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Souci v. William C. Smith & Co.12/7/2000
; see also Bostic v. Henkels & McCoy, Inc., 748 A.2d 421, 424-25 (D.C. 2000) (holding that an independent contractor owes a common law duty of care to members of the public with whom no privity of contract exists).
The rationale of these decisions applies equally to Mr. Souci's case. It is true that Mr. Souci did not personally contract with Smith & Co. for the repair of his apartment. But as Unit 04's occupant and user, and as the Co-op's tenant occupying that unit, he was not merely a "probable user" of the apartment. Cf. Hanna, supra, 97 U.S. App. D.C. at 315, 231 F.2d at 474. Rather, he was its only occupant and hence its certain user. It was therefore foreseeable that negligently conducted repairs to Unit 04 would cause harm and damages to Mr. Souci personally. Consequently, the absence of privity of contract between Mr. Souci and Smith & Co., and, indeed, the lack of any contractual relationship between them, cannot defeat Mr. Souci's action for tort. Regardless of whether or not Smith & Co. has a contractual obligation to Mr. Souci, perhaps under a third party beneficiary theory, it owes him an independent, common law duty to exercise due care in performing repairs to his flood-damaged apartment.
(3) Damages.
Finally, Smith & Co. contends that, even if one were to assume that Mr. Souci has standing to sue and that Smith & Co. owed him a duty of due care, this action nevertheless fails. Smith & Co. claims that this is so because Mr. Souci has sought recovery only for damage to real property which belonged to the Co-op and did not belong to Mr. Souci. See, e.g., Gaetan, supra, 729 A.2d at 898 (holding that "a tenant lacks the requisite ownership interest to recover damages [for injury] to real property"). Consequently, says Smith & Co., Mr. Souci has failed to allege an indispensable element of a claim for negligence, namely, that he has sustained an injury for which he is entitled to recover damages. See Bullock, supra, 735 A.2d at 952. Counsel for Smith & Co. explicitly conceded at oral argument, however, that, if Mr. Souci had alleged an injury personal to him, such as the impairment of his enjoyment of the tenancy, then Mr. Souci's allegations would have been sufficient, and the summary judgment in Smith & Co.'s favor would have to be reversed.
But the record shows beyond peradventure that Mr. Souci does claim to have suffered a compensable injury. In his affidavit in opposition to Smith & Co's Motion for Summary Judgment, Mr. Souci stated that his "day to day living was upset due to the flooding," and that Smith & Co.'s repair work only "made the situation uglier with cursory cosmetic swipes." He further averred that " y use and enjoyment of my home was severely curtailed by the flood and the sl pshod repairs detailed above" and that " rom September of 1997 to today, June 10, 1999, I have lost the use and enjoyment of my apartment as the result of the failure of William C. Smith & Company to properly perform repairs." Mr. Souci thus claims that Smith & Co.'s failure to exercise due care has proximately resulted in the loss of the use and enjoyment of his apartment, which is a leasehold interest for which a tenant is entitled to recover in negligence from a third party. As we stated in Gaetan, supra, 729 A.2d at 898, "the loss of use and enjoyment of one's property . . . affect a tenant's interests and, therefore, may be compensable."
In his affidavit, Mr. Souci detailed some of the specifics on which he bases his claim of loss of enjoyment. He alleged, for example, that the repair to his bedroom ceiling resulted in a "horrible eyesore," that there is "deep staining" on his bedroom floor,
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