In a complaint filed in the District Court, two causes of action were asserted in respect of the fall by a small boy, 2 1/2 years old at the time of the accident, from the third-floor window of an apartment house. One was by the boy himself for damages suffered by him as a consequence of the fall; and the other was by his mother for medical expenses incurred by her in treating his injuries. The jury found for the boy in the amount of $2,500, but it held against the mother. This appeal is from the trial court's failure, on motion of the defendants, either to give judgment for defendants as against the boy despite the jury's verdict in his favor, or to order a new trial of his claim. The principal issue on this appeal is whether the trial court, after having found the boy to be a trespasser upon defendants' premises as a matter of law, erred in permitting the jury to pass upon the question of defendants' liability to him. We hold this not to have been error and affirm the decision of the District Court, but we recognize that the finding as to trespass calls for careful scrutiny of the facts giving rise to the injury. Thus, we examine them at the outset.

* Defendants are the owners and operators of rental housing accommodations. In March of 1960, they leased an apartment to one Mrs. Dodd for use by her and her two children. In June of 1960, Mrs. DeBeve and her son Jacques (the boy subsequently injured) came to stay with Mrs. Dodd temporarily. Shortly thereafter Mrs. DeBeve decided to remain indefinitely, under an arrangement with Mrs. Dodd whereby the latter was reimbursed for one-half of the rent paid by her to defendants. This arrangement was not made known to defendants nor consented to by them in any way. It was, in fact, contrary to a provision in Mrs. Dodd's lease which restricted permanent occupancy to Mrs. Dodd and her family; and it was because of this lease provision that the trial court ruled the two and one-half year-old boy to be a trespasser in legal contemplation.

The accident occurred July 6, 1960. The DeBeve boy and the Dodd children (aged approximately three and five) were getting dressed for bed in one of the bedrooms, and Mrs. Dodd and Mrs. DeBeve were seated in an adjoining room. A bed was next to the window, which was open but with a screen in place. Suddenly one of the Dodd children screamed and said 'Jackie fell.' On entering the bedroom, the mothers found the screen gone from the window and the DeBeve boy fallen through the window to the ground three floors below.

There was uncontradicted testimony to the effect that the screen was warped and cracked, and that it did not fit securely into the grooves in the window frame because of the rotting away of the latter. The screen had fallen or been knocked by a child from the window on earlier occasions; and there was testimony by Mrs. Dodd, corroborated by Mrs. DeBeve, that the former had on several occasions notified defendants of the hazard represented by the screen and urgently requested that suitable repair or replacement be made.1 The absence of any response to these appeals had caused the window to be kept closed as a safety measure, but it was open on July 6-- the day of the injury-- because of the extreme heat. The lease obligated the landlord to make all repairs required on the premises, except those necessitated by damage caused by the tenants.2

These, then, are the circumstances in which the trial court accorded the status of trespasser to the 2 1/2 year-old boy and proceeded to define the legal obligations owed to him in that capacity by defendants. There is no attack here upon the finding of trespass and, for purposes of this appeal, we must accept it as technically accurate. But, on these facts, we are vividly reminded that the concept of trespass, like other legal abstractions, casts its net very widely indeed, and that meaningful classification for particular purposes can only begin after the catch and not before. There are, obviously, trespassers and trespassers. The poacher upon the manorial estate of 18th Century England-- that figure about whom revolved so much of the developing law of landowners' liabilities to unauthorized visitors-- defies identification with the child in this case, albeit a common legal label has been affixed to them.3 The manifest differences between them suggest strongly that projecting the label from the one to the other can not rationally be an automatic determinant of the result in each case in which injuries attributable to the landlord have been sustained.4

But, as the appellee here does not resist the designation given him by the trial court, so the appellants do not quarrel with the court's instructions to the jury as to the measure of the duty owed by a landlord to a trespasser. These were lengthy and detailed and may best be described in the court's own culminating words:

'(The plaintiffs) must prove by a fair preponderance of the evidence that the defendant was guilty of wilful or wanton misconduct which proximately caused the injuries to the child. * * * Wilful or wanton misconduct is defined as wilfully performing or wilfully failing to perform any act with knowledge that the performance or non-performance of that act was likely to result in injury, or performing or not performing that act with ruthless and wanton disregard of its probable consequence.'

Appellants complain, we repeat, not of what was said to the jury by way of definition of their duty, but of the opportunity given the jury to weigh that definition against the proof produced. The contention, in short, is that, on the evidence received, no jury could rationally find a level of fault rising to that established in the instructions. We are no more persuaded of this than was the trial judge.

Defendants were in the business of owning and operating rental housing. By their own contractual undertaking, as well as by reason of legislative command, they were obligated to provide and maintain decent and safe quarters where ordinary life might go on. That obligation certainly comprehends, in the Washington summer when windows must be raised, screens which keep flies out and young children in. There was substantial evidence that the screen was defective in respect of its safety function; and there was also corroborated testimony (which appellants in their brief say 'for purposes of this appeal must be conceded as true') that defendants had repeatedly been notified of the dangerous condition of the screen and requested to discharge their obligations with respect to it. These requests were ignored, and what was feared would happen did happen. We think a jury might well have concluded from these facts that defendants were guilty, in the language of the instruction, of 'wilfully failing to perform (an) act with knowledge that * * * non-performance of that act was likely to result in injury.' We think, in any event, that the trial court committed no error in leaving the matter to the jury to decide.

Had the DeBeve boy been one of Mrs. Dodd's children, there would seem to us to be little question as to the crystallization on the evidence of a jury issue. We do not think calling him a trespasser dictates a different result.5 He was well within the range of foreseeability in terms of those persons to whom injury might result from an unsafe screen, and, at least as to him, we do not think that the terms of the lease are the outer limits of defendants' vision. His mother might have been required to remove him and herself from continuing residence in the apartment, but he appears to us to be one of the many children, of differing legal relationships to the premises, who were likely to be physically present in it, and for whom the defective screen presented a hazard.6 To hold otherwise would be to ignore reality in favor of technicality in administering justice.

One who puts his land to profitable use by building apartments and inviting significant numbers of people to lead their lives therein inevitably takes on an aspect different from the country squire who wants mainly to be left alone on his rural acres. Those who come without express permission on the premises of each also have differing guises and purposes. Defining the liability of the one to the other cannot be divorced from the factual context, nor can the law be sensibly applied in this area without taking account of diverging circumstances. There obviously continue to be many situations where an intruder upon the property of another will not be covered by the law of negligence. All we hold here is that this 2 1/2 year-old boy was not such an intruder upon defendants' premises as to be beyond the reach of defendants' duty to accommodate those premises safely to the incidents of normal living.

Over and above the central issue of liability to a trespasser discussed hereinabove, defendants urge other errors as requiring reversal. We have considered them and found them insubstantial. One appears to go to the trial court's treatment of contributory negligence and assumption of risk. Full instructions were given on these matters, but the court pointed out that these could operate only to defeat the mother's claim (which, in the light of the differing verdicts returned, presumably it did) since they were not imputable to the boy. We believe this to have been correct.

Objection was made below to the failure of the court to give an instruction as to an intervening cause of the accident, founded upon the failure of the two adults to do all that they might have done to prevent it. But this appears to be in essence a variant of the contributory negligence or assumption of risk point, and we do not discern any prejudicial error to be present here. The court gave full and proper instructions on the concept of proximate cause and, as we have stated above, there was evidence from which the jury could, without simply indulging in sentimental speculation, have found a continuous connection between defendants' culpable omission to act and the injury to the boy.

Affirmed.

WILBUR K. MILLER, Circuit Judge, dissenting.

The language and length of the foregoing opinion demonstrate the difficulty the majority met with in affirming a judgment which was based on sympathy instead of legal liability. In the circumstances, the appellant owed Mrs. DeBeve and her child no duty whatever with respect to screens; they were plainly trespassers, as the District Court said and as the majority opinion says.

Even as to an actual tenant, the appellants' only duty under 2806 of the Housing Code1 was to provide screens which would effectively keep insects out. I think the majority err in adding another requirement: that owners of residential buildings must provide 'screens which keep flies out and children in.' This addition is unjustified under applicable regulations or otherwise. The notion that screens are to 'keep children in' has no foundation whatever, as far as I know. The Housing Code does not require screens to be of such strength as to form protective barriers which will withstand the violent impact of a child's body. As we said in Peigh v. Baltimore & O.R. Co.:2

'* * * Violation of a regulation does not, ipso facto, give rise to civil liability unless the regulation is one designed to prevent the sort of harm to the individual relying on it which has in fact occurred. * * *'

The regulation here involved was promulgated, as its terms clearly show, to require screens for the protection of tenants against flies and mosquitoes during the season when such insects appear. It was not designed to prevent the sort of harm which occurred in this case: the safety of children was not its goal.

Leaving small children, unattended, to play on a bed placed beside an open third-story window, protected only by a screen which they knew to be defective, was an inexcusably reckless act on the part of the two mothers, but for which the unfortunate accident would not have occurred. It does not appear that the child would not have fallen if the screen had not been defective; this alone is enough to prevent recovery. Moreover, the screen involved in this case, though defective, was in place, serving its purpose of keeping out flies and mosquitoes; so 2806 of the Housing Code was not violated.

I cannot agree to this opinion which imposes liability upon a landlord for injury sustained by a person to whom he owed no duty because a screen could not withstand violence it was not designed to meet. My view is that the judgment should be reversed and the case remanded for the entry of judgment for the defendants, non obstante veredicto.