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10/15/70 John Joseph Clarke, Jr., A v. Dagmar O'connor


October 15, 1970




Leventhal, Robb, and Wilkey, Circuit Judges.


John Joseph CLARKE, Jr., a minor, by Muriel Clarke, his



Appellant-plaintiff, a seven year old boy, *fn1 was injured when his face came in contact with the blades of a fan installed in a window of a house owned by defendant. At the time of his injury he was on the premises as the guest of Miss Gail Davis, one of several tenants of the house under a lease from appellee-defendant. Appellant brought this action for personal injuries, alleging negligence on the part of appellee. At the close of appellant's case the trial court granted a directed verdict for the appellee landlord on the theory that in the circumstances presented no duty was owed by the defendant to the plaintiff, the breach of which would amount to negligent conduct.

In reviewing the correctness of this determination, we are mindful that the concept of "duty" known to the law of torts is a rather artificial one, and that in deciding whether a duty existed, the real question to be answered is whether the law should safeguard the plaintiff from the consequences of the defendant's conduct. As Dean Prosser has put it,

It should be recognized that "duty" is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection. . . .

and that as our ideas of human relations change, the law as to duties [changes] with them. . . . Changing social conditions lead constantly to the recognition of new duties. *fn2

After careful review of the record in the instant case we have concluded that the trial court erred in deciding that defendant owed no duty to the plaintiff, thereby withdrawing the case from the jury. In order to explicate the basis for this conclusion it is necessary to recite the facts in some detail. I. Pertinent Facts

Appellee O'Connor is the owner of a three-bedroom row house located at 2703 Woodley Place, N.W. In the summer of 1965 these premises were occupied by a group of English girls under a lease from appellee. During that summer these girls requested Mrs. O'Connor to provide some means of cooling the house. Mrs. O'Connor responded by purchasing two air conditioners and two window fans. Her testimony indicates that she had definite ideas as to where and how these apparati were to be used: she expected the air conditioners to be installed in the bedrooms; one fan was intended to cool the kitchen; the other, the living room-dining room area. The air conditioners were installed by representatives of the store from which Mrs. O'Connor had purchased them. The record is unclear as to who actually installed the fans. Mrs. O'Connor testified *fn3 that she thought the fan for the living room, the one involved in the instant suit, was installed by the girls' boyfriends. In any event, the fan was installed in the window of the wall separating the attached front porch from the living room inside. Mrs. O'Connor saw the fan after it was installed. The fan was subsequently removed, presumably for the winter months, and reinstalled the following summer of 1966.

At the time of the accident, the fan was installed in the center window frame in the wall between the porch and the living room. The fan had expandable sides which fitted against the frame of the window, the bottom of the fan rested on the casement, and the window sash pulled down on top of the fan to hold it in place. Although the fan was designed for use in a window, it did not have any built-in grill or other protection to cover the blades on the exterior side. The fan was installed in such a manner that the exterior side faced on the front porch approximately four feet off the porch floor. Appellee testified that she expected an aluminum window screen to fit into the window on the outside of the fan. This window screen was a light weight half-screen which fitted on tracks on the side and was easily removable. *fn4 On the day of the accident the screen was not in place. Defendant testified that her maintenance man, Mr. Wollridge, may have been the person who reinstalled the fan in the window in the summer of 1966, the year after it was first purchased, and the summer in which the accident occurred.

By August 1966 the English girls were long departed and Mrs. O'Connor had leased the premises to a group of five American girls for a one year term beginning September, 1965. These tenants were described as "all working girls. . . . around [the ages of] 24 and 25." Although each of the girls originally signed the lease, Mrs. O'Connor testified that the tenancy arrangements were quite flexible, and that "when a girl married or transferred, she would find a replacement. The replacement had also to sign the lease for the rest of the tenancy. . . . Sometimes a girl would leave and pay her rent for the current month and then they would give the girls in the house an opportunity to use some selection in a choice of a tenant."

Appellee O'Connor also testified that she considered herself responsible for all of the regular maintenance at the Woodley Place premises and that she had a regular electrician, a regular plumber, and a regular maintenance man whom she engaged to effect such maintenance. The tenants were instructed to call these repairmen directly if any maintenance problems arose, and appellee then paid the bills for whatever services were rendered.

On 10 August 1966 the seven year old plaintiff, John J. Clarke, Jr., and two other neighborhood children had entered the premises at the invitation of Gail Davis, one of the group of girls occupying the house, for some cookies to complement the ice cream the children had just purchased. While on the front porch of the house, John peered or called through the fan to one of his young friends inside in the living room, and in the process his face came in contact with the whirling blades, causing severe and permanent injuries. John's mother testified that immediately after the accident Gail Davis rushed into the Clarke home a few doors away and tearfully stated, "Oh, I am sorry. What happened, [sic] I told my landlord, my cat almost got his tail caught in the fan." II. The Landlord's Duty -- Existence and Three Sources

At trial appellant relied on both the common law and the District of Columbia Housing Code *fn5 as establishing the landlord's duty to use reasonable care to maintain the premises in a safe condition. The trial court, however, held that the D.C. Housing Code could not be relied upon as establishing a duty in these particular circumstances and that the ambit of appellee's common law duty was limited to the question of whether the appellee retained sufficient control over the premises to obligate her to take steps to ensure that the window screen was in place in front of the fan at all times. Finding that, inasmuch as the tenants were in possession and control of the entire house, including the window screen and fan, it would be an unreasonable burden to require the landlord constantly to check to see that the screen had not been removed, the District Court ruled that as a matter of law no duty rested upon appellee with respect to the fan.

We think that under the circumstances here such a narrow view of the scope of a landlord's duty is unwarranted. Rather, we find that on the facts of this case, there are at least three bases for establishing that the landlord had a duty to use reasonable care with respect to providing, installing, and maintaining the fan. We do not here find that the landlord breached such a duty; that question is for the jury. We merely hold that the jury should have been permitted to decide the issue of the landlord's asserted negligence.

A. Duty to Provide Originally Safe Equipment

In the first place, it is apparent that aside from the somewhat unusual nature of the tenancy here involved, the appellee, when she supplied the fan, had a duty to provide a piece of equipment that was reasonably safe for its intended use. *fn6 Having purchased a fan that had no protective device covering the blades on the side intended to face the exterior of the window, the appellee proceeded to direct its installation in a window located between two habitable areas of the same building. Furthermore, on the record here, the jury could have concluded that in the year in question, 1966, appellee's agent actually installed the fan in its location at the time of the accident. *fn7 The question thus becomes whether the precautions taken, namely, the installation of a lightweight, easily removable window screen in front of the exposed fan blades amounted to reasonable care under the circumstances. This question should have been submitted to the jury.

B. Duty of Maintenance in a Safe Condition Under the Housing Code

Appellee argues that under the law of this jurisdiction, "absent a duty created by contract or statute, a landlord is not responsible for injuries resulting from a defect which develops during the term of a lease. . . ." *fn8 Such was the rule laid down by this court in Bowles v. Mahoney. *fn9 As we have recently noted, however, Bowles has been "effectively overruled, on the basis of the enactment of the housing code," *fn10 by Whetzel v. Jess Fisher Management Co.,11 and Kanelos v. Kettler.12

This brings us to the applicability of the Housing Code as establishing a duty on the landlord in the circumstances here. The trial judge held that the Code imposed no duty on appellee with respect to the condition of the fan: First, because the Code sections pertaining to the maintenance of mechanical ventilating equipment were not intended to apply to such an item as a movable window fan;13 and, second, because the section of the Code placing a duty on the landlord to provide window screens for leased premises does not require the landlord to ensure that the screens are in place at all times, in view of the fact that the tenant's presence on the property places him in a better position to perform this function.14 We find it unnecessary to pass on the correctness of these specific determinations, however, because we are of the view that another section of the Housing Code imposed a duty on appellee which was sufficient to require submission of the case to the jury. Section 2501 of the Housing Code provides:

General Maintenance and Repair : Every building housing one or more habitations shall be maintained and kept in repair so as to provide decent living accommodations for the occupants. This part of this 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 building or neighborhood healthy and safe.

As we stated in Kanelos v. Kettler (supra) this section "'impose[s] obligations which are extended to both the landlord and the tenant' . . . and tax[es] appellee with 'duty of care toward [his] tenants.'"15 And even more recently, in Javins v. First National Realty Corp.16 referring to ยง 2501, we said:

By its terms, this section applies to maintenance and repair during the lease term . . .. We think it untenable to find that this section has no effect . . . after . . . [the lease] has been signed. To the contrary, by signing the lease the landlord has undertaken a continuing obligation to the tenant to maintain the premises in accordance with all applicable law.17

As Kanelos indicates, section 2501 imposes a duty jointly on landlords and tenants. The fact that in the instant case the tenants may themselves have breached their duty under this section is no ground for relieving the landlord from responsibility to third parties, if in fact the landlord failed to exercise reasonable care as well.18 For the purposes of tort liability section 2501's intent "to include repairs and maintenance designed to make a premises or neighborhood healthy and safe" must be read as imposing a duty on those affected to use reasonable care to provide such repairs and maintenance. The standard of care thus established is the same as in a common law negligence action, i.e., reasonable care under the circumstances.19

In the instant case there was evidence from which the jury could have found that the window screen was inadequate from the beginning to serve as a protective device or that, as appellee knew, it had been removed or was easily capable of being removed. We think the jury should have been permitted to decide whether appellee had sufficient notice, either from the beginning or at such time as the inadequacy or removal of the window screen should have been observed, of the alleged deficiency in the protection of persons from moving fan blades,20 and, if so, whether the appellee's failure to take steps to provide protection of a more permanent nature was unreasonable under the circumstances.

C. Duty of Maintenance in a Safe Condition Under Common Law

Finally, we turn to the question of appellee's duty to maintain the premises under common law, apart from the requirements of the Housing Code and apart from any duty to use reasonable care to supply a safe appliance initially. Although on the facts presented this is an admittedly close question, we have concluded that as a matter of common law, the duty is placed on the appellee here because of the unusual circumstances surrounding the tenancy involved. We recognize, of course, that the general common law rule, both in this and in other jurisdictions, is that absent a duty assumed by contract, a landlord is liable for injuries resulting from defects on the leased premises only if he has retained a substantial degree of control over that portion of the premises where the defect occurs.21 This rule is normally invoked to impose a duty on a landlord to use reasonable care to provide for the safety of common areas in buildings containing separate dwellings of multiple tenants.22 We have recently recognized in another context, however, that the presently prevailing common law rule is in many respects an archaic vestige of a time when the main value of a leasehold lay in the agrarian potential of the land. In Javins v. First National Realty Corp. (supra) this court, in holding that a tenant's liability for rent under a lease contract is contingent upon the landlord's fulfilling an implied warranty of habitability, recounted that:

The assumption of the landlord-tenant law, derived from feudal property law, that a lease primarily conveyed to the tenant an interest in land may have been reasonable in a rural, agrarian society; it may continue to be reasonable in some leases involving farming or commercial land. In these cases, the value of the lease to the tenant is the land itself. [But] . . . when American city dwellers, both rich and poor seek "shelter" today, they seek a well known package of goods and services -- a package which includes not merely walls and ceilings, but also adequate heat, light, and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance. . . . The common law rule absolving the lessor of all obligation to repair originated in the early middle ages. Such a rule was perhaps well suited to an agrarian economy; the land was more important than whatever small living structure was included in the leasehold, and the tenant farmer was fully capable of making repairs himself. These historical facts were the basis on which the common law constructed its rule; they also provided the necessary prerequisites for its application.23

Our court in Javins thus recognized that the assumptions on which the common law no repair rule was based no longer have vitality in the urban dwelling context. For reasons similar to those we found persuasive in Javins in adopting a warranty of habitability theory, we think that in a tort context the rule providing that the landlord is subject to a duty to repair only insofar as he retains "control" of the property should not apply to the type of rental arrangement demonstrated by the instant case.

As Javins found to be the case for the modern apartment dweller, each tenant here "more closely resemble[d] the guest in an inn than [she] resembled an agrarian tenant."24 Here, appellee leased her premises to a fluctuating group of young girls, requiring each to sign the lease, yet expressly contemplating that the composition of the tenant group would change sporadically.25 Rather than leasing the house to one individual or family, appellee, in effect, leased to a group of strangers contemplated by themselves and by the appellee to use the premises as "roommates", each without formal ties or responsibilities to the others. Additionally, appellee held herself out as assuming responsibility for regular maintenance of the house, instructing the tenants to call designated repairmen at appellee's expense. In these circumstances it is not surprising that no one of the girls assumed the responsibility for seeing that the screen remained in place, but rather relied on appellee to use reasonable care to maintain the premises for them.26

Because of the type of tenancy arrangement she chose for her premises, and because of the reliance which she induced in her tenants by her maintenance arrangements, appellee should not now be heard to say that she was under no duty to provide for the safety of the premises, at least with respect to injuries to third parties.27 In effect the entire house, with the possible exceptions of the bedrooms, was an area reserved by the landlord for the common use of separate tenants.28 That these tenants may have been negligent themselves in failing to take proper precautions and in relying on the landlord to assure the safe condition of the window fan should not, in these circumstances, exculpate appellee from all responsibility. Rather, the jury should have been allowed to decide whether, in light of all the facts, including those which the appellee might have presented, a failure to use reasonable care existed.

Reversed and remanded for a new trial.


Reversed and Remanded.

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