Sandoe v. Lefta Associates

STEADMAN, Associate Judge,

concurring:

In the District of Columbia, unlike the rule at common law still in effect in the majority of American states, the normal ordinary negligence standard applies to occupiers of land:¹ reasonable care under all the circumstances. Today, as I understand it, the majority holds that this standard encompasses in all cases (other than with respect to trespassers) an affirmative duty to “inspect” the premises. I think this is too sweeping a formulation.

The word “inspect”, even when coupled with the modifier “reasonable”, carries a rather powerful charge. It has been defined in ordinary American usage, as “1: to view closely and critically (as in order to ascertain quality or state, detect errors, or otherwise appraise); examine with care; scrutinize. 2: to view and examine officially (as troops or arms).” Webster’s Third New International Dictionary of the English Language Unabridged 1170 (1981). There presumably are situations and categories where the duty of a land occupier fairly includes such a concept, and indeed, as the majority points out, the expression has been applied, I think in somewhat a loose way, to the common-law duty owed to an invitee as opposed to a licensee. However, in my view, the correct standard (and one less apt to be misinterpreted by a jury) is generally better expressed simply in the phraseology used by the Restatement in its black-letter text; viz., that a possessor of land is subject to liability if, but only if, he or she “knows or by the exercise of reasonable care would discover the [dangerous] condition,” Restatement (Second) of Torts § 343(a) (1965), or, in the words of the old Standardized Civil Jury Instruction applicable to invitees, that the possessor is liable for dangerous conditions which “are discoverable in the exercise of ordinary care.” Standardized Civil Jury Instructions for the District of Columbia, No. 10-5 (1981).²

The latter is precisely the wording used in the revised Standardized Civil Jury Instructions, No. 10-3 (1985 Supp.) and incorporated in the trial court’s charge here. Furthermore, appellant had full opportunity to argue to the jury that that standard as applied here included a duty to inspect. What might be appropriate under the circumstances of this case would be an instruction including, as a factor for jury consideration, the possibility that the duty of care encompassed a duty to inspect in its ordinary meaning, a matter I would leave for the trial court to consider.³

I fully concur in parts I and II of the majority opinion.

1 . The duty of care extends beyond landowners to all occupiers, whether the feeholder, tenant or otherwise. See Prosser on Torts 386 (5th ed. 1984). The Restatement (Second) of Torts § 328 E (1965) uses the phrase "possessor of land."

2 . The former instruction applicable to invitees included the sentence that “the owner or occupier is not bound to discover defects which a reasonable inspection would not disclose." Carefully read, however, this sentence expressed an outside limitation on the duty of care and did not state the converse majority holding here.

3 . I do not address the issue whether the requested instructions in this case were sufficient, under my view of the applicable standard, to warrant reversal. Cf. District of Columbia v. Mitchell, 533 A.2d 629, 645-46 (D.C.1987).