Solomon C. Curtis v. District of Columbia, a Municipal Corporation, Cora A. Geiger and Elizabeth G. Delaney
363 F.2d 973
D.C. Cir.
1966
Check Treatment

*1 CURTIS, Appellant, C. Solomon COLUMBIA, Municipal

DISTRICT a OF Corporation, Geiger A. and Eliza Cora Delaney, Appellees. beth G.

No. 19428. Appeals

United States Court oí District of Columbia Circuit.

Argued Nov.

Decided Feb. Rehearing

Petition for En Banc Denied March Washington, Leeman,

Mr. P. Herbert C., appellant. D. for Corp. Barton, Asst. Richard W. Mr. Columbia, with District of Counsel for Corp. Gray, H. whom Messrs. Chester argument, Milton time Counsel at the Corp. Korman, Principal Coun- Asst. D. sel, Pair, Corp. B. Asst. and Hubert brief, appellee Counsel, District of Columbia. Washing- Doherty,

Mr. Cornelius H. Geiger ton, C., appellees and De- laney. Pretty- Judge, Bazelon,

Before Chief Fahy, Judge, man, Senior Circuit Judge. Circuit Prettyman, Judge, Senior Circuit Judge: FAHY, Circuit dissented. judgment appeal en- from a This U.S.App.D.C. See also defend- for the tered on verdict F.2d 566. Geiger Columbia, A. ants District of Cora Delaney, appellees in Elizabeth G. Appellant, plaintiff court. damages Court, District sued

juries consequent walk- a fall when covering of which over a in front of property defend- the individual owned alleged caused He his fall was ants. cov- projection ering level of inch about an paving. he contended the sidewalk duty of Co- of the District violated the reasonably keep lumbia to the streets condition, of Columbia safe District Nordstrom, *2 974 Building 22(h) individual Code for of the 1951

327 F.2d Columbia, maintain which reads: to District to use placed in a structure in a condition safe paving be over vaults shall The special use. own for their according specifications to laid Bank, 101 National v. Anacostia Merriam U.S.App.D.C. Highways for sur- the Director of 596; 190, Robert- F.2d 247 paving and shall conform with face 850, Co., Ga.App. Liggett Drug 81 son v. grades. cov- All such the established erings 60 S.E.2d toas shall be so constructed pavement, and have flush roughened be with the appellant’s con notice firstWe to minimize surface a slipping invalidly jury com was tention that persons passing by over objected panel from posed. He Pavements them. over con selected was which expense risk of the laid at the entirely employees of the almost sisted abutting property, owners of no findWe United States Government. special permit has or order until overruling objection. of this error in the High- by the Director been issued Slingland, System, Inc. v. C. Transit ways. The roof of a vault between 465, 264, 72 F.2d 266 105 building lines at shall curb 819, 1290, denied, U.S. cert. 361 A.L.R.2d place 4 inches below no be less than Slingland 62, The 4 80 S.Ct. L.Ed.2d grade approved walk at that side upon v. States ease relied United in turn point. 177, 123, L. Wood, 81 57 299 U.S. S.Ct. prior had been constructed v. United And Frazier Ed. 78. see adoption provision, to the 201, 497, L. States, 69 93 335 U.S. S.Ct. court, initially ad- reason the after 907, denied, rehearing 187, U.S. Ed. 336 mitting on reconsidera- 488, 93 L.Ed. 1072. S.Ct. ap- tion excluded it as retroactive in Appellant error in the also claims plication. upon The court relied Jones permit counsel court to his refusal of the Columbia, D.C., F.Supp. District of argument rebuttal to the read regulations 438. The there fire consisting plaintiff’s 1, let Exhibit under consideration held retroac- Com ter his counsel to the written legislation authorizing tive because their Columbia. missioners of the District of provided covered structures and, days the fall It was dated five after legislation ef- when the became 12-208, compliance with D.C.Code § fective. The court was called plaintiff’s advised building question to decide the whether the letter claim. Permission read regulations authorized 1- D.C.Code § sought an means of was 228,1 were or were not retroactive. swering coun a statement to the Therefore, opinion what was said sel for the individual defendants regarding present regulations, rest- plaintiff certain witness for “concocted” ing upon 1-228, Section was not neces- testimony about the weather conditions sary to the decision. And affirmance day from other Aside fall. appearing in Jones District of Colum- possible objections admissibility the its bia, U.S.App.D.C. 301, contents of the did not rebut the letter anything neither nor discusses decides argument referred to. respect retroactivity. legislative A authority substance. final contention has more building regulations, 1-228, Article Plaintiff offered in evidence 406- D.C.Code § Regulations. regulations 1. § 1-228 Such rules and made as provided the District shall have the same force Columbia, are authorized and directed to and effect within District of Colum- regula- building by Congress. (June 14, make and enforce such as if bia enacted they may part, tions said District cli. 1 in Stat. deem advisable. 2.) lay garding broadly provisions But we aside worded. its permits question the Com- introduced on the whether regulations building apply provisions evidenced a standard missioners to retroactively; accepted practice lan- for in event the architectural guage (h) Mc- of Article measure or not which to whether *3 building] Building itself, insofar as here of the Code Pherson [owner pertinent, par- do not indicate that care in maintain- had exercised due applied stairway, though, such, ticular intended to be Article was previously Thus to structures installed. not violated. This code was support maintenance condition not in 2 of an of finds conformity Harper James, in it would not consti- & at 1006 with Torts 17.6 § (1956). tute a violation of the Article. evidence was We think the degree admissible as relevant to foregoing prob- end required; care to avoid of lem; though regulation, vio- confusion itself the court should lated, was evidence of a standard which have made clear that non-conform- determining jury could consider in of code ance with the standards whether the had exercised due defendants was not evidence of code violation. according respective respon- to their danger misunderstanding sibilities. The have should in im- a matter of critical accompanied been admitted with an portance negligence on the issue struction, requested, if it could be required such an instruction if re- only considered with other evidence but quested, adequately and McPherson purpose for the limited indicate. Ex- we requested it. perience expertise had combined to lead the in to decide Prosser, Torts, In at 203 formulating the 1951 Code that 1964), following appears sub- safety by requiring would be served vault ject evidentiary of the of a statu- value coverings in sidewalks to flush with tory though standard, the statute is paving. the sidewalk This action of directly applicable protection to the responsible public relevant authorities is particular plaintiff: determining in the common law standard * * * where statute does set of care to be observed although precautions, up standard safety pedestrians. As protection a different said, the individual defendants —and also persons, prevention of class of or the the District of Columbia —cannot be held may risk, a distinct be a rele- regulation, have violated the for which bearing having fact, proper vant reason predicated cannot be upon the reasonable conduct merely upon nonconformity with its circumstances, man under the visions. But the advent into to con- bearing of this evidence of a standard is, words, sider. There in other upon the issue of due care need not be statutory custom, which is entitled to ignored entirely in case. As we have admission as evidence. comparable said a somewhat situation Edmonds, Vojka, U.S.App. Inc. v. James, And to similar effect see “Statu- 109, 111, D.C. tory Negligence in Acci- Standards Cases,” [the code 1951] was formulated dent 11 La.L.Rev. 114-116 long building (1950), “Legislation after Alexander, was con- structed, retroactive, Negligence,” and was not so the Standard Care

that of course it was not violated. 42 Canadian B. Rev. Nevertheless, (1964).2 extensive evidence re- 2. That view we take of the admissibil- authorities cannot be denied. ity example, aspect gen- is not one which can a kindred uniformly accepted by problem, Evidence, Wigmore, said to be eral ignore colleague any consequences dissenting are free of fendants would Our although violating regulation altogether, has such as safety prescribed by penalties 109 and Sections to do with of sidewalk Building Code,3 coverings. his of the 1951 109-A D.C. He relies in remedying possibility difficulty trial court appraisal that the previously existing instruct the violation situation. safety other constitutes this. No record silent per atten- se.4 of its has come to our case tion; kind speculate we and were we also to Commissioners, fact The central coverings incline think vault duty in expertise and with officials matter, hinges projecting an inch above interest decided surrounding pavement are at least protrusions should such *4 City made numerous in this could be and construction. prohibited in future be expense. little safer with We bear these that it follows From this mind too that these are the held may appropriately be provisions special adjoining property use the as of themselves competent, not in and owners. negligence, evidence as evidence jury of a standard position is Our construed in the dissent the defendants conduct of measure the determining promulgating requirement as as to that they exercised whether existing previously construction required situation. care the law vaults, which the refused Commissioners to do. But the did not Commissioners question recognizes that The dissent pass upon evidentiary question. Neverthe- court. of evidence is District concedes that evidence deciding question says that in less it hinge trusion of the on was admissible unlawful that it is the court decides negligence. the issue of position This correct existing have previously condition could not incorrect become This conclusion maintained. been being though described as it were reasoning lawful it that reached promulgation requirement aof as to regu- negligent hold the to be that vaults; construction too so admissible, lim- for the even lation to be description ruling such a admissibility of our it, is purpose to confine ited which we regulation cannot were hold in effect to that ruling render the incorrect. negligent jury ex- cannot be since the deciding distinguish pected to between explicitly did Commissioners negligence for themselves the issue express regulation an intention that the regu- being allowed consider apply previously would not constructed determining vaults, though lation in the standard we hold that it does By like care defendants should observe. apply. so Even had the Commissioners reasoning precluded explicitly expressed they intention considering from evidence that thereby would not taken from the have projected pavement an inch responsibility deciding court the so, since if as the Dis- question do as to the proper, trict concedes to in evidence. in- Since it is not might persuasive find as such evidence terpreted retroactive, however, to be de- they have balanced the 461, No doubt 1940); at 500-61 and Fin- though danger, possible of lim- negan Royal Realty uncertain Co., Cal.App., v. character, then of vaults ited P.2d against fines for noncom- burden of provisions These carried over to the pliance; alteration lack need for 3-173(a), D.C. Code in § protrusions slight; where the (b). Congress had authorized doubt building regula- to make considered might of this sort retroactive. matter well have decided tions retroactivity against for several reasons. negligence negligence. in found such also Evidence is not held injury. might proximate We cause of the the de admissible because affect issue either as how the ad timate no view to it is cision on the issue as to which proximate cause Moreover, or missible. the view that upon properly decided. hold We cannot relied regulation may be considered limit its consideration of the evidence ul- purpose we have stated instructed in con limited court is not formity previous timate issue of with dis decisions tinguishing it between evidence which and remanded. Reversed proves self which in some Judge manner bears the issue. PRETTYMAN, Circuit Senior g., Edmonds, supra; e. Vojka, Inc. v. (dissenting): Peigh Co., Baltimore & O. R. 92 U.S. disagree my on this I brethren App.D.C. 198, 204 F.2d A.L.R.2d case. 671; McLaughlin, Hecht v.Co. 93 U.S. (Article agree App.D.C. 382, Compare 214 F.2d 212. and there- (h)) not retroactive Hartman, Ross to this specifically apply fore 158 A.L.R. 1370. not violated. case; itself dissenting opinion, regulation admissible holds The court noted, part upon difficulty relies in de- declaration of an official *5 remedying of the situation. Notwith- re- due fining of the element one standing partial upon this reliance mu- and the property owners quired of problem up- economics damages. of the rather than in they liable nicipality lest on evidence, of brother, rules our hinge which a concerns case inconsistently somewhat vault-covering respectfully a inch above one truded suggest, opposes position by describ- to it so To reset in the sidewalk. resting upon it as public a thesis of pavement” would with a “flush it make good serving theory the ends of a it, social indeed, I see job; quite a personal injury that all pub- a type of cover a different installation burden, lic neg- maintaining rather than dis- necessary. no is There would be ligence as liability. Neg- the criterion of hinge alone means which cernible ligence is, indeed, the criterion of lowering lia- Merely lowered. could be bility, if it proximate is shown to be a danger; pedes^ not cure door would injury. cause of the Two of defend- over stumble liable to still be trians would ants are property individual owners who hinge. And, the door if protruding special have a responsibility for the vault top of make to so as were lowered covering. They are not sued to shoulder sidewalk, flush with public a burden and could not be made to the sur- be sunk below would door whole do so. against there recovery is to be creating dan- sidewalk, real rounding a them it proof must be of their own had ger. The Commissioners proximate as a cause of in- when mind in these considerations jury. The defendant, District, other ap- requirement notably make the did not is sued municipality as the responsible existing plicable vaults. to under well established law for the re- says failure that court When of the streets. It is public not sued aas protru- hinge, its retract place or to body required to make whole a loss suf- negligence on the sion, evidence is fered injury result of for which it District, is it and of the owner responsible. was not refrained doing what directive against doing. Should its casts find it While the de- from (and ruling fendants evidence on negligence, issue of form re- really covery by plaintiff competence), it is compensatory its dam- thus within ages to the injury requirement promulgating a suffered reason How- fall vaults. would not follow unless construction rulings may ity by any authority supported I be in is two ever dissimilar semantics, cogently pointed in out2 actual can find. It is or abstract reading ruling protrusions on that an into an enactment practicality intent that a carrying vault-coverings con flush with must made which fails state it ruling pres- beyond permissible limits. pavement a that struction and protrusion use a strik authors of ing figure cited a textbook ence such speech person re- will-o’-the A the same. —“the legislative wisp intent quired not to nonexistent do Thayer Certainly negligent. property owners once comment ion”.3 Professor ed, I any, speculation un little, And sort as to if “But this see difference. will danger legislative grasp expressed the fine is only intent think a business, permissible instruction ous embodied within distinctions regu- limits; tendency by my required over brethren. Once narrow evidence, responsible indulge would almost for much of the it is lation is in inevitably present give I am not In the Indeed the law.” it effect. confusion myself quite line did not make is be- case sure what existing giving requirement applicable their tween considering effect judgment It it as evidence of vaults. their dangerous re latter with such were so as to I know we enshroud the vaults evidence”, quire remedy. They express an but did not “all other references to regard suppose any not flush with I tangle intent that do not of us required pavement were violative as defini- of varied circumstances Nevertheless, people an many due absent such I learned care. tive. glory know that expression part, now implicit their the court in cave- in the refinements speculates intention juries that was their ats in the face clear directed classify violative of the evidence, those vaults as I distrust them absolutely prop approve to the care owed them where erty necessary. think owners the District. speculation, it is unwarranted is supported *6 court re authorities to by any authority not I can them, point, fers on and others like find. problem whether a directed to the good Undoubtedly applicable to statute or protrusions iron served if all these action involved in tort situation doors on the were made sidewalks negligence. may be used as evidence of underlying smooth. thesis Wig- The answer debatable. Professor is me, opinion, it is court’s seems to more, example, such use condemns public good rather should than may, But, unwise.1 be that as it liability. be the criterion of serves agreed at did case bar it is of that which holds ends social apply. problem not in the So that injury pub- personal that all be a should proposition case. The here is that the although But, strongly lic burden. be- although applicable, ad capacity lieve in common missible as change to needs, itself to accommodate new only premise change it seems to me that this repre- event is that the enactment from established standards too cata- clysmic wrought sents of care re- an official declaration to be in a sudden shift. quired. apply, I hold to criterion for damage. expressed, liability or if or if the intention I would leave the only vaguely expressed, problem it be admissibil- Commissioners, with who Id., Wigmore, 461, par. 6, pp. 1. 2 Evidence 3. n. 5. 1940). Wrong Action, Public and Private 4. Harper e. g., James, 317, 320, (1914). 2. Torts Harv.L.Rev. 17.6, p. 995, (1956). nn. responsibility for the condition power under streets and also the Congressional grant design im- pose the remedies.

I would affirm. GRABOIS,

Annette G. Committee Property of Marian the Person Person, Grosner, Appellant, an Insane

Frances K. American GROSNER and Company, Security and Trust

Appellees.

No. 19499. Appeals

United States Court of

District of Columbia Circuit.

Argued Dec.

Decided Feb. Rehearing

Petition for the Divi- before Rehearing sion and for Banc En Denied March *7 Wallick, Washington, D.

Mr. Robert C.,D. whom Wal- Messrs. Earle W. Murray, Washington, F. lick and John brief, appellant. C., D. Washington, Owen, B. Mr. Roberts C., appellees.