43 N.C. App. 302 | N.C. Ct. App. | 1979
The sole question presented on this appeal is whether the trial court properly granted summary judgment for defendant-lessor. We hold that he did.
Upon a motion for summary judgment, the moving party bears the burden of establishing that there is no genuine issue of material fact remaining for determination, and that he is entitled to judgment as a matter of law. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E. 2d 683 (1972).
The basis of the liability of a landlord who gratuitously undertakes to make repairs performed negligently is the representation — that the repairs have been properly made — upon which the tenant relies to his injury. In the present case, the landlord impliedly represented to the tenant that all necessary repairs had been made .... When the work was done, the tenant had a right to assume that the necessary work had been ascertained and performed. Her injury resulted from her reliance on that assumption. (Citations omitted.) Id. at 260, 35 A. 2d at 602. (Emphasis added.)
Applying these principles to the present case, plaintiff’s own deposition establishes as a matter of law that she is not entitled to recover. In her deposition plaintiff testified that defendant had attempted to repair the hot water faucet handle and that when he came to her father’s house on 15 July to put the handle back on, defendant told her that it was repaired. However, plaintiff also testified as follows:
Q. All right. Now I’m addressing your attention to the period of time between July 15 and July 23, do you understand that?
A. Yes, sir.
Q. Fine. During that period of time, do you know whether or not the hot water handle on the water control device ever fell off prior to the time when you say it fell off when you were using it?
A. I — I don’t remember, but seems like it did one time when my father was using it.
Q. Do you remember how many days that was either after Mr. Childress brought it back or before your occurrence?
A. Oh, I’d say maybe about — uh—about two days before.
Q. Did you speak with your father about that that same day?
A. Yes I —I told him it looked like it wasn’t fixed.
Q. And what did he say to you?
A. Well — uh—I don’t remember, really.
Q. But you do remember telling him it looked like to you it wasn’t fixed?
*307 A. That’s right.
Q. And this was about two days before you fell into the tub?
A. Yes, sir.
Assuming arguendo that defendant was negligent in his repair of the hot water faucet handle, plaintiff’s sworn statement shows that she knew that the handle had not been repaired and that she did not act in reliance on defendant’s assurances that repair was properly made. In the absence of such reliance, there is no basis on which liability on the part of the defendant can be premised in this case.
We note in passing that in 1977 the General Assembly enacted the Residential Rental Agreements Act, Ch. 770, 1977 Sess. Laws, now codified as G.S. §§ 42-38 to 44. That act imposes new duties upon a lessor of a dwelling unit to provide and maintain the leased premises in a fit and habitable condition. It became effective on 1 October 1977, applicable to all rental agreements entered into, extended, or renewed automatically or by the parties after that date. Thus, the Act is not applicable in the present case. We express no opinion as to whether, if applicable, the Act would give rise to liability for personal injuries caused by a lessor’s breach of statutorily imposed duties. See generally, Fillette, North Carolina’s Residential Rental Agreements Act: New Developments for Contract and Tort Liability in Landlord-Tenant Relations, 50 N.C.L. Rev. 785 (1978). Decision of that question must await a case in which the Act is applicable. Decision of the present case is controlled by the law as it existed prior to the effective date of the Act.
Affirmed.