(Ky. Ct. App. 1982). Indeed, such a fire occurred in Ms. Valentine's apartment. Accordingly, the Court concludes that defendant's failure to provide heat to Ms. Valentine's apartment constituted a violation of a safety regulation and thus was negligence per se.
Defendant contends that its failure to provide heat in accordance with the housing regulation should not be considered negligence per se, but merely "evidence" of negligence. See Whetzel v. Jess Fisher Management Co., 108 U.S. App. D.C. 385, 282 F.2d 943, 950 (D.C. Cir. 1960) (refusing to apply a per se rule because of the possibility that plaintiff was negligent in remaining on premises -- a possibility eliminated 20 years later by Scoggins, 419 A.2d at 1005 n.6). Even if this were true, the Court would conclude in this case, where the essential facts are not disputed, that defendant's failure to provide heat was conclusive "evidence" of negligence.
Finally, defendant cannot avoid negligence per se by raising any of the traditional "excuses" that involve either a lack of opportunity or lack of fault on the part of the owner. See Perkinson, 821 F.2d at 692 n.9 (citing the list in Restatement (Second) of Torts § 288A (1965)). Even though the VA apparently had a good faith belief that it did not owe a duty to Ms. Valentine, it clearly was aware that it was not providing her with heat. Indeed, a District of Columbia housing inspector notified the VA of the violations and ordered the VA to rectify the situation in January, 1983 -- more than a year before the fire in Ms. Valentine's apartment.
The last issue currently before the Court is whether plaintiff may be barred from recovery by possible contributory negligence. The District of Columbia adopts the "nearly universal rule" that the common-law defense of contributory negligence generally cannot be used to defeat the purpose of a safety regulation. Perkinson, 821 F.2d at 692.
However, the Court also agrees with the conclusion of the D.C. Court of Appeals in Scoggins that the finder of fact may consider excessive contributory negligence in certain situations, especially when there has been obvious negligence by defendant and when the plaintiff unreasonably increases the likelihood of injury by her actions. See 419 A.2d at 1005; Restatement (Second) of Torts § 482(2) (when both plaintiff and defendant are reckless, recovery is barred). A finding that plaintiff in the instant case acted recklessly, knowing as she did that the possibility of fire depended on her actions, should be a bar to recovery. Such a finding would serve the policy of discouraging contributorily reckless behavior and at the same time would not defeat the purpose of the housing regulation, because a landlord would be excused only in the unusual case in which the tenant acted recklessly with regard to the fire hazard.
Finally, the Court rejects plaintiff's argument that contributory negligence cannot be considered because the VA acted in willful or reckless disregard to her safety. See, e.g., Sinai v. Polinger Co., 498 A.2d 520, 525 n.7 (D.C. 1985) (contributory negligence no bar when defendant acts recklessly); Restatement (Second) of Torts § 481, 482, 473 (1965) (similar standards). This doctrine, like the doctrine of punitive damages, focuses on the state of mind of the tortfeasor, and provides an added disincentive to reckless or willful behavior. In the instant case, however, although the VA intended to refuse heat to Ms. Valentine's apartment, it apparently did so in a "good faith" belief that it had no duty to provide such heat. In sum, the Court concludes that barring the defense of contributory negligence in this case because of the VA's "willful" refusal to provide heat is unjustified and would not serve public policy.
A final reason to permit an inquiry into contributory negligence is the type of the hazard involved in this case -- fire -- and the relative position of the parties to prevent the fire. Refusing to consider extreme contributory negligence in an apartment fire case would remove an additional and crucial incentive to protect against fire, a catastrophe that often affects persons other than the resident. Including the additional factor of extreme contributory negligence should ensure that residents act with due caution to others, as well as to themselves.
Accordingly, it is
ORDERED that defendant's motion for summary judgment is DENIED; it is further
ORDERED that plaintiff's motion for summary judgment is GRANTED to the extent that defendant is found to have owed a duty to plaintiff, to have been negligent, and that this negligence was the proximate cause of plaintiff's injury. The question of the possibility of reckless behavior on the part of the plaintiff remains a factor in the case. Defendant has the burden of proving reckless behavior on the part of the plaintiff. Plaintiff has the burden of proving the extent of damages.
The Court will contact counsel to set pre-trial and trial dates for this case.