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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 ...

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