Page v. Sloan

183 S.E.2d 813 (1971)

12 N.C. App. 433

Catherine D. PAGE, Administratrix C.T.A. of the Estate of Channing Nelson Page, Deceased, Plaintiff, v. George SLOAN and his wife, Rea Sloan, Copartners, trading and doing business as Ocean Isle Motel, Defendants.

No. 7120SC588.

Court of Appeals of North Carolina.

October 20, 1971.

Certiorari Allowed December 14, 1971.

*816 William D. Sabiston, Jr., Carthage, and Tharrington & Smith, by Roger W. Smith, Raleigh, for plaintiff-appellant.

Anderson, Nimocks & Broadfoot, by Henry Anderson, Fayetteville, for defendants-appellees.

BROCK, Judge.

Plaintiff-appellant insists that the doctrine of res ipsa loquitur is applicable in this case and, being entitled under that doctrine to have the case submitted to the jury, that summary judgment for defendant was error. We agree.

Summary judgment is proper only where movant shows that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Application of the doctrine of res ipsa loquitur recognizes that common experience sometimes permits a reasonable inference of negligence from the occurrence itself. In other words, the application of the doctrine of res ipsa loquitur recognizes a genuine issue as to the material fact of defendants' actionable negligence and precludes summary judgment for defendants.

The rules governing the application of the doctrine of res ipsa loquitur in North Carolina have been stated as follows: "When a thing which causes injury is shown to be under the exclusive management of the defendant and the accident is one which in the ordinary course of events does not happen if those in control of it use proper care, the accident itself is sufficient to carry the case to the jury on the issue of defendant's negligence." O'Quinn v. Southard, 269 N.C. 385, 152 S.E.2d 538.

In this case the evidence before the trial judge clearly shows that the electric hot water heater was under the exclusive management and control of defendants, and that they had undertaken the maintenance of it. It is a matter of common knowledge that electric water heaters are widely used to fill the hot water requirements of residential, commercial, and industrial users. When in a safe condition and properly managed, electric hot water heaters do not usually explode; therefore, in the absence of explanation, the explosion of an electric hot water heater reasonably warrants an inference of negligence. See: Harris v. Mangum, 183 N.C. 235, 111 S.E. 177.

A hotel or motel keeper, from the nature of his occupation, extends an invitation to the general public to use his facilities. When a paying guest goes to a hotel or motel the very thing he bargains for is the use of safe and secure premises for his sojourn. Although the hotel or motel keeper is not an insurer of the guest's personal safety, he has the duty to exercise reasonable care to maintain the premises in a reasonably safe condition; and if his negligence in this respect is the proximate cause of injury to a guest, he is liable for damages.

Defendants argue that res ipsa loquitur does not apply because the evidence leaves the cause of the explosion a matter of conjecture. The depositions of the two defendants which were before the trial judge indicated that a thunderstorm was in the area during the night preceding the explosion of the electric hot water heater. This testimony may constitute evidence for consideration by the jury as a possible explanation of the cause of the explosion, but its probative value is for jury determination and it does not remove the more reasonable inference that the cause of the *817 explosion was negligence of defendants in the management and control of the electric hot water heater.

Defendants further argue that they lack the knowledge and skill to inspect and regulate the heater, that they reasonably relied upon an independent contractor for proper installation, and that they reasonably relied upon an independent contractor for repairs. The evidence before the trial judge discloses that defendants hired one Olaf Thorsen to adjust and repair the electric hot water heater. The evidence before the trial judge discloses that Olaf Thorsen is not a licensed electrician and is not experienced as an electrician, but is licensed and experienced only as a plumber. The evidence before the trial judge further discloses that the repair and maintenance on the electric hot water heater required working with, installing, and adjusting electrical wiring, electrical heating elements, and a thermostat to control the flow of electrical current. At the time of the accident in question, G.S. § 87-43 provided in part as follows: "No person, firm or corporation shall engage in the business of installing, maintaining, altering or repairing within the State of North Carolina any electric wiring, devices, appliances or equipment unless such person, firm or corporation shall have received from the Board of Examiners of Electrical Contractors an electrical contractor's license: * * *."

Plumbers who are answerable only for the result of their work are generally regarded as independent contractors. 41 Am.Jur.2d, Independent Contractors, § 18. The general rule is that an employer or contractee is not liable for the torts of an independent contractor committed in the performance of the contracted work. 41 Am.Jur.2d, Independent Contractors, § 24; 26 Am.Jur.2d, Electricity, Gas, and Steam, § 52. However, a condition prescribed to relieve an employer from liability for the negligent acts of an independent contractor employed by him is that he shall have exercised due care to secure a competent contractor for the work. Therefore, if it appears that the employer either knew, or by the exercise of reasonable care might have ascertained that the contractor was not properly qualified to undertake the work, he may be held liable for the negligent acts of the contractor. 41 Am.Jur.2d, Independent Contractors, § 26. "An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons." Restatement, Second, Torts, § 411. The evidence of the repairs and maintenance performed on the electrical system of defendants' electric hot water heater by Olaf Thorsen tends to affirm the incompetence of defendants' independent contractor as an electrician.

This evidence before the trial judge tends to show a specific act of negligence on the part of defendants in failing to secure the services of a competent independent contractor and tends to strengthen the inference that the cause of the accident was defendants' negligence. The application of the doctrine of res ipsa loquitur to this case should not be denied because the evidence tends to show a specific act of negligence on the part of defendants. Brown v. Kinston Manufacturing Co., 175 N.C. 201, 203, 95 S.E. 168, 169.

The entry of summary judgment was error.

Reversed.

VAUGHN and GRAHAM, JJ., concur.