Linda JACKSON, Administratrix of the Estate of Mary Magdalene Jackson
v.
The HOUSING AUTHORITY OF the CITY OF HIGH POINT.
No. 8318SC1118.
Court of Appeals of North Carolina.
March 5, 1985.*297 Kennedy, Kennedy, Kennedy & Kennedy by Annie Brown Kennedy, Harvey L. Kennedy, and Harold L. Kennedy, III, Winston Salem, for plaintiff-appellant.
Henson & Henson by Perry C. Henson and Jack B. Bayliss, Jr., Greensboro, for defendant-appellee.
PHILLIPS, Judge.
Plaintiff first contends that the trial court erred in directing a verdict against her on the ordinary negligence claim at the close of all the evidence. We agree. In directing a verdict on this claim the court did not specify what the perceived *298 weakness in plaintiff's case was and we will briefly address the possibilities that the record suggests. Certainly the claim is not barred because of defendant's status as an arm of the City of High Point in operating a low income housing project; such activities are proprietary, rather than governmental, and municipalities are legally accountable therefor on the same basis as other defendants. Sides v. Cabarrus Memorial Hospital, Inc., 287 N.C. 14, 213 S.E.2d 297 (1975); Carter v. City of Greensboro, 249 N.C. 328, 106 S.E.2d 564 (1959). Nor was the claim dismissable because evidence of defendant's negligence was lacking. Defendant clearly had a duty to maintain the flue of the gas heater in Mrs. Jackson's apartment in a safe condition, and viewed favorably for the plaintiff, as the law requires, the evidence in our opinion was sufficient to support the inference that decedent's death proximately resulted from the defendant's failure to exercise due care in preventing the flue from becoming clogged by dead birds and other debris. The evidence shows that though defendant became aware of this lethal hazard to its tenants more than a year earlier when three other tenants died from carbon monixide poisoning due to a heater flue becoming clogged by dead birds and other debris, it nevertheless took no steps to prevent the flue in Mrs. Jackson's apartment from being clogged by the same means. Nor was the claim dismissable on the grounds of Mrs. Jackson's contributory negligence; while the evidence tends to support defendant's claim that she was contributorily negligent, that is not the only reasonable inference that can be drawn from it, and the issue is thus one of fact for the jury. Lenz v. Ridgewood Associates, 55 N.C.App. 115, 284 S.E.2d 702 (1981), disc. rev. denied, 305 N.C. 300, 290 S.E.2d 702 (1982). But contrary to plaintiff's contention the evidence presented does not give rise to the doctrine of res ipsa loquitur for several reasons. See, McPherson v. High Point Memorial Hospital, Inc., 43 N.C.App. 164, 258 S.E.2d 410 (1979).
Defendant's negligence is also inferable on the grounds that the evidence presented tends to show that its failure to maintain the heater flue in a safe condition violated certain statutes and a local ordinance pertaining to the maintenance of housing that is rented to others. A statute or ordinance designed for the protection of the public is a "safety" enactment and its violation constitutes negligence per se, unless the legislative body provides otherwise; and where a statute or ordinance is not a "safety" enactment but sets a standard of conduct, its violation may be evidence of negligence. Gore v. Ball, Inc., 279 N.C. 192, 182 S.E.2d 389 (1971).
One statute that defendant may have violated, according to the evidence, is G.S. 42-42, which is part of the Residential Rental Agreements Act, and in pertinent part provides as follows:
(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;
....
(4) Maintain in good and safe working order and promptly repair all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances supplied or required to be supplied by him provided that notification of needed repairs is made to the landlord in writing by the tenant except in emergency situations.
Whether this is a "safety statute," as it certainly appears to be, need not be discussed, since the General Assembly expressly provided in G.S. 42-44(d) that violations of it are not negligence per se; but as this Court has held, violations of G.S. 42-42 are evidence of negligence. Brooks v. Francis, 57 N.C.App. 556, 291 S.E.2d 889 (1982).
Another statute defendant may have violated, according to the evidence, is G.S. 160A-425, a part of Part 5, Article 19 of Chapter 160A, which makes it the responsibility of municipalities to inspect buildings within their boundaries for hazardous conditions and makes it the responsibility *299 of the owners of inspected buildings to eliminate the hazards reported to them. The statute reads as follows:
When a local inspector finds any defects in a building, or finds that the building has not been constructed in accordance with the applicable State and local laws, or that a building because of its condition is dangerous or contains fire hazardous conditions, it shall be his duty to notify the owner or occupant of the building of its defects, hazardous conditions, or failure to comply with law. The owner or occupant shall each immediately remedy the defects, hazardous conditions, or violations of law in the property he owns. (Emphasis supplied).
Since the obvious purpose of this statute is to protect the lives and limbs of occupants of the buildings affected, and the legislature has not provided otherwise, violations of it are negligence per se. See, Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333 (1955). The evidence presented in this case tends to show that defendant violated this statute by failing to take effective measures to prevent the flue in Mrs. Jackson's apartment from becoming clogged after the City's inspector notified it more than a year earlier that a similar flue in another apartment had become clogged with dead birds and other debris and caused the deaths of three tenants.
Still another enactment that defendant may have violated according to the evidence is Section 9-1-79 of the High Point Ordinances, which in pertinent part provides as follows:
The following shall constitute the minimum standards and requirements for residential buildings and shall be pertinent in determining fitness for human habitation.
....
(5) Heating requirements.
a. Every building and every dwelling unit shall be weatherproof and capable of being adequately heated. The heating equipment in every dwelling unit shall be maintained in a safe workable condition.
b. Heating system, if provided, shall be properly installed and maintained in safe working condition.
Clearly, this ordinance is also designed to promote the safety of the general public and a violation of it is negligence per se. Bell v. Page, 271 N.C. 396, 156 S.E.2d 711 (1967). Whether the defendant violated any of these enactments is, of course, for a jury to say; but if a jury should find that defendant violated either the above ordinance or G.S. 160A-425, its negligence would be established, subject of course to it also being found that Mrs. Jackson's death proximately resulted from the violation. A violation of G.S. 42-42, however, if such should be found, would only be evidence of negligence.
The court dismissed plaintiff's claim for punitive damages on the pleadings and later directed a verdict against plaintiff on the claim of "malicious, wilful or wanton injury, or gross negligence." The directed verdict would seem to be redundant, but plaintiff contends both actions by the court were error and we will discuss them together. The question presented, one of first impression in this state so far as our research discloses, is whether punitive damages can be recovered from a municipal corporation in a wrongful death case. It is our opinion that such damages are recoverable in an appropriate case and that the court erred in its rulings to the contrary.
It is true, though, that traditionally municipal corporations have been exonerated from liability for punitive damages in personal injury cases on the grounds of public policy. 18 McQuillin Municipal Corporations Sec. 53.18a (3d ed. 1977 & Supp.1983); Annotation, 1 A.L.R. 4th 448 (1980). And with regard thereto, our Supreme Court has said:
We believe that public policy considerations mitigating against allowing assessment of punitive damages are compelling and are applicable to the actions of municipal corporations without regard to *300 whether the function is governmental or proprietary. We hold that in the absence of statutory provisions to the contrary, municipal corporations are immune from punitive damages.
Long v. City of Charlotte, 306 N.C. 187, 208, 293 S.E.2d 101, 114-115 (1982). But, of course, municipal immunity is rooted in the common law, Comment, Local Government Sovereign Immunity: The Need for Reform, 18 Wake Forest L.Rev. 43 (1982), whereas the right to sue for wrongful death in this state did not exist at common law and was created by statute. Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968). As to the damages that may be recovered in a wrongful death action, G.S. 28A-18-2 provides, in pertinent part:
(b) Damages recoverable for death by wrongful act include:
....
(5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence... (Emphasis supplied).
Thus, that in this state punitive damages are generally recoverable in an appropriate wrongful death case is plain. It is also plain that no proviso in our Wrongful Death Act or elsewhere in the General Statutes specially exempts municipalities from such liability. This leads us inevitably to the conclusion that punitive damages are recoverable from municipalities in wrongful death cases on the same basis as from other tort feasors. The plain, positive provisions of the statute contain no basis for supposing that the legislature intended to exempt municipalities therefrom. Furthermore, if the statutory language was thought to be ambiguous and it was deemed appropriate to determine what the legislature's intentions were, we would hesitate to conclude that it intended to deny occupants of city-operated public housing, who are mostly poor and disadvantaged, the same recovery that is available to those renting from private landlords. Such a policy would be grossly discriminatory on its face, Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977); Housing for All Under Law, 1978 A.B.A. Advisory Commission on Housing and Urb. Growth Rep. 142-43; 415-416 (R. Fishman ed.), and should not be attributed to the General Assembly without good reason, which their enactments do not contain. As the Iowa Supreme Court observed in a similar case, if the legislature had intended to exempt municipal corporations from liability for punitive damages in wrongful death cases it could have easily done so. Young v. City of Des Moines, 262 N.W.2d 612, 1 A.L. R.4th 431 (Iowa 1978).
We turn now to plaintiff's contentions that the trial court erroneously directed a verdict for defendant on the breach of implied warranty, breach of contract, and strict liability claims. We find merit in plaintiff's contention regarding the implied warranty of habitability claim. Javins v. First National Realty Corp., 428 F.2d 1071 (D.C.Cir.), cert. denied, 400 U.S. 925, 91 S. Ct. 186, 27 L. Ed. 2d 185 (1970), cited by plaintiff, stands for the proposition that a landlord impliedly warrants to his tenant that leased or rented residential premises are fit for human habitation, at least to the extent of being free from observable conditions that render the premises unsafe or unsanitary. Javins further requires that applicable housing codes be read into the housing contract or lease agreement and made part of the implied warranty. But resort to federal law is unnecessary. Our Residential Rental Agreements Act, G.S. 42-38 et seq., codifies the essential points in Javins. See, G.S. 42-42. Thus, to the extent that any implied warranty may be said to exist, it is co-extensive with the Residential Rental Agreements Act; and as discussed above, violations of the Act, while not negligence per se, are evidence of negligence. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889 (1982).
With respect to the breach of contract claim plaintiff argues only that the trial court never disposed of it, and it is true *301 that this claim was not mentioned by the court in any of its directed verdict entries. Nevertheless, this argument is without merit. As defendant points out, the record and transcript show that after the court entered the partial directed verdict at the close of plaintiff's evidence the trial proceeded on the negligence issue alone, and plaintiff failed to either question the court about the contract claim or make it the point of a specific exception or seek any post-trial relief relative to it. Having failed to call this alleged error to the court's attention, it may not be asserted now. Rule 10(a), N.C.Rules of Appellate Procedure.
With respect to the directed verdict on the strict liability claim, plaintiff argues that defendant is strictly liable because (1) it violated the implied warranties of habitability and fitness for a particular purpose; and (2) the maintenance of the gas heater was an ultrahazardous activity. This argument is without merit. A landlord's liability in this state for breach of warranty to his tenant is not governed by the doctrine of strict liability, but by the Residential Rental Agreements Act, G.S. 42-38 et seq., violations of which are but evidence of negligence, as heretofore noted. Nor is heating an apartment house or other dwelling with gas, an activity safely engaged in by millions for generations, an ultrahazardous activity such as blasting with high explosives, for which the owner is strictly liable without regard to fault. Trull v. Carolina-Virginia Well Co., 264 N.C. 687, 142 S.E.2d 622 (1965).
Plaintiff also contends that the trial court erred in refusing to allow two of her witnesses to testify as experts on certain issues. Since these questions are not essential to a disposition of the appeal and may not arise at the next trial we shall not discuss them. We do commend to the trial court, however, our opinion in the recent case of Powell v. Parker, 62 N.C.App. 465, 303 S.E.2d 225, 226, disc. rev. denied, 309 N.C. 322, 307 S.E.2d 166 (1983). In that case, similar questions relating to the qualifications of expert witnesses and the use of hypothetical testimony were considered. We also point out that the hypothetical question is no longer required for expert testimony in this state. G.S. 8-58.12.
Pointing out that the compensatory damages issue, which the trial court did not rule on in dismissing the various claims, could involve some very difficult problems, indeed, plaintiff asks that we expedite the re-trial by ruling on these questions now. Though plaintiff's concern is not without basis we nevertheless decline the invitation. Our role is to review rulings made by trial courts, rather than chart the course of trials yet to be conducted; too, the effort could be wasted since it is uncertain how the next trial will develop.
As to the dismissal of plaintiff's claim based on negligencereversed.
As to the dismissal of plaintiff's claim for punitive damagesreversed.
As to the dismissal of plaintiff's claim based on implied warrantyreversed.
As to the dismissal of plaintiff's claim based on strict liabilityaffirmed.
As to the dismissal of plaintiff's claim based on contractaffirmed.
Reversed in part; affirmed in part; new trial.
JOHNSON, J., concurs.
WEBB, J., dissents.
WEBB, Judge, dissenting.
I dissent from that part of the majority opinion which holds it was error to dismiss plaintiff's claim for punitive damages. I do not believe we have to decide whether punitive damages may be had in a wrongful death claim against a municipal corporation. We do not reach that question because there is not sufficient evidence for the jury to find maliciousness, wilfulness, wantonness or gross negligence. Without this evidence the question of punitive damages does not arise. I concur in the rest of the opinion.