Bernstein v. Fernandez, 649 A.2d 1064 (1991)

Citation: Bernstein v. Fernandez, 649 A.2d 1064 (1991)
Parent Document: Bernstein v. Fernandez, 649 A.2d 1064 (1991)
Jurisdiction: DC (municipal)
Effective Date: 1991-03-28
Original Source: https://www.courtlistener.com/opinion/2103411/bernstein-v-fernandez/ ↗

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I join the majority opinion and write separately only to make clear that I do not read the majority to conclude that a nuisance claim may never be brought by a tenant against a landlord, but rather, that on the facts of this case, Fernandez failed to meet her burden of proof. See majority opinion at 1073-1074. The Maryland eases cited by the majority are not dispositive. In Little v. Union Trust Co., 45 Md.App. 178, 185, 412 A.2d 1251, 1255 (1980), the Court of Special Appeals held that a cause of action for public nuisance was not available. In State ex rel. Bohon v. Feldstein, 207 Md. 20, 33, 113 A.2d 100, 106, the Court of Appeals held open the possibility of a nuisance claim where the landlord “demise[d] premises which are ... in themselves a nuisance....” Our decision in District of Columbia v. Fowler, 497 A.2d 456 (D.C.1985), addressed only the requirement of prior notice before the District may be held liable for maintaining a nuisance as a result of defective conditions in streets and highways. Moreover, as the majority acknowledges, see majority opinion at 1073 n. 9, a nuisance cause of action has generally been recognized under certain circumstances. *1076See R. Schoshinski, American Law of Landlord and Tenant § 3.9 (1980 & 1990 Supp.) (and cases cited) (nuisance cause of action may be available where claim is based on conduct in “areas of premises over which the landlord has retained control”). --- 010combined ---

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