Floyd v. Jarrell

18 N.C. App. 418 | N.C. Ct. App. | 1973

BRITT, Judge.

Did the trial court err in allowing defendant’s motion for directed verdict? We answer in the negative.

In 5 Strong, N. C. Index 2d, Landlord and Tenant, § 8, pp. 162-163, we find:

“The lessor is not ordinarily liable to a tenant, or the tenant’s sublessee, family, servants, or guests, for personal injuries resulting from disrepair, or patent defects, even when the lessor is under a contractual obligation in his lease to keep the premises in repair, or even if the dangerous condition had been brought to the lessor’s attention and he had agreed to repair the same, or the lessor had assumed the duty of making repairs. The doctrine of caveat emptor ordinarily applies, and the lessor is not liable unless the lessee shows that there was a latent defect known to the lessor, or of which he should have known, and that the lessee was unaware of, or could not by the exercise of ordinary diligence discover, the defect, the concealment of which would be an act of bad faith on the part of the lessor.”

In their brief plaintiffs concede that the general rule in this jurisdiction is accurately stated by Strong. However, they contend that the instant case falls within the exception to the rule “that failure to comply with a duty imposed by statute or code dealing with the care of premises constitutes actionable negligence on the part of a landlord, rendering him liable for personable injuries resulting to a tenant thereby.” Plaintiffs contend that in the care and maintenance of the premises rented to the male plaintiff and the adjoining premises owned by defendant, defendant did not comply with certain ordinances enacted by the City of High Point.

While the facts in Clarke v. Kerchner, 11 N.C. App. 454, 181 S.E. 2d 787 (1971), cert. den. 279 N.C. 393, 183 S.E. 2d 241 (1971), were different from those in the instant case, we think the principles of law are sufficiently similar for our decision in that case to control here. In Clarke, plaintiff was a guest of the lessee of a house owned by defendants Kerchner and fell and received injuries when a horizontal rail on the back porch gave way; plaintiff contended that a violation of the Greensboro Housing Code was negligence per se, and that a showing of violation entitled plaintiff to go to the jury on the question of proximate cause. In a well reasoned opinion by Judge Vaughn, concurred in by Chief Judge Mallard and Judge Parker, this court rejected plaintiff Clarke’s contention, holding that although the violation of a city ordinance is a misdemeanor, the ordinance in question was remedial rather than penal in nature. Plaintiffs’ argument in the case at bar that there are sufficient differences between the High Point ordinances and the Greensboro Housing Code to justify a different ruling is unconvincing.

We hold that the trial court, for failure of plaintiffs to show actionable negligence on the part of defendant, did not err in allowing defendant’s motion for directed verdict.

The judgment appealed from is

Affirmed.

Judges Campbell and Baley concur.