Brooks v. Francis

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291 S.E.2d 889 (1982)

Blanche BROOKS v. Florence I. FRANCIS and Lawrence Brothers Company, (Inc.).

No. 8110SC624.

Court of Appeals of North Carolina.

June 1, 1982.

*890 Vaughan S. Winborne, Raleigh, for plaintiff-appellant.

Lassiter & Walker by James H. Walker, Raleigh, for defendant-appellee Florence I. Francis.

Johnson, Patterson, Dilthey & Clay by Dan M. Hartzog, Raleigh, for defendant-appellee, Lawrence Bros. Co., Inc.

MORRIS, Chief Judge.

Defendants argue, citing the common law, that summary judgment was appropriate in that they owed no duty to repair or warn plaintiff of the defective condition of the steps, and alternatively, that plaintiff was contributorily negligent as a matter of law by using the rear stairs, which she knew to be dangerous. We hold that defendants did indeed bear a duty to repair, but that plaintiff was contributorily negligent as a matter of law, barring recovery.

The rule of caveat emptor has been commonly applied by the courts of this state in the landlord tenant context. Until recently landlords have had no duty to make repairs, and have not been held liable for personal injury caused by failure to *891 repair. Robinson v. Thomas, 244 N.C. 732, 94 S.E.2d 911 (1956); Fields v. Ogburn, 178 N.C. 407, 100 S.E. 583 (1919). The passage of the Residential Rental Agreements Act, G.S. 42-38 to 44, created a new standard of care owed by landlord to tenant in North Carolina, however.

§ 42-42. Landlord to provide fit premises. (a) The landlord shall: . . . . . (2) Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition; . . . . . § 42-44. General remedies and limitations. (a) Any right or obligation declared by this Chapter is enforceable by civil action, in addition to other remedies of law and in equity. . . . . . (d) A violation of this Article shall not constitute negligence per se.

The common law precedent cited by defendants for the proposition that a landlord is under no duty to keep rented premises in repair in the absence of an agreement relating to repairs is, because of the Act, inapposite. We have said that, "[b]y providing that a violation of statute does not constitute negligence per se, the General Assembly left intact established common law standards of ordinary and reasonable care ... (Citations omitted.)" Lenz v. Ridgewood Associates, 55 N.C.App. 115, 119-20, 284 S.E.2d 702, 705 (1981). A violation of the duty to maintain the premises in a fit and habitable condition is, therefore, evidence of negligence. See O'Neal v. Kellett, 55 N.C. App. 225, 284 S.E.2d 707 (1981). We do not find those cases concerning duty to warn and negligent repair cited by defendants pertinent to the matter at hand, as G.S. 42-42(a)(2) imposes not a duty to warn, but to correct unfit conditions, see Lenz v. Ridgewood Associates, supra, and because repair of the rear steps negligently done was not alleged by plaintiff.

Applying ordinary rules of negligence, the evidence before the Court tends to show that defendants allowed the defective steps to remain on the premises, and that the steps created an unsafe structural defect and failed to provide the service and protection for which they were intended. It may also be gleaned from the evidence that defendant Francis and her agent Lawrence Brothers Company knew, or in the exercise of ordinary care should have known, that the steps were in disrepair, but failed to exercise ordinary care to correct the unsafe condition.

Plaintiff's evidence, however, taken in the light most favorable to her, runs counter to the conclusion that defendants' conduct was the sole proximate cause of plaintiff's injury. Although issues of negligence, and contributory negligence, are rarely appropriate for summary judgment, Ballenger v. Crowell, 38 N.C.App. 50, 247 S.E.2d 287 (1978), the uncontroverted evidence in this case indicates that plaintiff "failed to use ordinary care ... and that want of due care was at least one of the proximate causes" of her fall. Bogle v. Power Co., 27 N.C.App. 318, 322, 219 S.E.2d 308, 311 (1975), cert. denied 289 N.C. 296, 222 S.E.2d 695 (1976). Her use of the steps rendered her contributorily negligent as a matter of law, making summary judgment in favor of defendants proper. Plaintiff lived at 305 South Swain Street for eight years. She had trouble walking. She knew of the condition of the steps, considered them dangerous, and made numerous complaints. Furthermore, she knew that she could walk to the rear yard by using the front steps, and that this alternate route was completely safe. Compare Lenz v. Ridgewood Associates, supra; O'Neal v. Kellett, supra.

No inflexible rule can be laid down as to what constitutes contributory negligence as a matter of law, as each case must be decided on its merits. Plaintiff by her own evidence has proven herself out of court on the ground of contributory negligence.

Wallsee v. Carolina Water Company and Town of Morehead City, 265 N.C. 291, 298, 144 S.E.2d 21, 26 (1965).

*892 Plaintiff's evidence shows that her own negligence was a proximate cause of the mishap on the rear steps. Defendants' motions for summary judgment were properly allowed. Our decision renders it unnecessary to rule on the denial of plaintiff's motion for partial summary judgment.

The judgment of the trial court is


VAUGHN and HARRY C. MARTIN, JJ., concur.

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