Opinion
C.A. No. 95C-11-008
Submitted: December 6, 2000
Decided: February 16, 2001
Upon Defendants' Motion for Summary Judgment. Granted in Part; Denied in Part.
Edward Curley, Whitehurst Curley, Dover, Delaware for the Plaintiffs.
Robert K. Pearce and William L. Doerler, Trzuskowski, Kipp, Kelleher Pearce, P.A., Wilmington, Delaware for the Defendants-Third Party Plaintiffs.
Roy S. Shiels, Brown, Shiels, Beauregard Chasanov, Dover, Delaware for the Third Party Defendant.
OPINION AND ORDER
This is a case involving the duties and responsibilities of a landlord to the tenants for injuries sustained following a fire.
Allissia Norfleet, Ryan Norfleet, Aaron Fruits, Ronell Hacket, Stacy Napier, Jeongh Tae Lee, Duk Soon Lee, Won Ki Lee and Hyung Lee (collectively "Plaintiffs") resided on the third floor of Building D of the Towne Pointe apartment complex in November 1993 when a fire occurred. As a result of the injuries they sustained, Plaintiffs in this proceeding seek money damages. Building D is a building composed of eleven apartments on three separate floors or stories. The first story is partially below the grade of the outside ground and contains one apartment and a laundry room. Norfleet, Napier and Lee all lived on the third story in apartments D-9 through D-12. Unfortunately, the three floors were served by one central stairwell, with two doors to the outside on the second floor or story (the first story above the ground level). No fire escapes serviced the outside of this building. Building D was built in the 1960s and was periodically inspected by the Dover Fire Marshall. On occasion the Fire Marshall found deficiencies which were thereafter corrected. None of the deficiencies included citations regarding the complex having only one means of egress, lack of a segregated stairwell, or inadequate fire ratings on unit doors.
The fire of November 7, 1993, started in the mattress of Anthony W. Rich, the resident who lived in the first floor apartment. Rich took the mattress out of his apartment and placed it in the open stairwell. The fire then apparently spread up the stairwell. By the time the third floor residents realized their apartment building was on fire, the stairwell was on fire and could not be used to exit the building. Some of the Plaintiffs, Won Ki Lee, Alissa Norfleet, Ronell Hackett and Stacey Napier, jumped from their windows receiving physical injuries including a broken arm, abrasions and a broken back. Other of the Plaintiffs remained in the building and were rescued by the Dover Fire Company. These Plaintiffs suffered from smoke inhalation.
Plaintiffs then filed suit against Devon-Wedgewood Partners, owners and landlords, and Mid-Atlantic Realty Co., Inc., the operator or manager, (collectively "Defendants"). The Defendants thereafter sued Anthony W. Rich as Third Party Defendant. Plaintiffs claim that Defendants were negligent, negligent per se and breached the warranty of habitability because there was only one means of egress as there was no fire escape. It is alleged that there was no segregated stairwell and the fire doors were not satisfactorily rated resulting in unsafe dwelling units. Defendants deny tort liability under theories of breech of warranty, negligence and negligence per se. Specifically, Defendants argue that they received no citations from the Fire Marshall and claim that the custom in the leasing community is to do no more than is required by the Fire Marshall. Both parties have taken discovery and Defendants now bring this Motion for Summary Judgment.
Superior Court Civil Rule 56(c) states that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment cannot be granted unless after viewing the record in light most favorable to the non-moving party, there are no material issues of fact. The moving party bears the burden of showing that there are no material issues of fact; however, if the moving party "supports" the motion under the Rule, the burden shifts to the non-moving party to show that material issues of fact do exist. In Merrill v. Crothall-American, Inc., the court stated that the "role of a trial court when faced with a motion for summary judgment is to identify disputed factual issues whose resolution is necessary to decide the case, but not to decide such issues."
Sup. Ci. Civ. Rule 56(c).
Moore v. Sizemoore, Del. Supr., 405 A.2d 679, 680 (1979).
Id.
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99 (1992).
Summary judgment will not be granted in cases where the record indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law. Negligence cases do not readily lend themselves to summary judgment. In Ebersole v. Lowengrub, the court reiterated this stating that, "[g]enerally speaking, issues of negligence are not susceptible of summary adjudication. It is only when the moving party establishes the absence of any material fact respecting negligence that summary judgment may be granted." The time for setting factual disputes in negligence actions is at trial by the trier of fact, not in a summary judgment motion.
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 468-469 (1962).
Id. at 468.
The majority of the arguments in this case center around the use of the Landlord-Tenant Code. Defendants claim that there is no common law implied warranty of habitability, that they were not negligent per se, nor were they ordinarily negligent. Plaintiffs oppose all of these arguments. Initially, the Court must evaluate the Landlord-Tenant Code to see what actions may be brought. The case that addresses this issue most distinctly is Hand v. Davis, an unreported Superior Court decision. In Hand, the court synthesized some of the unsettled issues surrounding the Landlord-Tenant Code and established, among other things, the following: (1) the Code creates an implied warranty of habitability; (2) absent negligence, the remedy for breach of the implied warranty of habitability is to calculate the lost benefit of the bargain, i.e. contractual damages; and (3) there is no tort liability for violations of the code unless ordinary or per se negligence is found. In the immediate case, the Court will evaluate the motion to dismiss under claims relating to breach of the implied warranty of habitability at common law, tort liability for negligence per se and tort liability for ordinary negligence.
Hand v. Davis, Del. Super., C.A. No. 87C-OC-6, Ridgely, J. (June 8, 1990) (Mem. Op.).
Id. at 4.
I. Breach of the Implied Warranty of Habitability.
Under Delaware law, the Landlord-Tenant Code contains a warranty of habitability. Whether or not a common law warranty of habitability existed pre-code is unimportant as 25 Del. C. § 5303 (a)(2) has been found to encompass such a warranty. There is no need to imply the existence of a duty at common law when there is an express, statutory duty. What distinguishes breach of warranty from tort liability is the remedy available. The remedy for breach of the warranty of habitability is contractual in nature, essentially being damages for lost benefit of the bargain. Delaware law has not held a landlord liable in tort for personal injuries under breach of warranty without negligence being proven by the Plaintiff; however, it is important to note that the enactment of the Landlord-Tenant Code did not repeal the existing common-law negligence standards. Tort liability also exists for code violations under negligence per se. The court in Hand summarized this idea stating
(a) The landlord shall at all times during the tenancy: (2) Provide a rental unit which shall not endanger the health, welfare or safety of the tenants or occupants and is fit for the purpose for which it is expressly rented; 25 Del. C. § 5303(a)(2).
Brown v. Robyn Realty Co., Del. Super., 367 A.2d 183, 193 (1976).
Id.
Hand at 4; see also, Brown at 188-190 (discussing remedies generally available to tenants).
Hand at 4.
that "the code creates an implied warranty of Habitability, but a breach of the warranty does not in and of itself create tort liability. Tort liability for a code violation exists only if the section of the code sets forth a specific standard of conduct or requires a definite act."
Id.
In summary, under the Landlord-Tenant Code, Plaintiffs have a cause of action for breach of warranty of habitability and a claim for damages in tort for the landlord's actions which are found to be negligent per se. Plaintiffs may also have a cause of action under common law negligence. Since the Plaintiffs in this case seek tort liability for personal injury damages, the Court must determine whether Plaintiffs can prove ordinary or per se negligence.
II. Negligence per se claims.
Generally, negligence per se or negligence in law occurs where a statute enacted for the safety of others is violated. To prove negligence per se, the plaintiff invoking the statute "must show that the statute was enacted for the safety of others and it set forth a standard of conduct which was designed to avoid the harm plaintiff suffered." There must also be some causal connection between the statutory violation and the injury, that is the plaintiff "must be a member of the class of persons for whose protection or benefit the statute was enacted." Of course, to prove negligence per se the plaintiffs must show that the statute in question was violated by the defendant. Once the Plaintiffs case falls under such a statute and the violation of the statute is proven, the duty and breach elements of the negligence claim are presumed. The dispute about negligence per se in this case revolves around determining the elements of a negligence per se claim. Defendants claim that for a statute to be used in a negligence per se claim, the statute must set forth specific standards and not be composed of general rules or guidelines. This Court agrees with the proposition that for negligence per se to be found under the Landlord-Tenant Code, the violated section of the code must set forth a specific standard. Defendants argue that each of the Plaintiffs' negligence per se claims should be dismissed for this lack of specificity in the Code or because the statute requires the use of judgment and discretion by the enforcing authority. The Court will evaluate the statutes which Plaintiffs allege show Defendants to be per se negligent.
Sammons v. Ridgeway, Del. Supr., 293 A.2d 547, 549 (1972).
D'Amato v. Czajkowski, Del. Super., C.A. No. 95C-01-183, Quillen, J., (Oct. 26, 1995), Letter Op. at 2; Wright at 557; Sammons at 549.
Ford v. Ja-Sin, Del. Supr., 420 A.2d 184, 186 (1980).
D'Amato at 2.
Id.
Miley v. Harmony Mill Ltd. Partnership, D. Del., 803 F. Supp. 965, 969 (1992); Lemon v. White Clay Ltd. Partnership, Del. Super., C.A. No. 93C-08-234, Quillen, J. (April 3, 1995), Letter Op. at 4; Hand at 4; Loss Miller, P.A. v. Foulk Road Medical Center, Inc., Del. Super., C.A. No. 77C-AU-33, Christie, J. (March 16, 1981), Op. at 4; Rosenberg v. Valley Run Apartment Associates, Del. Super., C .A. No. 1143, Walsh, J. (April 29, 1976), Letter Op. at 2.
A. The Landlord-Tenant Code.
Plaintiffs claim that 25 Del. C. § 5303(a)(1) and § 5303(a)(2) of the Landlord-Tenant Code support a negligence per se claim. In Rosenberg, the court determined that § 5303(a)(2) does not support a negligence per se claim as it does not set forth specific requirements. This Court agrees that the warranty of habitability in § 5303(a)(2) is a general requirement and not specific enough to support a negligence per se claim. Similarly, § 5303(a)(1) is a general statute in that it assimilates all applicable regulations and statutes into the Landlord-Tenant Code. On its face, § 5303(a)(1) cannot support a negligence per se claim, it must do so vicariously through other regulations and codes. While § 5303(a)(1) acts to incorporate the other regulations it will not support a negligence per se claim by itself. By themselves, neither § 5303(a)(1) or (2) can support a claim for negligence per Se. The other regulations incorporated by § 5303 will be evaluated hereafter.
23 Del. C. § 5303(a) The landlord shall at all times during the tenancy: (1) Comply with all applicable provisions of any state or local statute, code, regulation or ordinance governing the maintenance, construction, use or appearance of the rental unit and the property of which it is a part; (2) Provide a rental unit which shall not endanger the health, welfare or safety of the tenants or occupants and is fit for the purpose for which it is expressly rented;
Id.
Rosenberg at 2.
B. Buildings requiring fire escapes; 16 Del. C. § 7501.
The Health and Safety Act at 16 Del. C. § 7501 states that,
the owner of any building which is more than 2 stories in height and which is used in the third or any higher story . . . as a tenement-house, or when rooms are let to families or lodgers . . . shall be required to furnish such building with sufficient permanent fire escapes from the third and all higher stories.
Defendants claim that 16 Del. C. § 7501 cannot support a claim of negligence per se because it involves the exercise of human judgment. The Court disagrees with Defendants that § 7501 cannot support a negligence per se claim. The statute requires specific acts for buildings that have a certain number of stories. The question that must be answered is whether or not this building had "more than 2 stories." During discovery in this case, the Fire Marshal of Dover stated through affidavit that their office did not enforce this statute at the time of the fire. The Fire Marshal's office also stated that since they became aware of the statute they have begun to enforce § 7501. In order to enforce § 7501, the Fire Marshal had to determine what the statute meant by a building "more than 2 stories in height." The statute did not define these terms so the Fire Marshal used the BOCA Building Code definitions. Applying those definitions to Building D, the Fire Marshal determined that even though Building D has three stories, the majority of the first story is below grade and therefore the building would only be considered two stories. While § 7501 is specific enough to support a claim of negligence per se, the facts of this case do not support such a claim because there has been no violation of the statute.
C. § 10-86(a) of the Dover Code.
The Fire, Heating and Safety Standards section of the Dover Code at 10-86(a) states that "[e]very multiple dwelling shall have at least two (2) means of egress readily available to every occupant." The parties do not dispute that Building D was a "multiple dwelling" or that the Dover Code requires two means of egress. The dispute arises in defining the term "readily available" and determining what constitutes a "means of egress." Defendants' claim that defining these terms requires the exercise of human judgment, more specifically, the judgment of the enforcing authority; therefore, § 10-86 (a) cannot support a negligence per se claim. Plaintiffs argue that there is only one reasonable definition to apply and that should be the reasonable man standard. Plaintiffs also claim that the legislative intent of the Code should be considered as the legislature could not have intended for people to jump out of third story windows as a "readily available" means of egress. A determination of what a "reasonable man" would do is the province of the factfinder at trial. The Dover Code is enforced through periodic inspections conducted by the Fire Marshal. At deposition, the Fire Marshal described how the windows in the third story are a secondary means of egress and were also "readily available." Again, fundamental to a finding of negligence per se is a failure to comply with the statute or regulation intended to ensure the Plaintiffs' safety. As the regulation has a subjective element to it, the Court will defer to the enforcing authorities interpretation of the statute. Similar to the previous statute, 16 Del. C. § 7501, Dover Code § 10-86(a) is specific enough to support a claim of negligence per se; however, the Court will defer to the enforcing authority's interpretation of the terms therein. Therefore, the third story windows in this case comply with § 10-86(a) of the Dover Code and the Defendants were not negligent per se under this regulation.
D. The 1993 State Regulations, NFPA 101 (1988), NFPA 101 (1991), BOCA Building Code (1987), BOCA Fire Code (1987) and the remaining statutes.
Plaintiffs concede that the 1993 State Regulations, NFPA 101 (1988), NFPA 101 (1991), BOCA Building Code (1987), BOCA Fire Code (1987) and the remaining statutes give enforcement discretion to the Fire Marshal. For example, under the 1993 State Regulations the Fire Marshal may require a landlord or property owner to correct problems where he finds a hazard. The Fire Marshal therefore has discretion involving enforcement of the statute and has further discretion as he can allow for alternate means of repair. The issue before this Court is whether statutes giving enforcement discretion to the applicable authorities can be the basis of negligence per se actions. Plaintiffs again argue that the language of these regulations is clear; therefore, the guiding factor should be the legislative intent of the Landlord-Tenant Code. According to the Plaintiffs, a finding that statutes involving enforcement discretion cannot be the basis of negligence per se claims creates an "automatic exclusion" or limiting concept not in keeping with legislative intent of protecting tenants and their rights. The Court questions the usefulness of examining legislative intent to determine the appropriateness of using a statute in a negligence per se claim. Statutes that allow the enforcing authority discretion can be compared to non-specific statutes that will not support a negligence per se claim. Therefore, where a statute requires use of discretion by the enforcement authority the Court will not relieve Plaintiffs' burden of proving negligence with the per se standard. Where statutes, codes or regulations are clearly discretionary and the enforcing authority has used its discretion and not cited the defendant, the Court will not substitute its judgments nor allow the jury to do so, by allowing negligence per se. The Court agrees with both parties that the remaining codes and regulations pertaining to the apartment building involve the judgment and discretion of the enforcing authority. Therefore, because of the judgment and discretion within these statutes, they cannot be used as a basis for a negligence per se claim.
See Discussion of negligence per se at II.
In summary, the Court will grant summary judgment for the Defendant on the counts of the complaint that allege negligence per se. The statutes, codes and regulations applicable in this case do not support negligence per se for one of three reasons: first, they are not specific enough; second, they require interpretation or construction of their terms and as interpreted by the Court there was no violation thereby precluding negligence per se; or third, they involve discretion and judgment by the enforcing authority (which, in effect, means they are not specific enough). The Landlord-Tenant Code provisions in Del. C. § 5303 (a)(1) and (2) do not set forth specific standards and therefore cannot be the basis of a negligence per claim. Both 16 Del. C. § 7501 and Dover Code § 10-86(a) are inapplicable because there was no violation of the statute as interpreted by the Court. The Court chose in this case to follow the Fire Marshal's interpretations of these sections; however, that is not to say that the Court is required to or will always agree with the enforcing authorities' interpretations. Where the enforcing authority fails to enforce applicable statutes or chooses to interpret them in a clearly unreasonable fashion, the Court will search out more appropriate interpretations. Lastly, § 7501 and § 10-86(a), which required statutory interpretation, differ from the remaining codes and regulations because, as Plaintiffs concede, the regulations which remain provide the enforcing authority with discretion. Negligence per se, as exercised in this case, is not intended to be an enforcement tool whereby the Court supplants the enforcing authorities' judgment regarding building, fire and life safety codes. Therefore, in regulations that require the enforcing authority to exercise discretion, the Court will use the enforcing authority reports, citations and remarks to determine if the Defendants complied with the regulations. In the immediate case the enforcing authority did not cite the Defendants for any defects which are causally related to Plaintiffs' injuries.
While the Fire Marshal did not enforce 16 Del. C. § 7501 at the time of the fire, through affidavit he stated how they presently interpret and enforce the statute. Both sides argue the "reasonableness" of third story windows being a "readily available means of egress" under 10-86(a). The facts show that the windows were the means of egress as some people jumped from them and were injured and others waited for the fire company and were rescued. After careful evaluation, the Court agrees with the Fire Marshal's interpretation of 10-86(a).
III. Common Law Negligence Claims.
The Landlord-Tenant Code did not change the existing law in which liability could be found under common law or ordinary negligence. In Delaware, "[t]he duty of a landlord is to maintain the premises in a reasonably safe condition and to undertake any repairs necessary to achieve that end. The duty to repair defects extends to defects the landlord is aware of or should be aware of through inspection of the rental unit." Defendants argue that the Plaintiffs would have to prove the existence of a standard where reasonable landlords do more than follow the Fire Marshal's recommendations. In support of this, Defendants claim that to allow the jury to find negligence based on the Code would be substituting their judgment for that of the proper enforcing authority (the Fire Marshal). Inherent in this argument is the idea that the building, fire and life safety codes establish the minimum, baseline level of care required of landlords.
Hand at 4.
Hand at 2, citing, Ford, 420 A.2d at 186; Loss Miller at 4.
Under the common law, the question is whether or not the landlords were ordinarily negligent. Determining ordinary, landlord negligence requires a factual determination concerning whether or not the premises were maintained in a reasonably safe condition. Defendants? concern is that they might be found to have been negligent even though they were never found to be in violation of the codes by the enforcing authorities. Therefore, Defendants argue there can be no negligence without proof that the standard in the rental community is higher than the minimum mandated by the applicable building, fire and life safety codes.
Much of the support for the Defendant's argument is from the case of Miley v. Harmony Mill Limited Partnership. In Miley, a tenant sued his landlord after he fell through a plate glass shower door. The court dismissed the issue of negligence per se because the glass doors used were proper under the BOCA code in existence when they were installed and later BOCA codes did not require replacement. of particular interest to this case is the court's finding that under standards of ordinary negligence "a question of fact still exists as to whether or not the standard of care in the real estate community is higher than the minimum standard mandated by the BOCA National Building Code."
Miley v. Harmony Mill Limited Partnership, D. Del., 803 F. Supp. 965, 970-971 (1992).
Id. at 970. The Court went on to say, "However, in order to succeed on this negligence claim, the plaintiffs must offer evidence that there was a higher standard of care in the leasing community than that mandated by the BOCA building code regarding pre-existing uses. In effect, plaintiffs must prove that defendant was negligent in continuing to have non-tempered glass in the shower doors in its apartments despite the fact that the code specifically authorized the continued use of such doors and no accidents had been reported in their 20 years of use." Id.
The landlord's duty under the common law is to keep the premises in "reasonably safe condition." In the case of Kupendua v. Emsley, a landlord's removal of lead-based paint case, the court explained that the duty of landlords extends to defects which they knew or should have known existed through reasonable inspection. The landlord's liability "turns on a determination of two issues: (1) the existence of a "defective condition' and (2) the landlord's actual or constructive 'notice' of the defective condition." The notice requirement is further "premised on a finding of what constitutes "reasonable inspection,' and the reasonableness of an inspection is usually a question of fact for the jury." In the case sub judice, Defendants argue that there was no "defective condition" because there are statutory standards to aid in determining what constitutes a "reasonably safe condition." The Defendant landlord received no violations from the Fire Marshal which are causally related to the injuries which occurred in this fire.
Re: Kupendua v. Emsley, Del. Super., C.A. No. 94C-03-022, Quillen, J. (July 24, 1997) (Letter Op.).
Id. at 3.
Id.
Id. at 5.
The Court agrees that where statutes address the alleged negligent actions (the alleged defects), the statutes form a minimum, base-line duty. The deficiencies in Building D alleged by Plaintiffs were not in violation of the applicable codes when built nor were they features required to be updated and corrected by later codes at the time of the fire. To prove ordinary negligence, Plaintiffs must show that the alleged deficiencies would be considered a "defective condition" by a reasonable landlord. Similar to Miley, the Plaintiffs here must also prove the landlord had notice, whether actual or constructive, about any conditions of the building which the fact finder determines to be defective. Mr. Schneiders, the Plaintiffs' expert, expressed his opinion at deposition that certain features of Building D were defects and these defects were causally related to the injuries sustained by Plaintiffs. In addition to proving that defects existed in Building D, Plaintiffs must also persuade the fact finder at trial that the landlord had notice of these conditions. Questions of negligence and notice are the province of the fact finder at trial. In an ordinary negligence claim, the jury determines whether the means of exit from the burning building resulted from what would be considered a defective condition by a reasonably prudent landlord.
The Court is satisfied that material issues of fact remain as to the Defendant landlords' duty to act reasonably beyond the minimum requirements of the codes. Therefore, summary judgment will not be granted on the issue of common law negligence.
Defendants' motion for summary judgment will be granted as to the negligence per se claims and denied as to the remaining claims.
IT IS SO ORDERED.