Clarke v. Kerchner , 11 N.C. App. 454 ( 1971 )

181 S.E.2d 787 (1971) 11 N.C. App. 454

Earline H. CLARKE
v.
Charles E. KERCHNER and wife, Margaret B. Kerchner and Irene Taylor.

No. 7118SC362.

Court of Appeals of North Carolina.

June 23, 1971.

Clark & Tanner by David M. Clark, Greensboro, for plaintiff appellant.

Perry C. Henson and Daniel W. Donahue, Greensboro, for defendant appellees Kerchner.

VAUGHN, Judge.

Appellant contends that the court erred in granting defendants' motion for a directed verdict. Before we can decide whether the evidence, taken in the light most favorable to the plaintiff was sufficient to be considered by the jury as to whether defendants breached a duty owed to plaintiff, we must decide (1) whether certain expert testimony should have been considered by the court below, and (2) what duty defendants owed plaintiff.

Appellant assigns as error the failure of the court below to recognize her witness, John Fox, as an expert, and the failure to allow the witness to state his opinion in answer to hypothetical questions. The competency of a witness to testify as an expert is addressed to the discretion of the trial court, and its determination is ordinarily conclusive on appeal unless an abuse of discretion is shown or unless there be no evidence to support the finding. State v. Moore, 245 N.C. 158, 95 S.E.2d 548; In re Humphrey, 236 N.C. 142, 71 S.E.2d 915. No abuse of discretion affirmatively appears in the record nor is there a showing of a lack of evidence to support the finding. Because the witness was not qualified as an expert, his answers to hypothetical questions were properly excluded.

According to the well-established common law rules in effect in North Carolina, the duty owed a person on the premises of another depends on the status enjoyed by the visitor; different duties are owed to the invitee, the licensee, and the trespasser. Hood v. Queen City Coach Co., 249 N.C. 534, 107 S.E.2d 154. At the time of her injury, plaintiff was a social guest of the defendant Taylor. An invited social guest is a licensee. Cobb v. Clark, 265 N.C. 194, 143 S.E.2d 103; Murrell v. Handley, 245 N.C. 559, 96 S.E.2d 717; Haddock v. Lassiter, 8 N.C.App. 243, 174 S.E.2d 50. The duty an owner owes a licensee is described in detail in Dunn v. Bomberger, 213 N.C. 172, 195 S.E. 364:

"As plaintiff's intestate was a licensee, defendant did not owe him the duty to keep his premises in a reasonably safe condition. The only duty resting upon the defendant was to refrain from willful or wanton negligence, and from the commission of any act which would increase the hazard. The owner of land is not required to keep his premises in a suitable or safe condition for those who come there solely as licensees and who are not either expressly invited to enter or induced to come upon them for the purpose for which the premises are appropriated and occupied. In authoritative decisions of this and other jurisdictions, the degree of care to be exercised by the owner of premises toward a person coming upon the premises as a bare or permissive licensee for his own convenience is to refrain from willful or wanton negligence and from doing any act which increases the hazard to the licensee while he is upon the premises. The owner is not liable for injuries resulting to a licensee from defects, obstacles, or pitfalls upon the premises unless the owner is affirmatively and actively negligent in respect to such defect, obstacle, or pitfall while the licensee is upon his premises, resulting in increased hazard and danger to the licensee. Brigman v. [Fiske-Carter] Construction Co., 192 N.C. 791, 136 S.E. 125, 49 A.L.R. 773, and cases there cited. The Brigman Case is reported and annotated in 49 A. L.R. 773."

Such is the common law duty of the owner of premises, when the owner is in possession. To understand the common law duty of a lessor, one must keep in mind the rule that a lessor is not under an implied covenant to repair the premises, and in the absence of agreement to the contrary, is not under a duty to keep the premises under repair, or to repair defects existing at the time the lease is executed. Thompson v. Shoemaker, 7 N.C.App. 687, 173 S.E.2d 627. Thus, the liability of the lessor is summarized as follows:

"The lessor is not ordinarily liable to a tenant, or the tenant's sublessee, family, servants, or guests, for personal injuries resulting from disrepair, or patent defects, even when the lessor is under a contractual obligation in his lease to keep the premises in repair, or even if the dangerous condition had been brought to the lessor's attention and he had agreed to repair the same, or the lessor had assume the duty of making repairs. The doctrine of caveat emptor ordinarily applies, and the lessor is not liable unless the lessee shows that there was a latent defect known to lessor, or of which she should have known, and that the lessee was unaware of, or could not by the exercise of ordinary diligence discover, the defect, the concealment of which would be an act of bad faith on the part of the lessor." 5 Strong 2d, N. C. Index, Landlord and Tenant, § 8, pp. 162-163.

An understanding of the duty owed by defendant Taylor can be gleaned from Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408. There the defendant was the occupant of the premises, a contractor who was constructing the building. The Court described the duty owed by the owner or occupant of a building to a licensee:

"The owner or person in possession of property is ordinarily under no duty to make or keep property in a safe condition for the use of a licensee or to protect mere licensees from injury due to the condition of the property, or from damages incident to the ordinary uses to which the premises are subject. There is no duty to provide safeguards for licensees even though there are dangerous holes, pitfalls, obstructions or other conditions near to the part of the premises to which the permissive use extends. Neither is the owner or person in charge ordinarily under any duty to give licensees warning of concealed perils, although he might, by the exercise of reasonable care, have discovered the defect or danger which caused the injury. It follows that, as a general rule, the owner or person in charge of property, is not liable for injuries to licensees due to the condition of the property, or as it has been expressed, due to passive negligence or acts of omission. [Citations omitted.] The duty imposed is to refrain from doing the licensee willful injury and from wantonly and recklessly exposing him to danger."

The duty described above is imposed on owner (defendants Kerchner) and occupant (defendant Taylor) when the premises are controlled by the tenant and the injury is caused by a defective condition of the premises, rather than by affirmative, active negligence. The evidence, taken in the light most favorable to the plaintiff, was not sufficient to be considered by the jury on the question of breach of the common law duty by defendants. There was no evidence that either defendant willfully injured the plaintiff, or wantonly or recklessly exposed her to danger.

Appellant contends that a violation of the Greensboro Housing Code is negligence per se, and that once proof of a violation is introduced, the case should go to the jury on the question of proximate cause. For the purpose of discussing this theory, we assume, but explicitly do not decide, that plaintiff presented evidence sufficient to be considered by the jury on the questions of defendants' failure to comply with provisions of the ordinance. According to appellant's theory, the purpose of the Greensboro Housing Code is to protect life and limb; therefore, it is a safety statute which imposes upon owner and occupant a duty to maintain the premises they own or occupy in a safe condition as required by the maintenance standards; a deviation from the maintenance standards set out therein (a breach of duty) causing injury to a person on the premises would produce liability for owner and occupant, regardless of the status of the person injured under the common law rules. In support of that theory, appellant cites numerous cases in which violation of a municipal ordinance was held to be negligence per se, among them Bell v. Page, 271 N.C. 396, 156 S.E.2d 711. In Bell, a nine year-old boy drowned in a motel swimming pool which the evidence tended to show was not being maintained in accordance with a municipal ordinance of Washington, N. C. The court held that the ordinance was a safety statute, and that a violation of the ordinance would be negligence per se, despite the fact that the boy was a trespasser. "The primary purpose and intent of said ordinance in imposing such legal duty on persons maintaining swimming pools was to provide protection for children without reference to whether they were legally entitled to use the pool." Bell v. Page, supra. We detect several distinctions between the housing code involved in this case and the safety statutes involved in Bell and other cases cited by appellant. While there was no doubt in those cases that the purpose of the statute or ordinance was to impose a standard of care, there is no indication that the housing code being considered was so intended. The stated purpose of the Greensboro Housing Code is "* * * to arrest, remedy and prevent the decay and deterioration of places of habitation and to eliminate blighted neighborhoods by providing minimum requirements for places of habitation for the protection of the life, health, welfare, safety and property of the general public and the owners and occupants of places of habitation." The primary purpose and intent of this ordinance was not to impose a legal duty on persons owning or occupying housing for the protection of their guests regardless of whether owner or occupant would otherwise owe them the same duty. The purpose is "to arrest, remedy and prevent the decay and deterioration of places of habitation and to eliminate blighted neighborhoods. * * *" The method for improving housing in Greensboro is "by providing minimum requirements." Although N.C.Gen.Stat. § 14-4 provides that violation of a city ordinance is a misdemeanor, the ordinance in question is not penal in nature. It is a remedial statute; if a building is found to be unfit for human habitation, it may be closed until repairs are made. Finally, if the statute were the standard of care by which owners of buildings were judged regardless of whether the area complained of was within the owner's control, the result would be either an unfair burden on the landlord (requiring him to maintain an area he could not enter), or an invasion of the domain of the tenant in his leased premises. For these reasons, we do not think this ordinance imposes upon the landlord (who does not even have the duty to repair the premises, Thompson v. Shoemaker, supra), a duty to maintain the premises in a safe condition. Nor does the ordinance alter the duty owed by the tenant.

Cases from other jurisdictions support the view that provisions in a city's housing code requiring maintenance by the owner or occupant or both do not change the common law duties of landlord and tenant unless the intention of the legislative body to do so is explicitly stated. In one case plaintiff, a tenant's guest, had fallen off some steps and was suing the lessor. The jury was instructed that the defendant lessor would be guilty of negligence if he failed to comply with a statute requiring properly maintained handrails. The appellate court said if they gave the statute that effect, they "would be extending it to create a new area of civil liability in the relationship between landlord and tenant." Fechtman v. Stover, 139 Ind.App. 166, 199 N.E.2d 354. Another case in which the standard of care as explained to the jury in the charge was based on statutory standards of care is Tair v. Rock Investment Co., 139 Ohio St. 629, 41 N.E.2d 867. The court held that the city ordinance did not set the standard of care for several reasons, among them that the statute did not distinguish demised premises from those used in common. The court said, "[I]f the ordinance were interpreted as an intended modification of the established rule, as contended by the plaintiff, the civil liability of a landlord would be the same irrespective of whether possession and control of the premises were retained by him. A majority of the members of this court are of the opinion that if any such change is to be injected into the law, it should be based upon express legislative enactment and not upon judicial inference." In Corey v. Losse, 297 S.W. 32 (Mo.1927), plaintiff, age two years, fell from a porch when a banister came loose. Plaintiff's mother, the tenant, had frequently notified the landlord of the condition, but the lease did not require the landlord to repair. An ordinance of St. Louis said: "It shall be the duty of every owner, trustee or lessee of every tenement house to provide for and maintain the same in all parts in good repair." The court explained, quoting from Burnes v. Fuchs, 28 Mo.App. 279, 282: "[A]s between the owner and the city, the obligation under such a police regulation may well rest upon the owner; and yet, as between the owner and his tenant, the rule of the common law will prevail which casts the obligation upon the tenant." Other cases holding that such a statute does not modify the common law rules of liability are Newman v. Sears, Roebuck & Co., 77 N.D. 466, 43 N.W.2d 411, 17 A.L. R.2d 694; Garland v. Stetson, 292 Mass. 95, 197 N.E. 679; Johnson v. Carter, 218 Iowa 587, 255 N.W. 864, 93 A.L.R. 774. Although some jurisdictions, notably Michigan have held to the contrary, we regard the reasoning in the cases discussed as more persuasive.

Affirmed.

MALLARD, C. J., and PARKER, J., concur.