Hodge v. Nor-Cen, Inc.

• Decision Date: 14 September 1988
• Docket Number: NOR-CE,No. 27A02-8610-CV-00369,INC,R-CE,27A02-8610-CV-00369
• Citation: 527 N.E.2d 1157
• Parties: Daniel HODGE, Teresa Cornette, Marshall King, Marilyn Gallion, and Martha Short, Appellants (Plaintiffs Below), v., Lloyd Holt, Jack Colescott, Jules Walker, Michael Barney and Wayne Folkerth, Appellees Defendants Below).
• Court: Indiana Appellate Court

Page 1157

527 N.E.2d 1157

Daniel HODGE, Teresa Cornette, Marshall King, Marilyn Gallion, and Martha Short, Appellants (Plaintiffs Below), v. NOR-CEN, INC., Lloyd Holt, Jack Colescott, Jules Walker Michael Barney and Wayne Folkerth, Appellees Defendants Below).

No. 27A02-8610-CV-00369.

Court of Appeals of Indiana Second District.

Sept. 14, 1988.

Rehearing Denied Oct. 31, 1988.

Joe Keith Lewis, Fishburne & Lewis, Marion, for appellants Daniel Hodge, Teresa Cornette, Marshall King and Martha Short.

Bruce E. McLane, McLane & McLane, Marion, for appellant Marilyn Gallion.

Charles E. Herriman, Phillip E. Stephenson, Browne Spitzer Herriman Browne Stephenson & Holderead, Marion, for appellees.

SHIELDS, Presiding Judge.

Appellants-plaintiffs Martha Short, Daniel Hodge, Teresa Cornette, Marshall King, and Marilyn Gallion appeal the trial court's grant of summary judgment against them in their action against appellees-defendants Nor-Cen, Inc., Lloyd Holt, Jack Colescott, Jules Walker, Michael Barney and Wayne Folkerth (Nor-Cen), contending that issues of material fact exist which make the grant of summary judgment erroneous.

We reverse in part and affirm in part.

FACTS

The facts are undisputed. In 1980, Nor-Cen purchased a two-story building at 303 North Washington Street, Marion, Indiana and divided it into apartments. The front upstairs apartment had only one stairway exit leading outside to the ground level of the building.

In February, 1982, Short rented the downstairs front apartment and lived there with her granddaughter, Misty Cornette. In May of 1982 Short also rented the front upstairs apartment so that her daughter, Teresa Cornette, and Teresa's children, Daniel Hodge, Tiffany Cornette, and Shaya Cornette could live in the downstairs apartment. Short and Misty moved to the upstairs apartment. Teresa and the other three children, with Nor-Cen's knowledge, also moved into the upstairs apartment pending their move to the downstairs apartment. The final occupant of the upstairs apartment was Marilyn Gallion, who apparently sub-let one of the rooms in the upstairs apartment from Short without Nor-Cen's knowledge.

On the night of May 24, 1982, Short left for work just as Teresa Cornette and Marshall King returned to the apartment. The After Gallion alerted the others of the spreading fire, she and the others began searching for a means of escape. When some of the windows would not open properly, they were broken to provide a means of escape. Gallion and Teresa jumped out a window they broke in the master bedroom. King broke a living room window and helped Tiffany and Daniel to exit. King was unable to save Shaya and Misty before he exited through the window and lost consciousness. The two children died in the fire.

ground level entrance to the upstairs apartment had two doors, a storm door with a lock and a sturdy wooden door with an outside lock and an inside deadbolt lock. Teresa said she could have left these doors unlocked after she and King entered. That night, Daniel, Tiffany, and Shaya slept on mattresses on the living room floor, while Gallion and Misty slept in the front bedroom. King and Teresa went to sleep in the master bedroom. In the early morning hours, an unknown individual entered the downstairs foyer, spread an accelerant in the upstairs hallway, on the stairs, and in the lower foyer, and then started a fire which quickly spread into Short's upstairs apartment.

This action against Nor-Cen was filed in 1982 for personal injuries, based on negligence, strict liability, and breach of the warranty of habitability. In part, the complaint asserted Nor-Cen's failure to provide workable windows and a second means of egress in contravention of Marion City Ordinance No. 11-1960. On May 6, 1986, the trial court granted a motion by Nor-Cen for summary judgment, setting forth the undisputed facts and its conclusions based thereon.

ISSUES

Appellants raise two issues containing several subissues, which we restate as follows:

1. Did the trial court err in concluding that Nor-Cen's alleged violation of a city ordinance could not support appellants' negligence claims?

2. Did the trial court err in determining personal injuries are not recoverable in a breach of warranty of habitability claim? ¹

DISCUSSION

Before moving to the first issue, we repeat the oft-stated standard for reviewing a grant of summary judgment. Summary judgment is appropriate when the relevant documents together with affidavits and testimony demonstrate there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Brown v. Northern Indiana Pub. Serv. Co. (1986), Ind.App., 496 N.E.2d 794, trans. denied; Ind. Rules of Procedure, Trial Rule 56(C). This court, while standing in the shoes of the trial court, must view all evidence in a light most favorable to non-moving parties and likewise will resolve any doubt as to a fact or inference in their favor. Id. The burden is on the appellants, however, to demonstrate reversible error. Madison County Bank & Trust Co. v. Kreegar (1987), Ind., 514 N.E.2d 279. Summary judgment is appropriate when there is no dispute or conflict regarding facts which are dispositive of the dispute. Id. We may affirm the grant of summary judgment on any theory or basis found in the record, so that even though the trial court may have relied on one theory, we can review the pertinent materials and come to a conclusion supported by a different theory. See Howard v. H.J. Ricks Constr. Co. (1987), Ind.App., 509 N.E.2d 201, trans. denied.

I.

Generally, the common law does not impose a duty on a landlord to protect tenants from injuries due to defective conditions on the property once possession and control of the property has been surrendered. See Great Atlantic & Pacific Tea Co. v. Wilson (1980), Ind.App., 408 N.E.2d 144. One exception to the general rule is that a tenant may recover for injuries due to a defective condition of the rented property if the tenant shows the landlord either agreed to make repairs or was negligent in making repairs. Zimmerman v. Moore (1982), Ind.App., 441 N.E.2d 690; Hunter v. Cook (1971), 149 Ind.App. 657, 274 N.E.2d 550; Stover v. Fechtman (1966), 140 Ind.App. 62, 222 N.E.2d 281; Rene's Restaurant Corp. v. Fro-Du-Co Corp. (1965), 137 Ind.App. 559, 210 N.E.2d 385. However, here the facts reveal no agreement by Nor-Cen to repair the windows or provide a second exit. ²

Another exception is that a landlord may be held liable for personal injuries caused by latent defects known to the landlord but unknown to the tenant which the landlord fails to disclose. See Zimmerman, 441 N.E.2d at 693-94. Also, a landlord has a duty to maintain, in safe condition, parts of the building used in common by the tenants, and over which the landlord retains control. Slusher v. State (1982), Ind.App., 437 N.E.2d 97. Here, appellants failed to offer facts showing that the alleged defective conditions were latent and unknown to them, and known to Nor-Cen. Moreover, the facts establish that common areas are not implicated in appellants' claim.

Finally, the unexcused or unjustified violation of a duty prescribed by statute or ordinance constitutes negligence per se if the statute is intended to protect the class of persons in which plaintiff is included and against the risk of the type of harm which has occurred as a result of its violation. ³ Ray v. Goldsmith (1980), Ind.App., 400 N.E.2d 176. Hence, a landlord may be liable to a tenant because of negligence which arises from the violation of a duty imposed by statute or ordinance.

Appellants amended complaint alleges that their damages were proximately caused by Nor-Cen's failure to provide a second means of egress in violation of Marion City Ordinance No. 11-1960. The ordinance provides in relevant part:

Sec. 4. No person shall ... let to another for occupancy any dwelling or dwelling unit, for the purpose of living, sleeping, cooking, or eating therein, which does not comply with the following requirements....

Sec. 4.9 Every dwelling unit shall have a minimum of two safe, unobstructed means of egress leading to safe and open space at ground level.

The trial court found, based on a reading of Sec. 5.2 ⁴ of the same ordinance, that the two egress requirement of the ordinance was not a safety measure, but promulgated only to assure adequate light and ventilation. While it is true that not all the sections of the ordinance are safety measures, Section 4.9 clearly anticipates the increased risk of injury to a dwelling's occupants if they have but one route of egress in case of fire or other disasters necessitating rescue or escape. This leads us to the inescapable conclusion it was enacted as a safety measure. In addition, other inhabitants and reasonably-anticipated guests are within the class of persons the ordinance was enacted to protect. The duties and liabilities a landlord owes to the tenant extend to the tenant's social guests. See Slusher v. State (1982), 437 N.E.2d at 99. Therefore, appellants made a prima facie showing that the ordinance imposed upon Nor-Cen a duty to provide a second means of egress, the breach of which constitutes negligence per se in the absence of justification or excuse.

Nor-Cen argues that summary judgment was appropriate because its failure to provide other means of egress did not proximately cause appellants' injuries. In support of this claim, Nor-Cen invokes Welch v. Railroad Crossing Inc. (1986), Ind.App., 488 N.E.2d 383 and the Restatement (Second) of Torts Sec. 448 (1965). The principle, as argued by Nor-Cen, simply stated, is that an unforeseeable, willful criminal act by a third party which intervenes between the alleged negligent act and the injury, breaks the causal connection between the negligent act and the injury, and, therefore, liability does not exist. Nor-Cen posits that the only reasonable inference arising from the undisputed facts...