Horvath v. Burt ( 1982 )

OPINION

By the Court,

Springer, J.:

Appellant Ann Horvath sought damages from her former landlord Jerald Burt for injuries sustained during a fire in the apartment house where she lived. After a jury verdict in favor of the landlord, Horvath moved for a new trial. The motion was denied. Horvath appeals from the jury verdict and the order denying her motion for a new trial.

Horvath urges that several errors were committed by the trial court. Because we conclude that the trial court committed reversible error by instructing the jury on contributory negligence, we need not consider the other issues presented.

Ordinarily, the existence of contributory negligence is a question of fact; it becomes a question of law when the evidence will support no other inference. Wagon Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962). An examination of the record reveals no evidence to justify a finding of contributory negligence.

Horvath, a woman of 64 years, was awakened in the middle of the night by shouts of warning. She opened the door to the hall and found it to be filled with smoke. A witness testified that there was a “terrific amount of flame” which permitted “no way of going downstairs at all.” Trapped, Horvath broke an outside window and positioned herself outside the building by hanging from the sill with her feet touching an inclined, roof-like projection immediately below her. She subsequently jumped or fell, seriously injuring herself.

Respondent claims that the facts establish that Horvath’s negligence contributed to her injuries. This contention is based on the testimony of a police officer who assisted at the fire. Respondent argues that the police officer had told Horvath to wait, and that had she done so, she would have been rescued without injury. Respondent’s position, apparently, is that Horvath had a duty to hold onto the wet sill a little longer than she did.

An examination of Officer Cordelia’s testimony does not support any inference of negligence on the part of Mrs. Horvath. Cordelia never identified Horvath; furthermore, there is no indication that he specifically warned her or that, if warned, she heard the warning. Cordelia testified that he saw some people in the window of the northeast corner of the building. The building was engulfed in fire, and the people in the window were screaming for help. Cordelia yelled to the people to wait for help since the fire department was nearby. He then ran to another part of the yárd, and in five or ten seconds, he returned with a ladder which he used to help people exit. It was only after returning with the ladder that he noticed a woman lying on the ground. The foregoing testimony at best merely indicates that Cordelia had the good fortune to find a ladder; and that discovery, coupled with his quick response, prevented others in the building from having to jump or fall.

Under the circumstances of this case, we cannot find that the giving of an instruction on contributory negligence was harmless. There is certainly evidence in this case from which a jury could reasonably have concluded that respondent’s failure to inspect the wiring was either common law negligence or negligence per se. We must therefore conclude that appellant was prejudiced by the giving of the improper instruction.

NRS 118A.290 imposes a duty on landlords to maintain the electrical wiring and equipment of a dwelling unit in safe condition.¹ The statute was clearly designed to protect a class of persons which included appellant; and the injury resulting from an attempt to escape the fire may reasonably be said to fall within the risk of harm contemplated in the statute. See W. Prosser, Law of Torts 200 (4th ed. 1971). Respondent claims that he was under no duty to inspect or repair the wiring since it was located in an inconvenient place under the building. We do not find this argument persuasive. Respondent was aware that the wiring in the lower portion of the building was approximately seventy-five years old. That fact alone may be sufficient to infer that respondent had notice. Electricity is a highly dangerous force, and the risks involved in its use may place a duty of inspection upon the party having control of the premises. Cutler v. P.S.P.M. Co., 34 Nev. 45 (1911).² Moreover, the age of the wiring in the immediate case underscores the importance of inspection. Cf. Leavitt v. Glick Realty Corp., 285 N.E.2d 786 (Mass. 1972) (failure to inspect electrical wiring over a period of twenty-seven years held evidence of negligence). There was, however, even more direct evidence that respondent was aware of the dangerous condition. The tenants had made numerous complaints to the management concerning frequent power outages and blown fuses. Respondent conceded at trial that he was aware of at least some of these complaints. To say that under these facts respondent was relieved of his legal duty merely because it would be inconvenient to inspect or repair the wiring would be to vitiate the objective of the statute.

Since appellant may reasonably argue that a different result might have obtained in the absence of the erroneous instruction, reversal is warranted. Sec Driscoll v. Erreguible, 87 Nev. 97, 102, 482 P.2d 291, 295 (1971).

The judgment of the trial court and order denying appellant’s motion for a new trial are therefore reversed.

Gunderson, C. J., Manoukian, J., and Zenoff, Sr. J.,³ concur.

1 NRS 118A.290 Habitability of dwelling unit.

1. The landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. A dwelling unit is not habitable if it substantially lacks:

(e) Electrical lighting, outlets, wiring and electrical equipment which conformed to applicable law when installed and are maintained in good working order.

2 In Cutler, a decision which was essentially contemporaneous with the time of the electrical wiring in the immediate case, this court said,

We can see no error in submitting to the jury, as a matter of law, the duty of defendants, owning or controlling an electric wire dangerous to life and limb, [to make] an inspection as to the safety of said wire in this age . . . where this newly discovered, life-destroying element is conveyed . . . into dwellings ... it is both just and right that corporations and individuals . . . having control of wires conducting electricity . . . should be compelled at all times to thoroughly and frequently inspect the wires, to the end that they may at all times, in so far as it is within the reasonable power of man, render them safe. . . .

Id. at 62-63.