*2 STONE, Before KIMBROUGH Circuit Judge, (sitting retired by designation), and BAZELON, WILBUR K. MILLER and Judges. Circuit MILLER, WILBUR K. Judge. Circuit appellant, Bowles, Sarah Edna is the parcel owner of a ground at H Street, W., N. in the District of Columbia. The lot higher is some feet than the portion level of the Street, traveled of H and the residence thereon extends to the property front line. In front of the house publicly “parking”1 owned rises some- abruptly what from the front sidewalk so flight steps required that a of nine reach the front door from the sidewalk —a distance at street level of about 20 feet. parking Thus the in front of the residence high sloping is a rather bank of earth between the line, and the property sidewalk passerby seems to the front yard Technically, residence how- ever, parking part is a of the street by the owned United States and controlled District of Columbia. 1. This portion word used describe the line. street which lies between the side- walk and the pub- H erected brick dwelling side, On one knowledge licly with the owned the ad- house attached to the Street is of Columbia the and consent of the line of that side joining Along lot. *3 * * * wide feet property passageway. is a enhancement the front sidewalk the extends from which premises 2320 H and benefit of value the house through parking and under the defendant, Street, by N. W. owned pas- opening. This through a tunnel-like Sarah Edna Bowles. side- from the sageway, gives which access defend- result of the “That as the premises is on the the walk to the rear keep failure to negligence ant’s2 the sidewalk From of H Street. level 30, repair, on March said wall in protected from house, passageway the
the
n fell,
collapsed and
the said wall
of the
remainder
sloping
the
bank
Ralph
plaintiff,
Ma-
crumbled
the
retaining "wall which
parking by
brick
a
honey,
the
plaintiff
using
was
while
the bank until
slope rises with the
abutting
adjoining side-
aforesaid
house,
reaches,
height of about
a
at the
proper purpose."
walk for a lawful and
the re-
erection of
permit for
A
feet.
plaintiff’s theory
to be
is seen
Thus the
parking was issued
taining
in the
wall
having
Bowles,
constructed
this: Mrs.
February
on
District
Columbia
of her
the benefit
wall in the
presumed that the then
It
duty to maintain
property, was under a
property
2320 H Street
at
owner of the
condition;
violated her
a
she
in
safe
that date.
wall soon after
constructed
keep
in
failing
the wall
negligently
15, 1936, B.
Saul Com-
F.
On December
repair;
negligence
a
of her
result
apparently
renting agent for
pany,
invitee;
collapsed
tenant’s
and injured
the entire
owner,
Bowles, leased
Mrs.
damages to the
liable in
she is therefore
Luke
H Street to one
premises at 2320
Columbia, says
District
invitee. The
lease,
is in
copy of which
a
Gaither.
complaint, permitted the structure to be
obligate
record,
the landlord
not
does
erected,
keep
negligently
failed
repairs.
no
im-
There is
statute
make
repair.
in
landlord. Gaither’s
posing that
on a
trial
Armstrong testified at the
Mrs.
had
sister,
Armstrong, who
Helen
Mrs.
no-
she had
years before the accident
two
years
some
before the
in the house
lived
wall which
a
ticed
crack
lease,
continued thereafter
date of
explosion which had
to an
attributed
she
On March
occupy it with her brother.
Al-
nearby
“sewer.”
electric
occurred
son, Ralph
Ma-
Armstrong’s
Mrs.
the condition
regard
though she
years old and
honey,
then
who
who
was
Saul Com-
she informed B. F.
dangerous,
with
mothef
lived at 2320 H Street
cracked and was
pany that the wall had
uncle,
play
passageway
at
was
repaired.
notice
No
it would not
told
perhaps
point
half
at a
above described
given to the
in the wall was
of the crack
way
line and
between
Armstrong
Mrs.
of Columbia.
District
sidewalk,
was
front
therefore
B. F. Saul
previous occasions
that on
said
'
portion
A
parking.
area known as the
repairs to be
minor
Company had caused
collapsed
retaining wall
and struck
other-
premises. There was no
to the
made
injuries.
him,
serious
inflicting
tending
what caused
to show
evidence
Mrs. Arm-
to fall.
friend,
portion of the wall
next
Through his mother as
time
seated at
strong,
at the
was
who
brought
against
tort action
Mrs.
child
house, said
she saw
window
front
Bowles,
property,
the owner of
collapse. Ralph’s
suddenly
aunt
the wall
It
against
District
Columbia.
was
the same effect.
testified to
complaint
Mrs. Bowles
alleged
given
February 12,
deposition
singular
3. In
“defendant’s”
use of the
2. The
be-
time as 6 months
fixed the
typographical
she
probably
error
was a
complaint.
suppose
plaintiff
accident.
fore the
We
charge
both defendants with
intended
negligence.
for a directed
The defendants’ motions
tion
the tenant
those
owed
verdict,
conclusion
the tenant
Cir.,
made
himself.
Kruger,
Fraser v.
plaintiff’s evidence,
were denied. Mrs.
pursuant to the verdict. Both defendants when, gested that the wall was defective complain the District Court’s of failure lease was in made 1936. The first indica to direct a in favor and of verdict the tion of a defective condition was the crack ipsa. on res The District of instruction in wall which Mrs. Armstrong noticed assigns Columbia other related errors. So, in 1946. if the crack a indicated de condition, fective it was one which arose Judge Groner, As to Mrs. Bowles. during the of any term the lease. Absent speaking for in this court Harrison statutory duty, or contract the lessor is Co., Mortgage App.D.C. Inv. responsible injury not resulting an 881, 882, “before the from developed during a defect which premises owner of the can be liable held Kurn, term. Cir., 1938, 95 F. Johnson therein], due a defect there [for 2d perform part must he a failure on his imposes.” Security Savings a We said which law We must & Com Sullivan, 1919, therefore Mrs. mercial App.D. ascertain whether Bowles Bank v. duty maintaining of owed the child the the C. 261 F. 462: “ good repair. wall in * * * It law settled that plaintiff, Ralph Mahoney, The was premises, by lease, where the owner of living in the house at invitation of his parts possession with the entire uncle, tenant, was Mrs. Bowles’ so he who premises, control of the and the ten- using appurtenant passageway was ant, by express provision either of the The tenant’s invitee. rule is that lease or of silence the lease on per duties and liabilities of a landlord to subject, liability that assumes premises by sons on the leased the invita- keeping proper re- portion charge simply 4. That is as follows: circumstances. It means that “Now, nothing explain case the evidence is not or rebut why and, way clear as to fore, fell there- from inference that arises thing you happened, might pos- at its instance in- Court own a which structing you sibly as follows: under those conclude circumstances jury may neg- “The Court instructs the that ligence; have been occasioned plaintiff relies of is, known rule law the facts of the occurrence ipsa loquitur, thing may negligence as res warrant the inference of speaks compels for itself. law It is the that where not that it inference and thing injury you instructed, a causes without fault so but it offers evi- injured person, shown to be un- of a circumstantial dence character of the defendant, negligence der the control of existence where direct evi- injury ordinary lacking is such as in the course dence and that evidence things, weighed by you. does not occur if hav- you the one is to be If find that ing proper care, such control uses it af- a explanation has defendant not offered a reasonable evidence, neg- fords reasonable in the absence to rebut the inference of explanation satisfactory ligence, your some from then verdict must be for the defendant, injury Ralph Mahoney.” plaintiff, arose from want of the defendant’s care owner, keeping the actual not the pair, latter, seen we have repair. As due an accident in case be liable she all. premises, owed him no at allowing the negligence in thereof, get out of any portion or known as Concerning the area n repair.” legal relation the abutter’s was Mrs. Bowles recapitulate: To it, in Allman v. District this court said by fail concealment of fraud or guilty Columbia, 1894, App.D.C. 17: leasing, de disclose, the time ing to * * * some ‘parking’ knowl of which she had in the wall fects intervening twenty be- feet in width repair; she agreed ; had not edge she to. the sidewalk is building tween the control possession and conveyed entire im- street part scheme for appurtenant including the premises, adopted generally provement wall, Luke passageway But city Washington. whilst took Gaither We conclude Gaither. space, free maintenance of this *5 thereto as appurtenances and premises the pub- measure, for the building, is, in a 1936, whatever and assumed they in' were benefit, is not lic and convenience occupying might been in there risk public, can- the general for the use of the duty maintain his It was them. occupied obstructed not be or Bowles, condition. Mrs. good wall use, really private easement of and is liable to therefore, have been would not adjoining the owner.” the injured when wall he had been Gaither a thor- parking is not Since the area 30, 1948. Lawler collapsed on March general use oughfare is not for the and 1933, Co., 62 City Life Insurance Capital not erect- public, retaining the wall was the 438; 391, Fraser v. Kru 68 F.2d App.D.C. but, any ¡publicpurpose, as the serve ed to being the plaintiff, supra. the ger, Since complaint, was plaintiff pleaded in his right,5 in his the stood invitee 2320 premises the for the benefit of built duty him no and is Bowles owed Mrs. retaining street- H The wall and Street. injury. liable for parking were passageway level over the premises. appurtenances to those and Company The that B. Saul fact F. appurtenances They were not and are not prem repairs made caused had be public, general use of the as were for the con obligate Mrs. Bowles to ises Talmadge, involved in Altemus v. those her and did not make to make them tinue 148, 874, 1932, App.D.C. 58 F.2d but repair. Shegda v. Hartford- covenantor and for the use convenience of were 1944, 131 Company, Trust Connecticut ¡reaching and his invitees in tenant 668; Ginsburg Conn. 38 A.2d v. Ja premises. per- No other rear of the leased 918; cobson, 1931, N.E. 276 Mass. any passage- had occasion to son use York, Co., R.W. New & Potter v. O. way. premises The of the entire lease 394, affirmed, App.Div. 253 N.Y.S. appurte- Luke Gaither carried with 261 N.Y. N.E. pri- ¡passway wall nant entire parking. being easement That vate foregoing, In the we have treated true, question whether Mrs. Bowles though as the accident had oc the case made liable for the could be child’s by owned Mrs. curred on the by to be determined the same rules and leased to Gaither. That Bowles govern would had the accident oc- which injured parking in the child was area premises actually by on the owned curred premises proper, regard not on the we her. for the reason that Mrs. Bowles immaterial greater regard no from what been owed Gaither It follows has said that maintaining judge the wall in the than denying trial erred in Mrs. Judge right parents in Harrison Groner v. Mort- her ises ants, ten- Co., 1932, App.D.C. 155, gage Inv. the circumstances are such “ * * * 881, 882; recover, She cannot neither can injured using prem- child] was [the she.” judgment at verdict and thereon, verdict directed entered for a Bowles’ motion judgment and to evidence. enter plaintiff’s favor of both the conclusion defendants. Columbia. District As publicly Reversed control The District had remanded. parking which was servient owned enjoyed private therein easement BAZELON, Judge Circuit (dissenting). author local H The of 2320 owner Street. key court, to the decision of wall re- permitted owner to erect ities lieving both the landlord and the owner expense. As between at his own liability, Columbia1 from District, can lies in its adher- duty ence to the rule at commonlaw that former had the doubt that the “[a]b- any statutory sent or duty, contract maintaining responsible conveyed lessor is not injury repair. re- Mrs. Bowles When Gaither, sulting developed appurtenances defect dur- and its assumed, ing him, term.”2 I think that rule is an
she transferred which has lived on keeping through the wall safe. anachromism primary So, injured stare decisis rather than through alone if Gaither been pragmatic adjustment collapse negli- to his to “the felt of the wall due own necessi- hardly I repair ties of gent it, it would time.” therefore dis- failure [our] the District. presumptive said he could recover from card and cast the burden of *6 This, greater right against liability think, The child had no the landlord. I is had in the than Gaither would have command of realities and mores of judge day. The trial similar circumstances. our peremptorially have should instructed gradually Courts have recognized, at jury return a in favor to verdict of the part, least that position the exalted District of Columbia. which the landlord early held at common unnecessary This conclusion makes law is discordant with the needs of a later
us whether to consider it was the District’s day. early At commonlaw a lessee was re regular inspections of make the garded having merely personal right wall, and whether had constructive notice against the lessor.4 But as a result of sev repairs defect in time to caused eral remedies that were created in the lessee’s prevented which would have the accident. or,5 fav he came regarded to be Nor is material that the court erroneous- rem,6 having rights in and the lease “was ly included in charge jury an in- regarded as a sale of the demised loquitur.6 res ipsa struction on Upon term.”7 thesis, The cases be remanded to the Dis- held that a courts was lease “like the sale trict Court instructions to with set aside the specified personal property to be de- this, In a case such as instruction is opinion, 1. As I understand the court’s only apppropriate when defendant had non-liability District of Columbia’s arises exclusive control where places from the same rule which re Light In the accident occurred. San Juan sponsibility on the tenant himself. Requena, 1912, Co. v. 224 U.S. 2. Majorityopinion, p. 6. Supreme 32 S.Ct. 56 L.Ed. ipsa Court Harkrider, said the doctrine of res is Liability Landlord, Tort of a * “* * thing when which causes (1928). 26 Mich.L.Rev. injury, injured per without fault of the Maitland, History 4. 2Pollack & son, is shown to the exclusive English seq. (2d 1923). 106 et Law ed. defendant, injury control of the ordinary such as in the course of example, ejectment. For writ things having does not occur the one 6. Digby, History An Introduction to the proper care, such control uses it affords Property (4th of Real Law 174-6 ed. evidence, reasonable in the absence 1892). explanation, injury arose from Harkrider, Liability the defendant’s want of care.” Landlord, Tort of a 26 Mich.L.Rev. concept requires nity’s enlightened the same self-interest applied livered”8 that, presumption. in same at least emptor prevailed generally It follows caveat' provision chat- express of all day respect to the sale absence with concept, contrary, property courts a landlord who leases corollary of this tels. As a any obligation should held to a continuing the “destruction or generally held that provide the leased exercise reasonable care depreciation of value [of .to [the] parties pro depreciation oc- which the intended he should premises], other than such vide, lessor, namely, dwelling. en- a safe and habitable by.a was casioned fault of Applying tirely this view to the circumstances of the loss the lessee.” present case, would be the landlord English and the American “[B]oth Ralph liable for the Ma- little away from entirely almost broken law have honey as the For lease tenant’s invitee. rule of caveat ancient emptor/’10 expressly respon make tenant generally. sale of chattels repairs fo'r is no sible doubt that development has been extent this To some dilapidated dwelling12 the owner landlord and governing in the law reflected pre failed exercise reasonable care to example, now “the For tenant relations. collapse vent cracked vendor, obligation under the lessor, like a And wall. since the court’s reason for only] con lessee disclose [not excusing the District of Columbia from existing conditions when dangerous' cealed liability and not the land transferred, possession of which he has lord, repair, had the that reason ” * * * any “in knowledge but also longer be valid. possession] which would formation [in suggested One writer has that the rule suspect that the lead reasonable man when, * * law was at common evolved at a time with re But exists danger part, most leased consisted responsibility for spect landlord’s to the. of farm and the dwellings lands thereon premises during the the condition *7 only But, were a minor consideration. he lease, re courts have failed to term said, result, As a development. flect lags merely still be in this “One has consider law to at the common present general that in one time modern notion the number of crowded hind the presumed cities, article is to warrant tenement houses in who sells an which are in purpose many occupied people for which it is for the cases who are that keep poor pace, law In order to so is sold. are unable to care themselves, pays recognize desirability when one for for to see the should par temporary a dwelling, being obliged keep use of of the landlord’s to contemplate buildings insofar as reasonable ties such from falling into a state decay dilapidation. part of the owner' can assure on the and care This af- habitable, example be safe a it, dwelling striking and fords but possession deliv only changes resulting at the time is from growth period throughout for cities and the ered but establishment of new liv- presume It is fair payment ing is made. to conditions under which the land- voluntarily would choose premises no individual lord’s relation to the leased dwelling naturally that had live in a become un to remains intimate and his repairs apparent.” habitation. The 13 for human commu make safe C.J., Flues, Church, (1941). Becar 64 10. Prosser on Torts 666 518, 520. N.Y. 11. Prosser on Torts 650-51. Harkrider, Liability Landlord, Tort of a premises 12. This condition of the leased (1928). “It Mich.L.Rev. 261 apparent photographs from the in been said that there is no more has cluded in the record. Plaintiffs’ Exhibits holding the lessor reason liable for 1-A, 1-B, Nos. l-C. resulting damages from a con- defective Note, premises L.Q. Cornell than is for dition gran simple holding tor of a fee estate grantee.” his Id. at 263. liabie to jus- nurse, ?” impervious advanced Two reasons have been etc. Courts are not unequal tify perpetuation of the rule at common to the bargaining position of the First, parties day interpreting conditions. agreements. law under modern For, bear the the tenant should as Mr. said that Cardozo “Rules Justice responsibility repair during the term process derived a of logical deduction pos- pre-established the lease because control from conceptions of con- premises op- him give tract obligation session have broken down be- condition, portunity steady to know their whereas fore the slow and and erosive action opportunity. This utility justice.” landlord has no such This court illus- might validity Kay Cain,18 have some if the reason trated where we “ * * go upon prem- had right no *. landlord said that it is wheth- doubtful presumed But the landlord is a ises. er clause which did exempt undertake repair, then concomit- a landlord from responsibility for neg- right upon ligence ant to enter for in- would now be valid. The acute spection repair necessarily be housing shortage in and near the District implied. And, any case, the landlord can of Columbia gives the great landlord so always right prem- bargaining reserve enter the advantage over the tenant that inspect repair ises in order to them. exemption such an might well held in- Indeed, the case bar shows that the land- grounds public valid on policy.” There repairs did enter to make from lord time adopt reason to an inconsistent view time, where, here, not that was ever refused such the dwelling constitutes the entry. And as “notice” insofar is the rea- entire and there is no clause ex- rule, emphasis pressly son for the it bears exempting the landlord from liabil- specific the landlord notice of the de- ity.
fect which caused in this case. many great states,19 In a the common sophisticated and more second rea- rule to which law the court adheres in this liability relieving changed by son the landlord case has been up- statutes based recognition hypothesis socially that “it is still de- social economic undesirability. For example, discourage explana- sirable not to investment in and tion ownership estate, changing statute particularly pri- real rule in Cal- ifornia, the dwellings.” obj This Commissioner’s states, vate ective well note But changes desirable. is a fallacious over- “This section rule simplification suppose subject that the common *8 which, conform to that not has much do judicial law rule to with the rate withstanding steady of adherence property.15 investment in years real the oth- of On for hundreds to adverse doc hand, trine, er it seems dear to me generally the rule by unpro believed operates utility to public law, defeat the interests of fessional upon to and “Upon justice. and whom is loss to be which basis always almost con placed, justly upon very more than the land- tract. The fact that there are re Upon who, lord? the tenant peated of his because decisions to contrary, down * * * poverty year risks his own neck to to shows public ? Upon live in the equal- house the tenant’s do not and cannot understand their poor mailman, ly guest, the visiting justice, or even realize their existence. Eldredge, Liability 14. U.S.App.D.C. Landlord's Tort for Disrepair, 84 U. of Pa.L.Rev. (1936). Some of these statutes are collected Harkrider, Liability 15. For an outline of of some the economic in Tort of a Land considerations, James, lord, II, see Shulman & Part 23 Mich.L.Rev. 383-91 (1928); Cases and Materials on Torts James, 588-9 see also Shulman & (1942). and Cases Materials on Torts 589-91 (1942); Prosser on Torts 650 587-8. Id. at Writings Benjamin 17. Selected of Nathan (Hall 1947). Cardozo 148 Ed. shape mould it into and not not and new of law could point familiar a So ” forms.’ adjudication less useful again again and rise community large not
were it
sphere
dividing
There'is no fixed line
every application of the
revolt at
legislature
and the
of action
between the
rule.”20
change
of a
effecting
courts
needed
fairly asked,
not the
may be
should
It
should not be
common law rule. The line
of
the District
Columbia await
courts of
“metaphysical
marked
accordance with
Mr.
congressional change
of
rule?
conceptions
judge-made
of
of the nature
to
provided the answer
Sutherland
Justice
law,
implacable
nor
the fetish of some
when
query
United
in Funk
States,21
tenet,
gov
such as that of the division of
said that- the court
may
“It
powers,
considerations of
ernmental
but
rule,
old
enforce the
should continue to
convenience,
deepest
utility,
of
and
contrary
experience
modern
however
to
justice.”
“Change of this
sentiments of
opposed,
prin
thought,
however
and
and
Legislat
should
character
not be left
legislation
of
ciple,
general
current
woefully
“If
misin
judges
have
ure.”24
opinion may
judicial
of
have be
terpreted
day,
or if
the mores
their
come, leaving
responsibility
Congress
day
longer
those
mores
their
are
course, Congress has
changing
Of
it.
tie,
ours, they
helpless
ought not to
sub
n but,
act,
power;
Congress
fail to
mission, the hands of their successors.”
the matter
failed in
now
it has
many
undoubtedly
land-
It
true that
review,
upon
court be called
shaped
in reliance
lords have
their conduct
not
question,
is it
decide
This
the rule which I
discard.
would
power,
decide
court,
possess the
if it
weight.
consideration
entitled to some
present-day standards
in accordance
view,
But, my
outweigh the
it cannot
justice
than in ac
rather
wisdom
shifting
and economic
social
need
antiquat
with some outworn
cordance
distribution of the risk. To those landlords
”
point
past?
went on
He
rule of
ed
have acted in
faith there
who
flexibility
capacity for
‘This
out
undoubtedly
hardship.
be some
But in our
peculiar
adaptation
boast
growth
experience, they
possessed of
realistic
*
**
commonlaw.
excellenceof the
discharge this
better means to
burden.
principle
as it was
characteristic
And
give
other
slight
We need
consideration to
inspiration
law to draw
the common
employ
landlords who
rule
justice,
every fountain of
we are
per-
press
advantage
extent of
supply
of its
sources
assume
mitting
known hazard
exist
callous
contrary,
we
exhausted. On
been
safety
be-
disregard
fellow human
ex
expect
new and
obviously
that the
various
should
ings who are
without the means
system
protect
own situation and
themselves.
periences of our
Benjamin
Cyclopedic
Writings
Codes of
Californi
23. Selected
Nathan
20. Kerr’s
*9
Code,
1947).
(Hall
note
1941
17
Cardozo 170
Ed.
§
Civil
Dwy
Wheeler, J., concurring in
Con-
371, 381-382,
Co.,
74, 99,
necticut
Conn.
U.S.
54 S.Ct.
Emphasis
sup
883, 891, L.R.A.1915E,
A.