Bolkhir v. North Carolina State University ( 1987 )

355 S.E.2d 786 (1987)

Abdulati BOLKHIR, Gal, of Ahmed Bolkhir, Minor
v.
NORTH CAROLINA STATE UNIVERSITY.

No. 8610IC1212.

Court of Appeals of North Carolina.

May 5, 1987.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Randy Meares, Raleigh, for the State.

Michael E. Mauney, Durham, for plaintiff, appellee.

HEDRICK, Chief Judge.

The only question presented on this appeal is whether the uncontroverted findings support the ultimate finding and conclusion made by the Commission that defendant's employee was negligent in "creating an unsafe condition in switching the glass and screen panels in the storm door when he knew or in the exercise of reasonable care should have known that a glass panel in the middle of the door would be dangerous for the same small children that had been pushing out the previous screen panel."

A landlord owes the duty of ordinary care to the residents of the leased premises. G.S. 42-42; Brooks v. Francis, 57 N.C.App. 556, 291 S.E.2d 889 (1982). One who owes the duty of ordinary care to another is not an insurer but is liable only for actionable negligence in maintaining the premises. Cagle v. Robert Hall Clothes and Beaty v. Robert Hall Clothes, 9 N.C.App. 243, 175 S.E.2d 703 (1970).

We find the case now before us indistinguishable from Cagle v. Robert Hall Clothes, cited above, where the minor plaintiff was injured when he fell through the glass door of the defendant's store when he pushed on the glass in an effort to exit the premises. There, this Court held that the trial court had properly entered directed verdicts for the defendant, because there was no evidence that the defendant was negligent in maintaining the premises.

In the present case, it is clear that defendant was the landlord and plaintiff and his family were the residents of the leased premises. Thus, defendant in the present case would be liable for any injury to the residents of the leased premises proximately resulting from the landlord's negligence in maintaining the premises.

In the case before us there is no evidence that the "switching" of the panels in the storm door was negligently done. The conclusion drawn by the Commission is that the fact of the switching of the panels created an unsafe condition proximately causing injury to Ahmed. There is no evidence or finding that the glass panel which "shattered" was in any way defective. While the Commission's findings refer to "tempered glass" in other doors in the apartment complex, there is no finding that the glass panel switched in the storm door in the present case was not tempered glass. Indeed the Commission found as a fact that:

The storm door on plaintiff's apartment was the common and usual type of storm door that is available in this community. In the summer of 1982, only two apartments had similar storm doors with a large screen and glass panel. The other apartments had storm doors with large aluminum bottom panels. When those had to be replaced, the only type available were the type that was in the plaintiff's apartment.

We hold, therefore, that the mere "switching" of the panels in the door did not create an unsafe condition, and the findings made by the Commission do not support the ultimate finding and conclusion that defendant was negligent in maintaining the leased premises, and the opinion and award of the Industrial Commission must be reversed.

Reversed.

EAGLES and PARKER, JJ., concur.