George Washington University v. Weintraub

and extent of the injuries appellant’s

wife. Regretfully, we necessary find

reverse and remand this case for yet a new

trial on all issues. trial,

Reversed and for a Remanded new UNIVERSITY,

GEORGE WASHINGTON al., Appellants,

et WEINTRAUB, Appellee.

Alan PHILLIPS, INC.,

FRANK Appellant, S. HUSSAIN, Appellee.

Noor 80-137,

Nos. 80-394.

District of Columbia Court of Appeals.

Argued Nov.

Decided Feb. PRYOR, MACK, FERREN and

Before Judges. Associate MACK, Judge: Associate man- building a landlord and Appellants, appeals in these consolidated contend ager, appel- allowing erred in trial court that the tenants, lees, damage recover their apart- a flood in their arising from losses of a scope is the building. At issue ment premises rental duty to maintain regula- housing code in compliance challenge appellants Specifically tions. an af- bring tenants-appellees right of un- action for firmative cause of case, re- of this der the’circumstances recovery court to bar fusal of the trial in the clause exculpatory of an the basis imposi- contract, trial court’s and the rental losses to them for liability upon tion an unforesee- from appellees that resulted We af- occurrence. unpreventable able and remand part, part, firm in reverse part.

I. were tenants appellees October building Street, N.W., apartment 2115 F Washington Universi- George by owned Inc., Phillips, managed by. Frank ty and leases appellees’ A clause appellants. of or liability “for loss appellants of relieved damage property of [t]enant into or flow leak ... water ... through any any part of said any or from plumbing, in the roof or defects other source.” were the tenants On October apart- supply to the that the water notified discon- temporarily to be building ment per- were plumbing repairs nected while building. Appellee nearby formed in a returned to his Weintraub reconnected supply had been the water D.C., Vinson, Jr., Washington, Fred M. seeping by water his unit flooded found Klontz, Washington, with whom David S. Hussain’s ceiling. Appellee through the D.C., briefs, appellants. was on Wein- beneath directly apartment, located Weintraub, pro Alan se. When unit, similarly. was flooded traub’s twen- some was located Hussain, building janitor pro Noor se. ty thirty later, minutes thing,’ he determined were in [appellants] ... [no] it.” con- position anticipate that the water The court coming apart- from the appellees prove “did not ment cluded directly located above Weintraub’s act or negligent discrete omission damaged unit. The flood appellees’ person- [appellants] proximate was the cause al property extensively and rendered their recovery [appellees’] damage” and denied apartments days. uninhabitable for several theory.3 the negligence under Appellants lodge authorized appellees to at nearby University hotel expense at until did, however, appellees to The court allow repairs completed were in approximately of war- recover under breach twelve days. that ground very on the ranty theory appellees’ under apartments condition of Appellees each against appel- filed suit warranty these circumstances breached seeking damages lants .arising losses and of the landlord’s the contractual nature flood, from the including reimbursement obligations warranty under the habitabil- expenses for hotel damage and to their ity independent allows recovery personal At property. appellants trial testi- proof negligent. that the landlord was plumbing problems fied that no had come to court held that their incident, attention before this that the once the has established that his plumbing premises defective, at was not compati- in a condition not that and 11 October flood had not dam- implied warranty ble with the landlord’s aged the plumbing. tenant) habitability (the that he and The trial court appel- considered responsible, not the burden shifts to lees’ under claims1 two alternative theories show that a third-party of recovery, negligence and (the landlord) has responsible, that he implied warranty of In all he make habitability. reasonably ana done that could to lyzing apartment habitable, negligence claim the and that court rea implied warranty soned that has not been breached. although appellants owed their tenants a of reasonable care under the The court then two additional considered circumstances, they were not required to determining issues before the amount of foresee possible all dangers might that be appellees to which were entitled. fall the person or property of appellees. First, the that unlike the tenant court noted distinguished court cases in which land Realty in 138 Corp., Javins v. First National lords had been held liable to tenants on 1071, 369, cert. de App.D.C. U.S. 428 F.2d negligence ground theories2 on the 186, that nied, 925, 27 91 S.Ct. L.Ed.2d U.S. there was “no evidence that the flood from (1970) in sought who an abatement Apartment 502 rent, was more than a appellees warranty ‘one time to use the sought opinion 1. The trial court not did issue an in No. ferred from the circumstances. We certify parties’ applica- 80-394 but did that the disagree. We have inferred appeal opposition tion for thereto accurate- of an this doctrine the cause “[w]hen ly facts, issues, rulings characterized the control, (1) known, (2) in the defendant’s below. See D.C.App.R. 6(d)(1). Because the person unlikely in to do harm unless facts, issues, rulings outlined in these Crump Browning, negligent....” control is pleadings substantially are similar to those in 695, Appellees (D.C.1955). con- 110 A.2d dispose appeals togeth- No. 80-167 we of both originated in cede their brief that the flood er. Considering Apartment in from a 502. toilet that this fact and the trial court’s conclusion Kettler, 2. Kanelos v. U.S.App.D.C. who was at was no evidence show “[t]here (1968); Whetzel Jess F.2d 951 Fisher Man- pressure Co., fault in connection with the agement U.S.App.D.C. 282 F.2d flood,” apparently we (1960). valve which law no as a matter of find basis conclude Appellees appeal contend the trial instrumentality dam- that caused the ruling appellants court erred were age appellants’ control. in these cases was because, negligent of principle based on the ipsa loquitur, the trial court should in- habitability “may

breach as the basis for an affirmative cause used as a damages. (to action for The court damages) concluded sword well as collect (to obligation pay shield contest rent).” implied warranty of habitability may be used as a sword well as a [as shield]. Realty Corp., Javins v. First National su- Javins, Appeals the Court of observed housing leases for residential pra, held that by way extending of dictum that all “[i]n jurisdiction implied include an war- in this par contract remedies for breach “[B]y ranty habitability. signing lease, ties to a we include action for a continuing lease the landlord [undertakes] specific performance landlord’s im to maintain the obligation to the plied warranty of habitability.” 138 U.S. with all applicable in accordance at n. App.D.C. F.2d at 379, 428 Id., U.S.App.D.C. law.” n. added). 61 (emphasis Since ... Javins F.2d at The court further held performance authorizes war specific are re- warranty to landlords fulfill this cases, ranty habitability “legal” of the the substantially with quired comply to remedy damages of must be available a the District of Co- Housing of Regulations fortiori. alia, lumbia inter that provide, which The court also considered of the effect be ... shall maintained [e]very premises the quoted supra ap- lease clause which provide to decent repair so as kept in pellants purport to relieve themselves of the living occupants. for accommodations damage. weighing liability for water After part contemplates more This of the Code public policy considerations and the effect repairs than maintenance mere basic of Housing Regulations 2912 of the of the § elements; its purpose to the keep out District of Columbia the court concluded de- and maintenance repairs to include that question pur- as the lease in “[i]nsofar or neighbor- signed to make ports implied nullify warranty to the of safe. healthy hood imported habitability every which into agreement, rental it is ineffective as a mat- 5G DCRR 2501. § ter appears of law the very .... [I]t Court, reasoning In Javins the Circuit paragraph in vio- inclusion of the lease tenants, ma- the vast “[t]oday’s urban lates section 2912.” multiple dwelling jority live in of whom court Finally, awarded land, houses, interested, but not in are ” compensate expenses incurred appellees solely occupation,’ in suitable ‘a house in occupancy connection with of alternative 376, at id., at 428 F.2d U.S.App.D.C. 138 housing following person- the flood and for omitted) v. (footnote (quoting Ingalls al property proximately losses Hobbs, (1892)), 31 N.E. Mass. appel- The court did not flood. abate units dwelling of urban held that “leases rent, however, finding lees’ award that “[t]o and construed like interpreted should be expenses both ... an abatement would Id., U.S.App.D.C. any other contract.” recovery par- constitute a double under the omitted). (footnote F.2d at 1075 (footnote of this ticular circumstances case” be- lease Applying principles these omitted). it, conditioned the tenant’s fore the court alia, the upon, rent inter appeals obligation pay

These followed. war- implied fulfillment landlord’s II. in Javins habitability. of ranty was, therefore, assert of allowed to breach the trial court’s We affirm “characteristi- implied warranty as defense cally ruling implied persuasive”4 colleagues. phrase describing judge in The trial used relied, opinion, upon which he of his of one possession suit for obligation based on non- implied warranty fulfill the payment rent. habitability. very public policy consid- prompted erations which the Javins court to The Javins court not held implied inequality introduce the warranty, “interpreted leases should be and con bargaining power between landlord and contracts, strued” as but indicated that all scarcity housing, tenant and the have remedies, contract including specific per persuaded jurisdictions other to hold that formance, be available in the event be may warranty habitability aof Id., the implied warranty. agreement parties waived to a by private U.S.App.D.C. at 380 n. 428 F.2d at See, e.g, Realty lease. Austin Asso- South n. 1082 61. It is well established in contract Sombright, Ill.App.3d ciation that, law breach, event total (1977); Ill.Dec. 361 N.E.2d 795 Fair party may elect terminate contract Negley, supra. or, in alternative, use the contract we permit Were waiver of the im- sue for damages. 11 Williston on Con warranty by express provision plied (3d 1968). ed. Accordingly, tracts lease, would be rare lease we hold that a use breach of appear. which the As waiver would not implied warranty of habitability clause, few, exculpatory any, with the basis for an affirmative action for housing tenants would able to find jurisdiction.5 in this so holding we fol had not been waived. low growing jurisdictions number of wholesale, unbargained To allow such See, extended this remedy to tenants. implied warranty waiver make the e.g., Hartman, 985, v. Jarrell 48 Ill.App.3d 6 habitability meaningless. of 812, Ill.Dec. 363 (1977); N.E.2d 626 Mease 59, supra, Pa.Super. Negley, Fair v. 257 at Fox, (Iowa v. 200 1972); N.W.2d 791 Boston 390 A.2d 245. Housing Authority v. Hemingway, 363 jurisdictions hold We follow these and 184, Mass. (1973); 293 N.E.2d 831 Kline v. exculpatory that the clause at issue is inef- Burns, 87, 111 N.H. (1971); 276 A.2d 248 appellees’ recovery fective to bar insofar as Gambino, 460, 308 Berzito v. 63 N.J. A.2d 17 to a waiver or of amounts modification (1973); Fair v. Negley, 50, 257 Pa.Super. warranty of rights implied their under the 390 (1978); A.2d 240 McCoy, Teller v. 253 2912; Javins, 5G habitability. See DCRR § (W.Va.1979). S.E.2d 114 See also Schoshin 49, n. supra U.S.App.D.C. at 378 n. 380 ski, Tenant, American Law of Landlord and 49, 428 F.2d at 1080 n. 1082 n. (1980). 3:21 § IV. III. specific affirmance to these Our We likewise affirm the trial court’s rulings, however, of the dispose does not ruling that the exculpatory appel- clause in clearly matter us. While landlords before leases, lees’ purports which appel relieve maintaining of rented bear burden lants of liability personal property dam housing with code compliance in age by any caused source (including defec progeny and its provisions, neither Javins roofing plumbing) tive is ineffective to Housing Regulations of District nor the recovery bar in this case. impose upon we require of that Columbia Javins, all Housing Regulations arising from liability su- landlords for losses pra, The Hous- squarely impose conditions that violate the code. upon in 5. We to a reduction note that more de minimis not entitle than violations would Regulations Housing required U.S.App.D.C. F.2d of the are to es rent.” 138 n. apply implied warranty principle tablish breach of the of habit at 1082 63. This n. ability. “one based on breach Javins court noted that or claims for habitability. standing implied warranty two minor violations alone which do of habitability not affect are de minimis and ing impose adopt rigidly We decline to such a Regulations do not immediate upon a landlord unconditional We see approach. nothing exclusive inher instead, but, contemplate for code violations in a rule ently inconsistent which conditions are only repairs sanctions not effected recovery theory alleging under breach of of actual constructive notice upon of implied warranty habitability defect reaches landlord.6 See 5G DCRR failed the landlord has demonstration 2902.1(b). § to comply reasonable care exercise the im Regulations and fulfill Housing of examining scope a landlord’s noted, warranty. As we have plied obligations personal injury context of “Plia a curious bility for breach of ‘is claims arising allegedly hous- unsafe of tort conditions, hybrid, illicit intercourse ing born we have that “the noted Watergate and contract ....’” Berman v. Housing Regulations impose duty West, Inc., upon (D.C.1978), prop- reasonable care owners of rental 391 A.2d Jude, erty.” Scoggins 95 at (quoting See v. 419 A.2d W. Law of Torts Prosser, (D.C.1980). Similarly (4th 1971)). Accordingly, we have noted we follow ed. care recovery reasonable jurisdictions those condition “[a] require does possible him to foresee all upon warranty theory breach dangers.” Worthy, Noble A.2d on actual constructive (D.C.1977). the defective condi part of the landlord of given by the tion. Such notice need not be Appellees argue and the trial court found landlord, the exercise if the that liability for losses caused by conditions care, aware reasonable could become housing violate the code See, Kel e.g, of the defective condition.8 the implied warranty habitability Gerstner, ler-Loup Construction Co. imposed regard without whether a (Colo.App.1970) (allowing tenant P.2d 272 has been negligent maintaining personal property to recover premises.7 “[Pjroof defective pipe losses burst hot water gence contravenes the whole of an idea exclusive who had ground implied warranty habitability, heating inspect to control failed system, of obligation contractual .... Proof of a condi repair and of defective despite notice obligation of a contractual is the sole Fox, Dwyer supra; of pipe); tion Mease v. requirement Ap- to liability.” establish ... Inc., N.J.Super. Skyline v. Apartments, pellees’ Appellees Brief at have 8. 463, aff’d, A.2d 63 N.J. A.2d impose us a on landlord strict injured to (denying recovery such losses unless the landlord could estab- ground hot faucet on the by lish defective water the tenant or a was party third that, to responsible although obligated for the defective of condition control, land premises. would, effect, maintain facilities his Appellees know of render or reason to knowledge a landlord an insurer of his lord had no tenants’ Holmes, Pa. property. defect); Pugh v. latent 2902.1(b) Housing Regulations Appellees 6.Section abandoned their 7. have not provides reject imposition against gence theory, for the of notion sanctions however. We if code violations arise after is one in these circumstances inception loquitur. tenancy ipsa of a which of evokes doctrine See 3 infra. note have not resulted from the act or intentional invitees, negligence of or the tenant his of need not take form which violations are not corrected within the 8. notice See municipal time issued from authorities. allowed therefor under a notice official notice Javins, supra, pursuant or, Regulations, U.S.App.D.C. to n. these such at 380 issued, not notice has been within reasona- n. 428 F.2d at 1082 knowledge has ble time after the owner or reasonably of such violations .... (1979); A.2d 897 Fire State Farm & deed the court found that “there no trial Casualty Co., Co. Home Apartment Insurance evidence that the flood from Wis.2d (1979) (allowing 276 N.W.2d 349 .. thing’ a ‘one time . was more than' to damages personal recover position [appellants] were in to [no] property by plumbing losses caused frozen appellants We conclude that anticipate it.” where landlord had notice of defective of with proof respect met their burden condition that damage). caused the See erred, lack of notice and that the court Schoshinski, also of American Law Land- therefore, habitabili- using warranty Tenant, lord (1980). 3:24 liability for ty theory impose upon them appellees’ losses.

We hold that a landlord must exercise reasonable care to maintain rental V. premises compliance housing record, Based on our review of code in order to implied warranty fulfill the be, however, appellees may as we find that habitability. In setting standard we law, damages entitled to on matter of contemplate that before a landlord be may grounds. other each in Appellees’ leases held liable for breach of the he following cluded the clause: notice, constructive, must have actual or defective conditions constitute said become uninhabitable [I]f A breach. landlord who exercises reasona or not by casualty reason fire other ble care not properly therefore be held [t]enant, caused his liable ato tenant for losses that arise from agents, servants the rental herein re- defective conditions he neither knew nor suspended be said prem- served shall until had reason to know about or that could to a ises shall have been restored habita- prevented.9 be foreseen or The burden is condition, ble herein to be con- nothing upon the landlord to show lack notice. strued, however, requiring [l]andlord premises. rebuild restore said

In the instant case there was testi trial court mony Opinion its Order the violations, there were no existing that such found Weintraub’s flooding specifically appellee had never occurred be fore, apartment that in was uninhabitable. crit- reconnecting the supply, water “[T]he according accepted practice, ical whether the valves issue is were carefully, following handled period and that subse habitable for the flood- plumbers quently had ing been unable find and before corrective action. any blockage or any damaged In- pipes. Court finds that it was not.” West, Inc., Watergate circumstances, supra, In Berman theory. appropriate we Under products liability however, discussed use theories a landlord could liable tenants cooperative equipment recover associa- defective unit, cooperative noting tions for defects in a that, failing ground installing to re- the in “ liability imposed that ‘there is a for place equipment he have that knew or should by placing product caused a defective into the defective, placed known to he into the be stream of commerce in the of District Colum- instrumentality like- “stream of an commerce” ’’ Id., bia.’ (quoting 391 A.2d at 1357 Cottom appar- ly damage. court to cause The Javins Service, Inc., McGuire Funeral 262 A.2d result, ently contemplated noting “vio- this (D.C.1970)) (footnotes omitted). 808-09 In this resulting inadequate repairs or lations “[tjhere vein we observed is reason to believe disintegrate normal use materials which under strictly that a landlord could be for held liable assignable not to the tenant.” would be damages equip- caused to a tenant defective U.S.App.D.C. at n. 380 n. 428 F.2d ment. ... some circumstances this liabili- [I]n ty might though attach even the landlord ac- exculpatory appellees’ The clause in leases quired building subsequent the to installation recovery appel- if ineffective bar Id., equipment.” (cita- of the 391 A.2d at 1359 theory despite the lants were liable under this omitted). tions liability damage for caused disclaimer of Because the trial court did not find that the roofing equipment and defective such as. plumbing appellants’ apartment building in plumbing. defective, we do not rest our decision on this Second, we for in

Accordingly, considering remand these cases the the trial habitability, properly court did findings damages as to the amount to the landlord the burden produc- shift entitled, which appellee Weintraub breach, a ing rebutting evidence manifest whether appellee Hussain’s It high. the raised the hurdle too but court similarly uninhabitable, and, so,, the a third imposed a burden “to show that amount he entitled. to which show responsible” instead of to party was awards, calculating damage In the these negligence) that (as alleged in the case of court compute the amount of rent the could not- have known of this pursuant should be abated care. defect in the exercise of reasonable clause this figure and subtract from Therefore, although the trial court treated compensation already accepted by appellees, considering negli- lightly the landlord too in for the correctly trial court held com- heavily it too gence, leaned the landlord pensation in form of both an abatement record, warranty. evaluating On this expenses for hotel reimbursement recon- I also would reverse and remand for would constitute recovery. double alleged breach of sideration of warran- ty- So ordered. V. of

Finally, agree do not with Part I opinion remanding for consid- majority FERREN, dissenting: Judge, Associate in the the clause eration of I respectfully dissent from three of reason uninhabitability “by covering lease rulings. court’s No cited casualty.” party of fire or other to this that clause to the court or trial court, first, The recovery trial denied thus gratuitous court. remand is The negligence. landlord’s alleged inappropriate. kept court properly persua- the burden of declining sion on tenants but erred I. apply ipsa loquitur be- tenants’ conclusions, elaborating my I find half. met: ipsa All three tests for res were helpful to show how flooding apartment, attributable warranty theories interrelate. valve, pressure buildup to water in a does Jude, not occur A.2d ordinarily absence of Scoggins We noted in regulations the land- im- gence; instrumentality (D.C.1980), housing within care, a apparat- pose lord’s exclusive valve of reasonable duty control —the in landlord us in which can result plumbing system apparently — has that a landlord negligence. This means ac- flooding; tenants’ (not attributable duty repair defect contributing tions were not factor. tenant)1 causes thereby tenants facie prima established standards, fall below code case; thus, the Restatement should have re- trial court Property (1977); and if 5.5§ (Second) re- quired the landlord to evidence produce correct the situation the landlord “does not butting Spe- negligence. the inference of being re- within a reasonable time cifically, the should have had so,” 5.4, to do id. quested by show it could of the known will be liable for breach care, or defect in the exercise of reasonable care, i.e., negligence. reasonable else judgment. run the risk of an adverse Accordingly, I reverse remand analysis impor- would Two of this are aspects alleged negligence, for reconsideration of arise tant: for cannot liability for on record cannot be a until the landlord the landlord with to defect respect (2) has of the defect and exonerated as a matter of law. receives notice by by strictly injuries code 1. A be the ten- liable landlord’s can offset contributory negligence; ant’s the landlord violations. a “reasonable time” within which to make Where the landlord is able to discover the repairs. The exercise of reasonable care by condition the exercise of reasonable presupposes the time it. within which to do care, he subject he is to after has Thus, if a tenant informs the landlord about had a reasonable to discover opportunity a leaky roof and it takes days repair five to to remedy the condition and it. roof, a there can be no a duty breach of to 17.6, c. Id. Comment § the tenant —no —for defects, a question As to hidden period of five days after notice. It to opportunity remedy” “reasonable after follows that whatever remedies for negli- practi- notice often will As a be academic. gence abatement, are available —rent dam- matter, once possession, cal a tenant takes ages to the leased pos- and tenant trier will hard to probably pressed be sessions, and consequential damages find that no- the landlord had constructive personal injury they (in cannot be invoked — tice of a hidden defect wholly within the my hypothetical) until day, after the fifth (i.e., probably tenant’s domain the landlord no matter what happens in the meantime. will not have been to “able discover Id.; see id. (damages), (rent 10.2 §§ 11.1 condition the exercise of reasonable abatement), (application 11.2 of rent to re- care,” id.). hand, a On the other as to (rent pair), 11.3 withholding).2 defect in the premises before the tenant But happens, ease, what as in this when possession, took will probably the trier find damage is attributable to a hidden cause or the landlord had constructive notice defect, and thus the tenant has not fore- long occurred, the injury before and thus warned the landlord? Under the Restate- had more than “a opportunity reasonable applies, same rule but it is extend- ment remedy discover the condition and to it.” ed to incorporate constructive notice is, however, Id.3 There a third situation landlord: where conditioning the Restatement’s The landlord subject to liability [in liability period repair reasonable under the rules of this section tort] may after constructive notice of defect be aware, for conditions of which he is or of critical where landlord: the situation which he could have known in the exer- the landlord control of a common retains cise of Ordinarily, reasonable care. facility pos- area or after the tenant takes will chargeable with notice of session and thus the landlord retains contin- prior conditions which existed the time exposure. ued that the tenant possession. takes Where the condition arises after the tenant takes II.

possession, able, not be care, negligence analysis, in the de- foregoing exercise of reasonable to dis- condition, duty comply cover the statutory rived from which case the codes, housing premised express landlord will not be on an liable under the rules Id., habitability. of this section until he implied warranty has had a reasona- opportunity remedy ble 17.6(2); Development the condition see Old Town Co. § the tenant Langford, Ind.App., notifies him of it. 349 N.E.2d 763- however, expresses In case of sudden destruction the view that non-hu- ment, notice, only remedy man force the tenant’s is termina- such even with constructive supra tion of the repair lease. 5.4. generally § until after the has no Restatement, request, apparently tenant makes ordinarily 3. Given fact ground the breach the tenant has waived chargeable “will be with notice of conditions gives entry upon until the tenant notice. See prior which existed time that id., waiver/request I 5.3. do not find this § 17.6, supra possession,” takes Restatement, theory persuasive; I find a landlord has c, theoretically Comment the landlord should existing at notice of defects constructive days be in default once number of had tenancy. inception of a passed reasonably required to cure defect day tenancy. after the first The Restate- 52 1288, 316, Mitchell, a 47 391 N.E.2d (1976). That is derived from N.Y.2d warranty 310, denied, 992, 444 U.S. incorporate cert. theory

contract does not 418 N.Y.S.2d (abate 523, (1979) a fault 62 L.Ed.2d fault element. “Considerations of 100 S.Ct. 745, Coulston, v. Misc.2d warranty.” ment); Kaplan an belong analysis do not (Civ.Ct.1976) (injury); see Sons, Jefferson, Inc. Mass. Berman & 381 N.Y.S.2d 196, Corp., accord v. WCG Investment (1979); 396 N.E.2d also Krennerich That Co., is Development supra, (La.App.1973). Old 349 278 Town So.2d harsh, I see of war- as it. N.E.2d at 767. Because a breach too regard amounts to ranty without to fault Second, has said Massachusetts liability, significant strict there are two be available remedy abatement should rent questions: (1) liability is de- whether such warranty of habita- tenant under the to a landlord, pendent (2) on notice to the notice of the upon bility theory immediately what kinds of relief are available. deferral of without defect to repair hold, Maok’s until after a reasonable Judge opinion The cases the breach Inc., Sons, supra 396 out, Berman points period. for the court that actual & posi- 985-86.4 The Massachusetts trigger constructive notice is N.E.2d at required Id., N.E.2d at sense: warranty liability. See tion makes 774-76; Sons, Inc., supra Berman & a substantial A with dwelling afflicted Mass. at 985-86. As N.E.2d at is not habitable. Sanitary Code violation and for consequence, liability warranty is objective of the The essential warranty virtually breach of turn out to be receives tenant make sure that use the same: for failure to former may The paying what she for. (or con reasonable care to cure a known with mere rea- obligation excuse her known) defect, latter for structively and the may Nor pay efforts to rent. sonable permit breach of a convenant not mere reason- duty avoid his (or known) known defect. constructively dwell- provide a habitable able efforts parties, ing. The contract between fact, not distin- the Restatement does lens, clarifying law’s through seen guish warranty between symmetry. requires such Basically, merged in they theories. are funda- set of rules a landlord’s recognizing 8-5 5k sk iff sfc # mental to maintain the condition during nor inception at the Neither called of ... property, “obligation an leave room for term of the lease did we id., 5.5, a of which —as repair,” Admittedly a time repair. reasonable earlier —is on actual contingent indicated of de- must her landlord notify coupled constructive notice of the defect to a rent abate- prerequisite as a fects which to with a reasonable time within ment, requirement of this purpose but the repairs. make a reasonable not to assure the landlord is de- repair. requirement time to analysis Two deviations from this minimize the time First, adopted signed New be noted. York has per- mitigate of war- in breach and hence strict for breach policy of rent. period no- of abatement habitability, regard to missible ranty of without notice is begins when Corp. v. The rent abatement Management Park West tice. See Co., supra, Development repair.” Supreme Court Old Town Massachusetts Judicial 4. The remedies, Specifically, “the tenant open question in- 349 N.E.2d at 776. left of other damages (1) consequential personal available cluding in- for all recover immediately contract ... during period breach of jury, pre-repair traditional remedies for including any consequential within Appeals has after notice. Indiana Court guidelines; Hadley damage Exch. range 341] Baxendale full reme- [9 announced that the personal prop- implied personal and erty damage dies will be available for breach of traditional habitability, actual tort under but Id., gence principles.” opportunity 349 N.E.2d notice or constructive “and given, test, at a reasonable after no- under applicable time The Restatement tice. Time for repairs place warranty theory, has no in the either or is calculus. “could have known” whether the landlord “in the of reasona- of the condition exercise Id., 396 (footnotes N.E.2d at omit- 17.6, supra, ble care.” § Restatement, short, ted). In under Massachusetts landlord, course, will Comment c. of rule, immediately to upon notice the land- of all to have notice be deemed at times of a lord breach of warranty habitability, of he or defects in common areas that she the tenant need only pay property what the 5.5(2). supra, controls. See § Restatement, worth; is the rent is abated to that extent. Moreover, earlier, the indicated landlord Davis, Slade, Cf. William J. Inc. v. 271 A.2d has traditionally chargeable been (D.C.1970) (in case where housing code existing all at the conditions violations existed tenancy outset possession, when the time the tenant took remedied, were never tenant was re- Id. exclusively in control. landlord was sponsible for only reasonable rental value of 17.6, c; Development Comment Old Town § Thus, premises). if the becomes Co., at supra, 349 N.E.2d 775-76. But see uninhabitable, obliged pay is 3 supra. arising note In situations after the no rent once the landlord has notice tenancy begun, has the constructive notice defect; a warranty breach of not depend- is same, test is the but the will have landlord ent grace additional period for re- less of an the de- opportunity discover pair.5 fect, 17.6, supra, see Restatement, Com- c, ment and thus will be less vulnerable to III. unless, liability as in the case of common The difference in time between the at- areas, responsibility the landlord retains tachment of liability under negligence theo- for, to, or facility access the area or where ry and under the warranty Massachusetts the defect arises. theory five-day repair period my —the earlier is, hypothetical may problem be of theoretical despite minimal nice — consequence when the only remedy liability at difference between issue is rent abatement. The issue is hidden time tenant en- magnified defects when we consider availability tered the premises, dam- which the landlord ages persons fitness”), property, since deemed to know (“warranty of the repair-period (2) liability interval after notice that arise could hidden defects make a real during tenancy, difference espe- which the landlord cially in cases concerning deemed to in the common areas know discoverable facilities over (“duty which the care re- landlord retains exercise of reasonable (and control greater thus exposure) pair”), after how can one tell when hidden actually commencement of the tenancy. developed? developed See Part I. defect If it supra. possession, took how can one tell discoverable whether was defects, When we consider hidden how- care? the exercise reasonable ever, an significant even more issue than difficulty questions, per- Given the of these availability period repair present- really significant question is: who haps ed: when shall a landlord be said proof should have the burden of as to con- constructive notice of a defect will notice, structive landlord or tenant? trigger or, for abatement of rent more significantly, case, for consequential negligence theory dam- ages? ipsa loquitur applica- doctrine of res —if The Massachusetts rule reflects the theoreti- a known in contrast with a to cure cal (implying difference between a defect time within reasonable text, so). summarized earlier in the do ante at 52: defect, permit covenant not 866, keep Snyder,

ble—would the v. 374 A.2d 867-68 persuasion burden of Sullivan (D.C.1977) (quoting W. Prosser, require the tenant but the landlord to Handbook 39, (4th at 214 ed. of the Law of Torts § the rebutting come forward with evidence Quin George Washington v. 1971)); accord landlord, “rational inference” be- the 580, (D.C.1979). 407 583 University, A.2d its plumbing cause of overall control of the available, therefore, loquitur ipsa res When system causing injuries, the must have been tenant, limited access who has permit will A.2d negligent. Cramp Browning, v. 110 nature of the to about the true information 695, (D.C.1955) (res 697 is a ipsa loquitur event, the of fact to draw two urge trier plaintiff rational inference that relieves the evidence: inferences from circumstantial of the acts of showing specific burden likely than not was that the accident more the negligence). But while it is true that defendant- the negligence, the result and plumbing landlord has overall control of the satisfac- responsible. was Absent system, ignore we cannot indi- the fact that the by rebuttal evidence tory system vidual tenants have access to fairly drawn be- these inferences will be (e.g., toilets). Thus, sinks and question the circumstances, cause, under the narrowly apart- more an becomes: when position substantially will be in a better system such is at plumbing ment-wide as cause of the explain than the tenant to issue and both landlord tenant have own lack of including injury, court, access, it ever be proper will for the See, e.g., if case. responsibility that be the evidence, hearing ap- tenant’s Krebs, (“superior, if supra, 321 at 561 A.2d ply (1) the land- ipsa loquitur requiring res defendants knowledge which not exclusive his “produce lord to information within of acci- sometimes have to the cause the incident” that caused how dents”); v. Washington Corp. Sheraton occurred, 321 Corrigan, Krebs v. (“De- Keeter, 620, (D.C.1968) 239 A.2d 622 558, (2) (D.C.1974), A.2d 562 absent access to greater fendant in control has a tri- satisfactory explanation, permitting the ... therefore instrumentality is] [and er negligent, to infer that the enlighten trier position better despite specif- the tenant’s show inability to fact”). ic negligence?6 acts of here, plaintiff-tenants the record On of res ipsa have had benefit yes ipsa loquitur The answer will be —res Annot., 91 A.L.R.3d loquitur. generally See will be available to the plaintiff-tenant —if (1979). First, flood 186 an the injurious event meets three tests: ordinarily not oc- through ceiling does (1) the event must a kind which be of negligence. Although in the absence cur ordinarily does not in the absence occur clear whether the ultimate cause of it is not negligence; of someone’s the trial I believe negligence, the flood (2) agency it must be caused an such an event court would to find that con- instrumentality within the exclusive occur without ordinarily defendant; of the trol See, e.g, Powers part. on someone’s gence (3) it must not due to Coates, 425, (D.C.1964) have been 203 428 v. A.2d voluntary pipes action contribution of house frozen is (flooding due to ordinarily happen part plaintiff. event that would not permits plaintiff present important loquitur land- It is to note that even escape unsatisfactory jury “explanation nonsuit. United or indeed lord’s case made, Hosp., jury Fidelity explanation Doctor’s is free & Co. v. even if no States Guar. cases, 774, negligence.” (D.C.1970). In some 775 to draw an 265 A.2d however, decline inference may Krebs, loqui- supra, ipsa be so 321 A.2d at 562. Res inference compelled compel strong permits tur does not the factfinder that the defendant but (as negligence; verdict or suffer directed where not shift the burden answer infer does chewing Walker, 218, body parts proof. tobac- human are found Aetna v. 344 A.2d Hadley co). (D.C.1975); n. Memorial W. Lathon v. Prosser, Law of Torts Handbook (4th 1971). ipsa (D.C.1969). Hosp., Res at 229 ed. 250 A.2d through (where precau “unless proper (N.Y.Sup.Ct.1954) S.2d Wardman it”); tion is not prevent pipe building taken to water valve on defendant’s Hanlon, App.D.C. 14, plaintiff-tenant’s breaks and water floods F. (where within premises, “this kind of accident scalding water from toilet Wash ipsa loquitur]”); the rule tank pours out and burns the acci plaintiff, [of Ravel, ington (Tex. S.W.2d dent and the give “ground circumstances lower (“The flooding of a Civ.App.1929) that, a reasonable inference if due care upper floor from the escaping water had been employed, hap ... thing ceiling something that through floor the is pened amiss would not happened”); ordinary happen does not in the course Co., Juchert v. California Water Service 16 things possession if those in and control 500, 514, 886, Cal .2d 106 P.2d 894 care”).7 proper exercise upper the floor (“[I]t is a knowledge matter of common Columbia, But see Ford v. District of that in the ordinary things course of water (res loquitur ipsa 905, (D.C.1963) A.2d mains do not break if having those the apply plaintiff did not where offered no management care”); proper thereof use probable as to cause of water main evidence James, Schon v. 531, (La.App. So.2d that the only break but offered the fact 1946) (res ipsa loquitur applies where hot damaged proper her water main broke water through heater leaks floor second ty). floor; floods first “the burden is on the prove defendant Second, that the defect was causing the valve the apparatus latent and could not have been discovered con- exclusively was in the landlord’s flood by such reasonably careful examination as a rigid trol.8 “Exclusive control” is terminol- prudent give owner should an appli to such actually concept. a flexible ogy for what is Wiler, Rindler & Inc. v. ance”); Blockton supra nec- W. 220. It does not Peosser, Realty Corp., 355, 357, 205 Misc. 128 N.Y. essarily mean that the defendant must preclude 7. Civ.Ct.1973) I would (plaintiff opportunity not the trial court from lost its discretion, exercising sustaining its before the ipsa res because it avail itself of the doctrine ipsa loquitur, require expert use of res mony beyond testi- “merely offering] went evidence of appear when it does not that common leakage supply water from a common water knowledge experience are sufficient to en- pipe contained within a wall without further lay person able a to determine whether explanation bring play which would into ordinarily accident would—or would oc- doctrine”). ipsa not — res negligence. See, e.g., cur without Brizendine Dist., 580, Nampa 584, Irrigation Meridian 97 Idaho ipsa loquitur My colleagues that conclude res 80, (1976) (“[W]here 548 P.2d common appellees’ inapplicable because of concession alone not be sufficient to en- originated “in from their brief that the flood a layman say” able the accident not would Apartment toilet in 502” and “the trial court’s ordinarily negligence, “expert occur without ‘[tjhere was no evidence to conclusion that testimony may give be admissible” to founda- with the show who was at fault in connection negligence; tion for trier to infer in this case it apparently pressure on the valve which entirely fact, ” proper was for the “trier of rea- in flood.’ Ante at 45 n. Nowhere soning light experience from his common in testimony flood that record there expert testimony,” to conclude that canal toilet, originated there but even it did ordinarily negligence). would not break without evidence, implication, some- no let alone that plaintiff specific If a introduces evidence of a toi- outside the landlord’s control stuffed one negligence (in expert acts of contrast with testi ap- my colleagues let—which is the inference mony general question partic whether a testimony drawing. pear of the land- to be injury likely ular would be to occur in the Hart, property manager, Mr. is consistent lord’s negligence), absence of he or she will be bound pressure up finding built elsewhere with a that result, If, such evidence. as a the evidence blockage (initially pipeline in the and forced negligence, plain weakens the inference of through else) pipes out located somewhere tiff in effect will have aided defendant’s apartment. of his testi- above The burden the mony, argue ipsa loquitur effort either to therefore, and its that the landlord or, alternatively, argue not be invoked agents “were never able to determine” prima plaintiffs has rebutted facie case. See damage, implication an that an cause of the not Bookbindery, Zirinsky, Publishers Inc. v. jammed upstairs a toilet. tenant must have (N.Y. Misc.2d 341 N.Y.S.2d (the one he habitability tenant) with access to the and that is not instrumen tality. Washington Corp., responsible, producing See Sheraton su the burden rebut- [of ” pra, 239 . (res ipsa A.2d at 622 can tal shifts landlord... loquitur evidence] however, supra. agree, be invoked note I do “joint control” cases “where See trial court’s view that this burden causing is con with instrumentality “to requires the landlord show that a third trolled ... single defendant and supra. responsible.” See note 8 Moreover, party party”). third consistent The court the burden too far. Given shifts “exclusive possibility control” is the underlying both the intervening cause that land preclude virtually counts is gence liability. is, lord point I, (see supra), and II. I conclude same Parts responsibility here had sole system-wide an al- to defend against maintenance, significant and thus warranty, only pro- leged breach of need control, sense had plumbing exclusive tending prove duce evidence system. See, Bankers Insur e.g., Mutual the defect landlord could not have known of Friedlander, ance Co. v. 262 A.2d in the exercise of reasonable care. (D.C.1970); Nash, Glaude 46 A.2d that, (D.C.1946). pres It follows when IV. sure builds valve the up in a over which case, therefore, turns on present landlord has a pipe exclusive control and notice appellants whether had constructive bursts causing damage one or more or, not, they a defect did when they of apartments, it is reasonable to infer that to these received actual notice. The answer the negligence caused the acci whether landlords questions will determine dent, that, showing by absent a landlord the (1) for abate- responsible can be held legally care, in the exercise of reasonable it could peri- during their the ment of tenants’ rent not have known about the and re defect and apartments the were od uninhabitable sponded prevent damage.9 in time to the personal the damages for tenants’ Finally, ipsa to invoke res the loquitur, property. plaintiff-tenant must show or her that his case, the I would: Analytically, to resolve injury. own actions not did contribute Appellees have met this burden. negli- Hold for 1. that landlord for of of habita- gence warranty and I conclude trial court Accordingly, the first, bility depends, on actual or construc- in declining erred to find the landlord of to dam- giving tive notice the defect rise gent without the the benefit giving tenants age. ipsa of res the loquitur. Similarly, as to count, agree I the trial court is with 2. Rule that notice constructive the “that once has of the tenant established as conditions defined in the apartment compati- his in a have known about is condition landlord could with of of care. implied warranty ble the landlord’s exercise reasonable proof discussing practical of the war- From a stand- burden does not. not, is, ranty habitability, point, the trial stated: the court but landlord valves, position deal with to check or question is Whether this considered Apartment Department, inspect or Water standpoint legal principle practicali- things which do the various ty, must be result is the same: the burden help placed obligation will to establish what occurred. on landlord. hav- His persuasive reasoning, un- ing I do not provide Given this been to and habitable maintain a why apartment, invoke having court noth- derstand the trial declined and the tenant had weeks, ipsa loquitur ing but a inference flooded one for almost two and thus “draw an surely Per- forward with record.” landlord must come the basis explanation why haps some as to he could not the flood was observation that court’s involuntarily) provide (perhaps skep- thing” implied what he had was a “one time court where, especially floods, This is so ordinarily, warranted. attributa- are tical such here, problem originated equipment negligence. ble to which has access and 3. Hold that liability only de- 7.The trial court there was stated pends, notice, in addition to expira- “skimpy testimony trial.” It produced tion of a reasonable repair period without the evidence: summarized repairs, and thus that neither rent abate- 11, 1979, On or October Wein- about ment nor other will be available traub’s was as a result apartment flooded until the landlord has had a reasonable op- from Apart- of a flow of water massive notice, portunity, after to cure the defect. immediately ment above his that, damaged, own. belongings His were Massachusetts, Hold as in liabili- ty he compelled to leave his breach warranty habitability triggered approximately days. twelve solely by or constructive actual mand instead of to but shifted it prove that producing rebuttal evidence evidence require the landlord to come forward with tenant responsibility for gence. ry is attributable to show known of the defect in the exercise of rea- sonable care. Accordingly, reversal and re- gence, the trial court erred in failing to matter negligence common buttal risk of an the tenant’s prima facie ference from this knew, or in the exercise of reasonable care abatement injury. Otherwise, able repair period without present analysis, system-wide control of the plumbing, must could have and attach point, note 4 notice 5. Rule court did landlord has follows It are in order as to both the that a third other of the burden supra, whether we use evidence As to areas). rebutting adverse known, until this and warranty simply defect; too is on properly produce alleged argument the landlord, the expiration that, far, sufficient landlord could is limited to rent remedy judgment system-wide record that party the inference of say imposing plumbing, but, will become available. breach of warranty, as to evidence shift the burden of defect case. that, as in repairs. theories, to rebut the in- on the basis of alleged negli- because of its ipsa the landlord responsible” of a reason- Indiana, under both control It causing over which when inju- tending burden “to negligence negligence runs the does not loquitur At this re- absent (cf. see flooded from the work Weintraub testified that he came home who could not tor and but had on Apartment 502 and knocked rarily subsequently time, his belongings. and saw hand up the mishap. Hart also had little first from the limited record available to the Court, substantially enlightenment Weintraub phraseology. Having no access and Gerald manager for mony cause of the so, the fact again, ^[*] nobody water %L D.C. developed evidence the resident pipes, interlaced with however, was not turned even reported day. Water and that some kind 4! 5j{ Weintraub could being a pressure was though it that” D. witnesses were Weintraub the water had been turned before the flooding off the upstairs. his Finally, atypical it was too late as to what at Department ^[*] Hart, building Jf! a valve which had built found for and other editorialized manager home. He law the facts. all phrases water problem. is not exhaustive. of it ^[*] he found SjS Phillips’ property student, of its Apartment Court He the middle of hearsay, question, provide like “in half an hour supply, on the precipitated had ^[*] then looked s¡s ran genre, was It appears to rescue as to the blockage his testi- By janitor, tempo- valves up being door, ^[*] jani- little ^[*] spite that that unless, who was warranty There evidence to show habitability counts was no record, pressure we can this rule on the merits as at fault in connection with apparently matter of law. on the valve in Apartment flood which flood sub- clause. That clause has part never been a sequently spilled case, over into Weintraub’s appeal, my trial or on until apartment. colleagues applicability its volunteered majority opinion. I do not believe we can as say a matter of law that the landlord met its burden to prima rebut negligence facie cases of VI. true, and breach of warranty. It is as the conclusion, position, In I middle urge a notes, ante at the trial majority rulings between the trial court’s court found “there is no evidence alleged merits of and breach of

flood from Apartment any 502 was more warranty. accept my colleagues’ I cannot ” than a ‘one time thing,’ and that the court ruling Respectfully, the fire clause. could not find “the were in defendants therefore, rulings as to three of this court’s position anticipate it.” The court made I dissent. statements, however, these in the context of erroneously concluding plaintiff- that the

tenants had not carried the burden of estab-

lishing negligence, requiring without

landlord to come forward with rebuttal evi-

dence. the court When focused on

breach of warranty placed claim and

burden on the quite the result was

different, although greater addressed ato

burden than the landlord should have had to carry. See note 9 supra. Petitioner, CO., DELWIN REALTY sum, as to both the counts, I re- would reverse and mand (as fact) for the court the trier OF HOUSING DISTRICT COLUMBIA determine produced whether COMMISSION, al., Respondent. et sufficient evidence tending to show 82-335. No. know, did not or in the exercise of reasona- known, ble care could not have of the defect Appeals. District of Columbia Court in the plumbing system that caused the and, to be uninhabitable as a Argued Jan. consequence, damaged personal the tenants’ Decided March possessions. If the court were to find the showing insufficient to rebut the inferences of negligence and/or breach

warranty, then it would order rent properly

abatement as of the time landlord had

actual or constructive notice of the defect damages,

and order other payment

any, expiration period of a reasonable

(from notice) making the date of re-

pairs.

V. Finally, my summary as noted in at the V;

beginning, agree I do not with Part majority opinion remanding assess-

ment of under the fire so-called

Case Details

Case Name: George Washington University v. Weintraub

Court Name: District of Columbia Court of Appeals

Date Published: Feb 25, 1983

Citation: 458 A.2d 43

Docket Number: 80-137, 80-394

Court Abbreviation: D.C.