*1 828
Second, recognize, as did the United we Powers, Supreme
States Court racial
prima facie case of discrimination if the
may more difficult establish juror potential
defendant and the excused — Powers, race. U.S. are not of same
at—, Neverthe 111 at 1373-74. S.Ct.
less, begun examining mixed- courts have Powers, challenges
race in the wake of though always
even the defense has pur prevailing on the issue of
succeeded See,
poseful e.g., v. discrimination. State 577, 583,
Hernandez, 63 St 3d Ohio (1992) (Hispanic defen
N.E.2d challenge raising for exclusion
dant Batson veniremember); Brashear v. black 709, 715,
State, A.2d Md.App. (1992)(white challenging ex veniremembers). of black Based
clusion Powers, find can no
upon reading our we allowing for not this mixed-race
reason proceed.
challenge to
Therefore, we reverse Appeals and remand of Criminal Court a further
this ease to the trial proceedings, if neces-
hearing and other
sary, in directions set accordance
out above. C.J., DROWOTA,
REID, O'BRIEN JJ., ANDERSON, concur. wife, Mary E.
Robert G. SMITH
Smith, Individually, and as the Smith, Kyle Plain-
and next-of-kin
tiffs/Appellees, (Wallace), Ann OWEN
Katherine Defendant/Appellant. Tennessee, Middle Appeals of
Court of
Section, at Nashville. 19, 1992.
June Appeal Denied
Permission Court
by Supreme 19, 1992.
Oct. *2 They following
trical shock. asserted the (1) theories: that defendant violated Sec- Housing tion 303.4 of the of Cookeville regulations state as well as enacted pursuant to Tenn.Code Ann. 68-40-101 §§ seq., et and that such violations constitute se; (2) doctrine liable under the (2d) Torts, as stated in the Restatement 402(a); (3) that the defendant is lia- § general principles ble under the gence. parties agreed to bifurcate the trial and submit the issue of judge sitting trial jury, without a with the damages amount of to be submitted to a jury judge any liability. should the find accident, May the date of the
On Smith, plaintiffs, Mary Robert and Cookeville,Tennessee, resided in a house renting they had been from defen- dant, Wallace, Katherine Owen since Au- gust Upon inspecting dryer of 1981. and the in the house the acci- after dent, an electrician discovered that the wir- ing leading to the electrical outlet at the reversed, dryer was so that the entire dryer frame of was electrified with 110 electricity. grounded volts of There was a gas pipe directly dryer, behind the and the electrician concluded that the child must have received the shock as a result of com- pipe ing in contact with the and the electri- dryer fied frame at the same time. Jones, Moore, Jones, E. John Rader & Clift, P.C., Cookeville, plaintiffs/appel- for compe- The electrician testified that no lees. tent electrician would have installed the Madewell, Jared, D.
James Madewell and wiring in the manner he found it. He Cookeville, defendant/appellant. using discovered the defect a meter monly used electricians. He also testi-
OPINION that, electricity fied since would not flow CANTRELL, Judge. dryer the metal frame and the between floor, dryer persons using the linoleum This is from a of liabili- not have been alerted to the fact would se, ty, theory moving that it After into was electrified. unknowing passive of a munici- an violation house, plaintiffs it had noticed pal ordinance. We affirm. long for their unusually took an time History I. Facts and Procedural get prob- dry, clothes to but assumed taking the dryer. lem After brought against Plaintiffs this suit their dryer appliance repair shop, where no to an landlord, seeking damages injuries suf- found, simply problem plaintiffs had by their minor child when he crawled fered kept on dryer was slow and assumed plaintiffs’ dryer pipe clothes and a between using elec- it. against the wall received severe injured The court also found that
Ms. Wallace
owned
since 1979.
where the accident occurred
within the
child was
grandparents
Before that her
adopting
the Standard
it
The house was
had owned
since 1924.
protect. Further,
Code was intended
in 1951.
completely remodeled and rewired
violation of
*3
lived there from 1951
Defendant’s
of
nance
the
cause
the
was
1961,
to 1961. Since
the house
been
injuries, pointing
child’s
out that “an in-
various
rented to
tenants.
premises prior
of the
spection
lease
defendant,
of
her
testimony
From the
would have revealed the defective condi-
tenants,
trial
mother and some former
the
plaintiffs
The
also
that
tion.”
found
outlet
in
the electrical
contributory
guilty
negligence.
were not
of
question was
sometime between
installed
The
held defendant
trial court
liable
No one
ever com-
1961 and 1969.
had
violating
of
the basis
defendant,
municipal
or to the
plained to
city ordinance. The court held that
inspector,
performance
or
codes
about
theory
was not
on the
liable
of
inspector
The
safety of this outlet.
codes
simple negligence, finding
“by
that
reason-
department
that his
does not rou-
testified
diligence, the Defendant
able care and
inspections
tinely conduct
unless
known of the unsafe and
could not have
plaint is received.
dangerous
holding
this
condition.” While
rewiring
and
of the
remodeling
After the
previ-
one in the
appears to contradict the
1951,
prior
in
mov-
house
but
only
in
paragraph,
ous
we are
concerned
in,
adopted the
ing
of Cookeville
negligence per se theo-
this
with the
Code,
edition,
Housing
pub-
Standard
it did not
ry. The court concluded
Building
Code Con-
lished
Southern
of
the issues whether de-
need to address
Chapter III of the
gress International.
regulations
and
fendant violated
state
Housing
captioned “MINI-
Standard
apply in
liability should
whether strict
EQUIP-
MUM STANDARDS FOR BASE
these circumstances.
FACILITIES,”
im-
specifically
MENT AND
granted defendant’s mo-
The trial court
owner-occupants
poses certain duties on
interlocutory appeal pursuant
tion for
and landlords:
9, T.R.A.P.
Rule
SECTION 301—GENERAL
occupy
shall
as owner-occu-
No
Municipal Housing Code Establishes
II.
let
another for occu-
pant or
or sublet to
of
Applicable Duty
Care
any
dwelling unit de-
pancy
dwelling or
held that the date of
The trial court
signed
to be used for the
or intended
letting
premises, rather than the date
living,
cooking or
purpose
sleeping,
comply
remodeling,
not
eating
...
does
or
determines
therein
construction
in
requirements
enumerated
requirements
whether
[the
Chapter
this
applicable in
case.
code are
III].
Congress
Building
Interna
Southern
Code
found that the condition
The trial court
codes,
major
seven other
publishes
tional
question
in
outlet
was
of the electrical
building
code.
including a
construction
following section:
compliance
in
with the
the Stan
preface
edition of
the 1979
303.4—ELECTRIC LIGHTS
SECTION
pur
its
explains that
dard
Code
REQUIRED
AND OUTLETS
re
pose is
minimum standards
to establish
light fix-
to the electric
...
In addition
“use,
and mainte
lating
occupancy
laundry
every
and
ture
bathroom
buildings.”
nance
residential
room,
at
one
provided
shall
least
there
be
added).
101.4
(Emphasis
Section
(1)
Every such out-
convenience outlet.
provides
expressly
code
“[t]he
installed,
properly
let
fixture shall
any
apply
provisions of
Code shall
good
safe
shall be maintained
house or
apartment, apartment
dwelling,
condition,
be connect-
working
and shall
when said
irrespective
house
rooming
power in a
of electric
ed to the source
altered,
constructed,
or re-
building
manner.
safe
added).
(Tenn.1988)
Queen
(citing
paired.”
(Emphasis
Day
The various
232-233
v.
Co.,
458,
subsections of Section 101.4 deal with how
Iron
95 Tenn.
32 S.W.
ton Coal &
additions,
determine
alterations
whether
(1895) Memphis
Railway
Street
v.
repairs
existing buildings
made to
shall
or
(1904)).
Haynes,
Tenn.
whether PENALTIES se, gence per but rather her constructive firm, Any person, corporation or agent, inspect and knowledge of the a provision who shall violate of this are no sure there code violations before therewith, comply any or fail to or with to a lessee. over requirements thereof ... shall be prosecuted provided by within the limits purposes of Standard state or local laws.... are as follows: Code described REMEDIAL SECTION 101.2—CODE do see the existence of a munici- We mechanism, hereby pal provi- or the This Code is declared enforcement remedial, prosecution, shall be construed to se- sion for criminal as basis on pur- distinguish cure the which to beneficial interests and public from various ordinances poses safety, thereof —which are at issue here through penal implicated in other cases general health and statutes welfare— sanitation, pri- have strength, stability, structural where Tennessee courts allowed adequate ventilation, action light and and safe- vate causes of based *5 See, The ty property per e.g., to life and from fire and se. Brookins v. Round Table, Inc., (Tenn.1981) other hazards incident to the construc- S.W.2d tion, (statute alteration, removal, prohibited of to repair, demoli- sale alcohol minors tion, provided penalties); of and occupancy use and residential criminal Alex v. buildings. Armstrong, 215 Tenn. 385 S.W.2d (1964)(statute dogs allowing declared to be housing The of the effectiveness large provided at a and for misdemeanor promoting safety in and nance health fines). severely dwelling undermined if accomplish purposes, to its the owners were allowed use lack of knowl- In order to specific edge non-complying housing imposes as duties on of a condition a code dwellings. The against liability injuries fact that the defense civil for owners fined, by may to com- owner have his or proximately property caused their failure condemned, essence, subjected defen- her or be ply with the ordinance. In nothing to asking prosecution her criminal does make dant is this court insulate injured the as a person from for no other reason than that whole with, noncompliance. That either did not familiarize herself result of the owner’s she ignore, why the sections of the hous- is the doctrine of se or chose to duty inspect. just a for civil ing impose the as basis code that been established liability. This we cannot do. time, the making injured At the same provide
The code does for on the sole tenet which party whole is not by municipality. ap The enforcement the above, discussed the rests. As doctrine “Housing pro is pointment of Official” statute or only applies where doctrine 102.1, powers and the vided Section person to a duty owed imposes provided duties of the official are Appellant’s contention persons. or class of in Section 103. Section 104 authorizes the facts negligence inspections. housing official make The effect, liability, is is, in such as these notifying the owner of a code procedure without merit. is described in subsection 103.2. violation process deal Sections 105-107 Intended to be b. Tenants Within Class of the official to appealing actions Housing Ordinance by Protected Adjustments Ap Board of pro imposed Section legal duty The of care provides peals. Section applies owners dwellings. 301 of the code condemnation of unfit cedure for occupy premises themselves prose- who either expressly provides also The code TODD, another, Presiding Judge, dissenting. and to lessees or lease them to primary- parties. sublet to third who great respect and deference to the With protected intended to be reasoning upon authorities and obviously who by the ordinance is those based, majority I must conclusion of the is actually dwelling premises. in the will register my disagreement I con- with what period, of the lease At the commencement unjust sider to be an result. person who owns or has had control The record reflects that the defective position to know premises is a better knowledge without the was installed dangerous conditions then about or consent of the defendant-landlord before than is the new tenant. which, ac- the enactment of the code plaintiffs here moved into cording majority, made the landlord dangerous condition had been on which a safety premises. an insurer of the years. The ordi- latent for a number contrary long law This is established designed protect nance them from in this Max- of landlord and tenant State. being injured by non-complying such condi- Tenn., Corp. Tenn.App. well v. Davlo why imposes the ordinance tions. That 528, and authorities cited inspect prem- on the lessor the therein. ises before them over to a new tragic case are pro- tenant. The are The facts of this within regrettable, tected class. the result of but were gence of a unknown without concur- Inspect c. Defendant’s Failure any party to this rence of Injury Proximate Cause of case. The trial court found that the defen- should be reversed and the dant’s violation of the ordinance was the case dismissed. *6 proximate injury. cause of the As have we stated, imposed the ordinance inspect before plaintiffs. over to In case, instant electrician discovered faulty wiring using a meter with which
any electrician familiar. The trial specifically inspection found that “an FANN, Marjorie Plaintiff/Appellee, Gale premises prior to the lease would
have revealed the condition.” defective preponderance sup- of the evidence BRAILEY, Eugene Leroy Robert ports finding the trial court’s Shanes, M. and Bill Odom cause. Defendants/Appellants. The trial were Tennessee, Appeals of Court of contributorily negligent. Appellant Section, Middle at Nashville. finding. not contested this July 1992. IV. Conclusion Appeal Denied Permission to above, the reasons stated we affirm For Supreme Court trial court’s on the 26, 1992. Oct. The cause is basis of se. Putnam
remanded to the Circuit Court for
County proceedings further consistent opinion. Tax the costs on appellant. J.,
LEWIS, concurs. P.J.,
TODD, opinion. dissents with