Opinion
No. 340.
March 20, 1946. Rehearing Denied April 1, 1946.
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Maurice R. Weeks, of Washington, D.C., for appellant.
James E. Artis, of Washington, D.C., for appellee.
Before CAYTON, Chief Judge and HOOD, Associate Judge.
This appeal involves the propriety of an order directing a verdict for defendant in a suit brought by an apartment-house tenant against his landlord to recover damages for the flooding of his apartment.
On the morning of the happening of the damage, a plumber employed by defendant shut off a main supply valve without giving advance notice to the tenants. Later in the day, when he had completed his repairs, he turned on the supply of water and again gave no notice to the tenants. There was conflicting testimony as to whether the landlord had on previous occasions notified the tenants when the water supply was to be shut off. On this particular morning a Mrs. Harris, mother of the tenant in Apartment 206 (which was directly over plaintiff's apartment), went to that apartment to do some cleaning. She turned on the kitchen and bathroom faucets, and discovering that there was no flow of water therefrom, nevertheless left the faucets open, and they remained open when she left the apartment about an hour later. When the main supply was turned on, the water overflowed onto the floor of Apartment 206 and through the ceiling of plaintiff's Apartment 106, causing plaster and water to fall and damage plaintiff's furniture.
It was upon this showing that the trial judge terminated the case by instructing the jury to return a verdict for defendant. In a memorandum overruling a motion for new trial the judge set out, among other things, his view that there was no evidence establishing liability in the defendant for the alleged negligence of the plumber, and that he was satisfied the proximate cause of the damage was the failure of Mrs. Harris to turn off the faucets in the second-floor apartment. We must hold the ruling erroneous.
In the case before us it cannot safely be said, as a matter of law, that defendant was free of liability. In Bailey v. Zlotnick, App.D.C., 149 F.2d 505, 506, it was held that a landlord is "under a duty not to create an unsafe condition on the premises either permanent or temporary by any affirmative action on his part" and that the landlord is liable for damages caused by an independent contractor if the landlord had a duty to the person injured which the independent contractor failed to perform in his behalf.
Here the landlord ordered the plumber to make repairs which would, or probably would, require cutting off and turning on the water. If while the water was off, faucets were left open and unattended, the later turning on of the water would result in or create an unsafe condition. It is for such unsafe conditions that landlords are held answerable whether the conditions were created by the landlords personally or by their independent contractors.
Under that rule we think the instant case presented three questions of fact for the jury:
(1) Should the landlord in the exercise of reasonable care have anticipated that while the water was off a faucet might be left open and unattended, and that the turning on of the water might bring about damage to a tenant or his property? Foreseeability of such an event is ordinarily a jury question.
Motz v. City of Akron, 22 Ohio App. 98, 153 N.E. 868; Robertson v. Monroe, 80 N.H. 258, 116 A, 92; St. Louis, S. F. T. R. Co. v. Gore, Tex.Civ.App., 69 S.W.2d 186.
(2) If question (1) is answered affirmatively, did the landlord or the plumber, acting in his behalf, fail to use reasonable care to prevent the damage which occurred? Reasonable care is practically always a jury question.
(3) If question (2) is answered affirmatively, was the failure of the landlord a proximate cause of the damage to the tenant? This question of proximate cause we shall discuss at greater length in a few moments.
It should be noted that in Bailey v. Zlotnick, supra, the landlord was under no initial duty to repair. Here the case is stronger for the plaintiff because we are dealing with an apartment-house tenancy where the plumbing system was under the control of the landlord, who thus had the obligation of maintaining it in proper repair.
Compare Hariston v. Washington Housing Corporation, D.C.Mun.App., 45 A.2d 287, and cases there cited.
Under all these circumstances we think that fair-minded men might honestly draw different inferences from the facts as given. "When different conclusions as to negligence can reasonably be drawn from the admitted facts, it is not for the court to instruct the jury as to which is to be adopted by them."
Hennessey v. Bingham, 125 Cal. 627, 58 P. 200, 202. Cited with approval in Stockwell v. Board of Trustees, 64 Cal.App.2d 197, 148 P.2d 405. See also Towles v. Arcade-Sunshine Co., Inc., D.C.Mun.App., 32 A.2d 870; Eclov v. Dalton, D.C.Mun.App., 38 A.2d 661, 846; Yellow Cab Co. of D.C., Inc., v. Griffith, D.C.Mun.App., 40 A.2d 340; Canada Dry Ginger Ale Co., Inc., v. Jochum, D.C.Mun.App., 43 A.2d 42.
We also think it was error to hold that the negligence of Mrs. Harris in leaving the faucets open was, as a matter of law, the proximate cause of the damage. "The true rule is, that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it." Milwaukee and St. Paul R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256. To the same effect is Chunn v. City Suburban Railway, 207 U.S. 302, 28 S.Ct. 63, 52 L.Ed. 219. We see nothing in the circumstances of this case which would take it out of the operation of the general rule just cited.
Could the landlord or his plumber have foreseen that, not having been warned of the turning off and turning on of the water, some tenant might leave faucets open and cause a flooding of the premises? Did their failure to foresee that possibility amount to negligence? Was such negligence followed in unbroken sequence by the negligence of Mrs. Harris? These, as we see them, were all jury questions, because they were reasonably open to honestly differing opinions and inferences.
"This question of proximate cause is so fundamentally one of fact and inference that, even where, as here, there is no serious dispute about the material facts, it should be left to the jury if it is open to a reasonable difference of opinion."
Edgecomb v. Great Atlantic Pacific Tea Co., 127 Conn. 488, 18 A.2d 364, 366. See also Worcester v. Pure Torpedo Co., 7 Cir., 140 F.2d 358; Illinois Central R. Co. v. Siler, 229 Ill. 390, 82 N.E. 362, 15 L.R.A., N.S., 819, 11 Ann.Cas. 368.
NOTE: In Nunan v. Bennett, 184 Ky. 591, 212 S.W. 570, the court reached a different conclusion; but we are satisfied that the other cases we have cited state the applicable law more correctly, and that logic and reason support the view we have taken.
The Supreme Court (in Milwaukee and St. Paul R. Co. v. Kellogg, supra) has summed it up thus: "In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are naturally and probably connected with each other by a continuous sequence, or are dissevered by new and independent agencies, and this must be determined in view of the circumstances existing at the time."
From what has been said, we conclude that the plaintiff made out a case for the jury, and that the defendant was not entitled to a directed verdict.
Reversed, with instructions to award a new trial.