in a system where man's affairs are governed by law, and lawfully constituted authorities are still in power. There may be risks in defendant's continued business operations, but there is no preclusion or impossibility of performance in the legal sense. Transatlantic Financing Corporation v. United States, 124 U.S.App.D.C. 183, 186, 363 F.2d 312 (1966).
Defendant's third party complaint against the District of Columbia derives from its claim that the failure of District officials to protect its property from destruction renders the municipality liable under the lease agreement. The District of Columbia has moved to dismiss, and the motion must be granted. It is clear that some erosion of the doctrine of municipal immunity has taken place. In choosing to handle the riot situation in the manner they did, however, municipal officials were exercising discretion
in the performance of a governmental function.
In this instance, the broad policy decision which led to the deployment of groups of policemen in an effort to maintain law and order throughout the area and the instructions issued to them are discretionary and not ministerial. They do not give rise to civil liability, even if as a consequence thereof, plaintiff's property sustained damage through negligence.