Zimmerman v. Moore, 1-1081A302

• Decision Date: 03 November 1982
• Docket Number: No. 1-1081A302,1-1081A302
• Citation: 441 N.E.2d 690
• Parties: Bernice ZIMMERMAN, Defendant-Appellant, v. Jean MOORE and Davey Moore, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 690

441 N.E.2d 690

Bernice ZIMMERMAN, Defendant-Appellant, v. Jean MOORE and Davey Moore, Plaintiffs-Appellees.

No. 1-1081A302.

Court of Appeals of Indiana,

First District.

Nov. 3, 1982.

Robert L. Hartley, Jr., C. Wendell Martin, Martin & Hartley, Indianapolis, for defendant-appellant.

W.F. Conour, Conour & Davis, Indianapolis, Delbert H. Brewer, Brewer & Lowe, Greencastle, for plaintiffs-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant Bernice Zimmerman (Zimmerman) appeals a judgment entered in the Putnam Circuit Court upon a jury verdict in favor of plaintiffs-appellees Jean Moore and Davey Moore (Moores) in a premises liability action seeking damages for injuries sustained when Jean Moore fell on the back steps and seriously fractured her left wrist. The jury awarded the Moores $57,200.

We reverse.

STATEMENT OF THE FACTS

On February 10, 1975, after inspecting the premises, Moores orally leased a three-room single family residence from Zimmerman for $80 per month. Zimmerman was not in the business of renting property, but owned this residence, her former home, by virtue of a divorce settlement with a prior husband. Upon her remarriage she occupied her new husband's home, and Zimmerman's property was rented to Moores on a month to month basis. The rear steps, the subject of this litigation, were replaced in 1973. The steps ascended to the bottom of the rear door without the benefit of a landing, and, when opened, the back door swung out over the steps. A rail existed only on one side of the rear stairway. There was testimony that because of the foregoing design, the steps violated various regulatory sections of the One and Two Family Dwelling Code (Code) of the Administrative Building Council (ABC) promulgated by that body as authorized in Ind.Code 22-11-1-10.

There was evidence that after the inception of the lease, Moores considered the steps dangerous and requested Zimmerman to repair them. She agreed, and said the steps would be fixed as soon as her husband was feeling better. The steps were never repaired. On December 23, 1975, while attempting to mount the steps and enter the rear door, Jean Moore fell and suffered a comminuted fracture of her lower left arm.

Moores brought this action, she for her personal injuries, he for loss of consortium, alleging three separate legal theories: (1) negligence (including negligence per se), (2) breach of covenant to repair, and (3) breach of an implied warranty of habitability.

The trial court, after relevant instructions, submitted the case to the jury on all three theories. The jury returned a single verdict for Jean Moore and a single verdict for Davey Moore, without any indication upon which theory the verdicts were entered.

Zimmerman presents a shopping list of 25 assignments of error. Since we reverse, we will address only two errors. The first and principal issue assigned by Zimmerman is contained in eight assignments of error, all of which concern the doctrine of implied warranty of habitability. The second issue concerns the Court's Final Instruction No. 11 on negligence per se. The jury, over Zimmerman's objection, essentially was instructed, in the Court's Final Instructions No. 1 and 21, that the oral lease contained an implied warranty of habitability, a breach of which would give rise to liability on the part of Zimmerman. The jury was also instructed by Moores' Instruction No. 11, over Zimmerman's objection, that the provisions of the building codes promulgated by the ABC are applicable to single-family residences, and the instruction concluded with the following statement:

"If you find that either party violated any or all of these provisions of the one and two family dwelling code and that such violation or violations caused the plaintiffs injury then you may find negligence per se on the part of the defendant or contributory negligence per se on the part of the plaintiff without any additional proof of negligence."

ISSUES

The issues may be stated as follows:

I. Does an implied warranty of habitability apply to the rental of a single-family dwelling by an owner not in the business of renting; and

II. Is the violation of the building code promulgated by the ABC, an administrative agency, negligence per se.

DISCUSSION AND DECISION

As a preliminary matter we must discuss the standard of review on appeal relative to erroneous instructions and instructions on an invalid theory of recovery.

An erroneous instruction will be presumed to have influenced the result in a trial unless it appears that the verdict could not have been different under proper instructions. Probst, Receiver v. Spitznagle, (1939) 215 Ind. 402, 19 N.E.2d 263. Stated in a different manner, it must be assumed that an instruction which misstates the law has influenced the result at trial unless it appears from the evidence or record that the verdict under a proper instruction could not have been different. P-M Gas & Wash Company, Inc. v. Smith, (1978) Ind.App., 383 N.E.2d 357. It has further been stated that the giving of an erroneous instruction is grounds for reversal only where the jury's verdict could have been predicated upon the instruction and we will look to see if the appellant has demonstrated harm. Lewis v. Davis, (1980) Ind.App., 410 N.E.2d 1363. To determine whether the jury was misled we must examine the evidence and record to see if under proper instructions the verdict could have been different. Pardue v. Seven-Up Bottling Co. of Indiana, (1980) Ind.App., 407 N.E.2d 1154. Giving a bad instruction is not cured by giving a correct instruction. Deckard v. Adams, (1965) 246 Ind. 123, 203 N.E.2d 303; Childs v. Rayburn, Administrator, (1976) 169 Ind.App. 147, 346 N.E.2d 655. It is not the province of appellate review to speculate on whether a jury reached the decision they did on the proper instructions given or the improper ones. See Pardue, supra.

Issue I. Implied warranty of habitability

As already stated, the Moores proceeded upon three separate theories, (1) negligence, (2) breach of covenant to repair, and (3) breach of an implied warranty of habitability. We first observe that Issues 1 and 2 are a part of the same theory and will not be discussed in this opinion. We would note, however, that as was stated in Stover v. Fechtman, (1966) 140 Ind.App. 62, 222 N.E.2d 281, in order to recover on a theory of negligence a plaintiff lessee must show a duty on the part of the lessor and a breach of that duty. Thus, a lessee can recover by showing that the landlord had expressly covenanted to repair the leased property at the inception of the lease.

Zimmerman objected to the trial court's giving two conflicting and contradictory instructions on the breach of an implied warranty of habitability, contending that this doctrine is not a proper theory of recovery in this case since "Indiana does not recognize any implied warranty of habitability with respect to the rental of a one or two family dwelling." Zimmerman pointed out in her objection to the trial court that the Court's Final Instruction No. 1 misstated the law in providing that an implied warranty of habitability extended to both patent and latent defects existing at the inception of the lease. Also, Zimmerman objected to the court's giving Final Instruction No. 21, in which the court instructed the jury that only "latent" defects at the inception of the lease are covered by the implied warranty doctrine. This instruction, as Zimmerman argues, directly conflicts with what the court told the jury in Final Instruction No. 2. As a result, Zimmerman contends the jury was misled by the court's having given contradictory and confusing instructions on a theory of recovery which does not apply to the facts of this case under any circumstances.

Generally, the traditional view of the landlord's liability for tortious injuries to a tenant is as follows: where the tenant's injuries are caused by hidden defects known to the landlord but unknown to the tenant, a landlord can incur liability if he has failed to give notice of the defects to the tenant. Stover, supra. However, no liability accrues to the landlord where he is without knowledge of the latent defect. Furthermore, a landlord is not liable for personal injuries to a tenant for defective premises unless he expressly agrees to repair and is negligent in doing so. Hunter v. Cook, (1971) 149 Ind.App. 657, 274 N.E.2d 550. See W. Prosser, Handbook of the Law of Torts Sec. 63 (4th ed. 1971). A landlord is also liable for affirmative acts of negligence. Contributory negligence and assumption of risk are available to a landlord as defenses, and this is so even where the landlord contracted to repair and did not repair. Coleman v. DeMoss, (1969) 144 Ind.App. 408, 246 N.E.2d 483; Stover, supra; See 18 I.L.E. Landlord and Tenant Sec. 251 et seq. (Supp.1981). The Restatement (Second) of Torts (1965) Sec. 358, states the rule that only known undisclosed latent defects are actionable. As the Indiana Supreme Court further stated in Stover, supra, 222 N.E.2d at 284, where the defective steps were in plain view, "[t]hey were not the type defect which a lessee could not reasonably be expected to discover."

In Great Atlantic & Pacific Tea Company, Inc. v. Wilson, (1980) Ind.App., 408 N.E.2d 144, we analyzed the traditional rules on premises negligence and refused to apply an implied warranty of habitability to the surrender of a lease. There we noted that much similarity exists between vendors and lessors in considering the residual liability of a transferor, whether the transfer is by sale or lease. The triggering factor is the transfer of possession and control. One who lacks possession and control of property normally should not be held liable for injuries which he is no longer in a position to prevent. Wilson, supra.

We shall now examine the implied warranty of habitability doctrine as it has been developed in the case law on sales. In Theis v....