Collingwood v. General Elec. Real Estate Equities, Inc.

• Citation: 324 N.C. 63,376 S.E.2d 425
• Decision Date: 09 February 1989
• Docket Number: No. 240PA88,240PA88
• Court: United States State Supreme Court of North Carolina
• Parties: Shirley O. COLLINGWOOD v. GENERAL ELECTRIC REAL ESTATE EQUITIES, INC., Walsh Properties, Inc., and Sharon Kay Nelms.

Page 425

376 S.E.2d 425

324 N.C. 63

Shirley O. COLLINGWOOD v. GENERAL ELECTRIC REAL ESTATE EQUITIES, INC., Walsh Properties, Inc., and Sharon Kay Nelms.

No. 240PA88.

Supreme Court of North Carolina.

Feb. 9, 1989.

Shelley Blum, Charlotte, for plaintiff-appellant.

Smith Helms Mulliss & Moore by Peter J. Covington and Scott P. Vaughn, Charlotte, for General Elec. Real Estate Equities, Inc., defendant-appellee.

Golding, Crews & Meekins by James P. Crews, Charlotte, for Walsh Properties, Inc., defendant-appellee.

MARTIN, Justice.

During the early morning hours of 19 February 1984, a fire broke out in building 7709 at the Cedar Creek apartment complex in southeastern Mecklenburg County. Plaintiff, a third-floor resident of building 7709, sustained serious personal injuries when she jumped from her apartment window in an attempt to escape the fire. Plaintiff filed this negligence action against General Electric Real Estate Equities, Inc. (G.E.), owner of the apartment complex, Walsh Properties, Inc. (Walsh), manager of the complex, and Sharon Kay Nelms, resident of the apartment in which the fire originated. The sole question for review on appeal is whether the trial court properly granted summary judgment in favor of defendants G.E. and Walsh. We hold that summary judgment for Walsh was proper and that summary judgment for G.E. was not. Accordingly, for the reasons set forth below, the decision of the Court of Appeals is affirmed in part and reversed in part.

The record reveals that the fire started in an electric blanket used by defendant Nelms in her apartment, which was located one floor below plaintiff's apartment on the opposite side of the common passageway. Despite the efforts of Nelms and some neighbors to contain the fire, the flames spread from the Nelms apartment into the common passageway, up the stairs, and into the upper-level passageway outside plaintiff's door. Plaintiff, wakened by shouts and the sound of a whistle, looked out her bedroom window and saw a crowd of people and the "reflection from a fire." She ran down the hallway to the other end of her apartment and opened the door leading into the passageway, whereupon she was confronted by "sheets of flame." She then closed the apartment door, retreated to the bedroom, and jumped out the window. Plaintiff broke her back in several places and shattered her wrist in the fall.

In her complaint plaintiff alleged that defendant Nelms was negligent in her care and maintenance of the electric blanket and in failing to wake plaintiff or to extinguish the fire when it was small. The complaint also alleged that defendants G.E. and Walsh were negligent in the design and construction of Cedar Creek in the following respects: (a) constructing the apartment complex using materials conducive to the rapid spread of fire, such as untreated wooden siding and cedar shakes; (b) constructing the apartment buildings with a lengthy escape path made entirely of untreated wood but without a sprinkler system; (c) constructing the individual apartments with only one door and one escape path; and (d) failing to install an alarm system to warn residents before the escape path was engulfed in flames. The trial court granted summary judgment in favor of all three defendants. The Court of Appeals affirmed the order of summary judgment as to defendants G.E. and Walsh but reversed as to defendant Nelms. We granted plaintiff's petition for discretionary review. Because defendant Nelms did not file a brief with this Court, we address the summary judgment issue only with respect to defendants Walsh and G.E.

The North Carolina Rules of Civil Procedure provide that summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C.R.Civ.P. 56(c). The party moving for summary judgment has the burden of establishing the lack of any triable issue. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). The movant may meet this burden by proving that an essential element of the opposing party's claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982); Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial. Dickens, 302 N.C. 437, 276 S.E.2d 325. All inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972).

To establish actionable negligence at common law, a plaintiff must show the following: (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of the injury. Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E.2d 559 (1984).

At the outset we dispose summarily of the inquiry regarding defendant Walsh. The Court of Appeals held that summary judgment for defendant Walsh was proper because Walsh, as manager of Cedar Creek, was not responsible for the alleged defects in the design and construction of the apartments. We agree that the pleadings, affidavits, and other materials of record fail to establish that Walsh owed plaintiff a legal duty with respect to the design and construction of the complex. We therefore affirm the Court of Appeals decision as it applies to Walsh and turn our attention to the remaining defendant, G.E.

In this case, G.E. and the Court of Appeals relied on N.C.G.S. § 42-42, part of the Residential Rental Agreements Act, to determine the applicable standard of care. Section 42-42(a) provides that a landlord shall:

(1) Comply with the current applicable building and housing codes ... to the extent required by the operation of such codes; ...

(2) Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;

(3) Keep all common areas of the premises in safe condition; and

(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....

In its brief G.E. argues that subsection (a)(1) is the only subsection pertinent to plaintiff's allegations of unsafe design and construction; therefore, it necessarily establishes the applicable standard of care. That standard, according to G.E., is compliance with state and local building and housing codes. G.E. points out that Cedar Creek's plans, specifications, materials, and construction conformed in all respects to the North Carolina State Building Code as well as to the codes and regulations of Mecklenburg County and the city of Charlotte. G.E. insists that plaintiff must demonstrate some violation of these codes, and thus of section 42-42(a)(1), in order to support her allegation that defendant breached the standard of care, an essential element of her claim.

In some instances, the standard of conduct required of a defendant in a particular situation is prescribed by legislative enactment rather than by the principles of the common law. "The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to endanger the person or property of others." Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893, 897 (1955). Where there is an allegation of the violation of a statute constituting negligence per se, the statute itself establishes the standard of care as to that allegation. However, this is not such a case. By providing that "[a] violation of this Article shall not constitute negligence per se," N.C.G.S. § 42-44(d), the legislature left intact established common-law standards. Bolkhir v. N.C. State Univ., 321 N.C. 706, 365 S.E.2d 898 (1988); Cowan v. Transfer Co., 262 N.C. 550, 138 S.E.2d 228 (1964); Bradley v. Wachovia Bank & Trust Co., 90 N.C.App. 581, 369 S.E.2d 86 (1988); Brooks v. Francis, 57 N.C.App. 556, 291 S.E.2d 889 (1982); Lenz v. Ridgewood Associates, 55 N.C.App. 115, 284 S.E.2d 702 (1981), cert. denied, 305 N.C. 300, 290 S.E.2d 702 (1982). The common-law standard of care is a generalized one of "due care" on the part of the defendant. The standard of due care is always the conduct of a reasonably prudent person under the circumstances. Bolkhir, 321 N.C. 706, 365 S.E.2d 898.

Thus the question is not simply whether defendant G.E. complied with applicable housing codes and regulations, or with the other requirements of N.C.G.S. § 42-42, but whether in a larger sense defendant, as owner of the apartments, exercised due care for the safety of Cedar Creek residents in the design and construction of the complex. "While compliance with a statutory standard is evidence of due care, it is not conclusive on the issue." W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 30 (5th ed. 1984) [hereinafter Prosser & Keeton]. See also Restatement (Second) of Torts § 288C (1965). The purpose of the North Carolina Building Code, authorized by article 9, chapter 143 of the General Statutes, is to establish certain minimum standards as to materials, design, and construction of buildings "for the...