Williams v. Riley , 56 N.C. App. 427 ( 1982 )

289 S.E.2d 102 (1982)

Gary Lee WILLIAMS
v.
James L. RILEY, Sr., and wife, Etha Ellen Riley.

No. 8120SC634.

Court of Appeals of North Carolina.

March 16, 1982.

Pollock, Fullenwider, Cunningham & Patterson, P. A., by Bruce T. Cunningham, Jr., Southern Pines, for plaintiff-appellant.

Johnson, Patterson, Dilthey & Clay, by Ronald C. Dilthey, Raleigh, for defendants-appellees.

WELLS, Judge.

The ultimate question on this appeal is whether summary judgment for defendant was properly granted.

In his verified complaint, plaintiff first alleged that defendants were negligent in failing to inspect, repair and maintain the premises in a reasonably safe condition; that defendants knew or should have known of the dangerous railing, and that defendants should have warned plaintiff of it. This aspect of plaintiff's cause of action is clearly founded in tort. Both North Carolina and South Carolina follow the traditional rule, of lex loci delicti, "[t]he law of the state in which the tort occurs governs the case." Matthews, Cremins, McLean, Inc. v. Nichter, 42 N.C.App. 184, 256 S.E.2d 261 (1979), disc. rev. denied, 298 N.C. 569, 261 S.E.2d 123 (1979); Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303 (1964); see Annot., 29 A.L.R. 3d 603; Annot., 77 A.L.R. 2d 1266. The place of the tort is in the state where the last event invoking tort liability occurred. Restatement 2d, Conflict of Laws, § 377. Since plaintiff's injury occurred in South Carolina, the law of that state controls the substantive legal aspects of this case. North Carolina being the forum state, North Carolina law controls the procedural aspects of the case; and is dispositive on whether an issue is substantive or procedural. Annot., 29 A.L.R. 3d 603, § 1(a), n. 1.

Plaintiff's complaint also alleges, in the alternative, that "[d]efendants breached an implied warranty of fitness by providing to the plaintiff use of a cottage unfit for its normal intended use." Again, South Carolina law controls, as the lease was entered into and performed in that state. See 16 Am.Jur.2d, Conflict of Laws, § 80.

The next issue to be addressed concerns the relationship between the parties. Plaintiff argues that this was not a landlord-tenant relationship, but one of an innkeeper-guest. Plaintiff bases his argument on rental agent Thomas' admission that he had access to the cottage at all times, although when occupants were there, Thomas apparently only entered to make a repair at a renter's request, to deliver a message, or to investigate complaints. Thomas never entered the cottage during plaintiff's stay there. The written rental agreement, if any, negotiated by Thomas and Turner is not part of the record.

Under South Carolina's statutory definitions of "hotel" and "innkeeper," however, plaintiff's argument must fail. The following pertinent sections of S.C.Code, Title 45: Hotels, Motels, Restaurants and Boardinghouses, provides:

§ 45-1-40. Innkeeper's liability for loss of baggage, money, jewels, and other personal property. "Innkeeper" as used in this section shall mean the proprietor of any hotel, inn, boardinghouse, motor court, or motel where beds or lodging are for hire.

§ 45-5-10. Definitions. A "hotel" as used in this chapter [Safety Regulations] is an inn or public lodginghouse of more than ten bedrooms where transient guests are fed or lodged for pay in this state.

§ 45-5-20. Applicability to private residences. Nothing in this chapter shall apply to private residences at which lodgers are not received for hire.

Defendant's upstairs duplex has three bedrooms, and thus does not qualify as a hotel. Neither is it an "inn," since the entire duplex was rented out, rather than bedspace or rooms. We find that plaintiff and his friends leased defendants' cottage, establishing a landlord-tenant relationship between himself and the Rileys.

In South Carolina, absent express warranty, a landlord owes no duty of care to a tenant to keep the premises in repair. Sheppard v. Nienow, 254 S.C. 44, 173 S.E.2d 343 (1970); Conner v. Farmers and Merchants Bank, 243 S.C. 132, 132 S.E.2d 385 (1963); Pendarvis v. Wannamaker, 173 S.C. 299, 175 S.E. 531 (1934); Timmons v. Williams Wood Products Corp., 164 S.C. 361, 162 S.E. 329 (1931); see also Hatfield v. Palles, 537 F.2d 1245 (1976) (applying S.C. law). Even where a breach of an express agreement to repair is shown, such a breach will not support the recovery of damages for personal injury sustained by reason of the defective condition of the premises. Sheppard v. Nienow, supra.

Although we have frequently iterated the rule that summary judgment is rarely appropriate in negligence cases, Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980), where the forecast of evidence discloses a fatal weakness in plaintiff's claim that would bar his right of action under any circumstances, summary judgment is appropriate. Vassey, supra, Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). Since this case raised only issues of law which supported an entry of summary judgment for defendant, this case must be and is

Affirmed.

ROBERT M. MARTIN and WEBB, JJ., concur.