Sweatt v. Murphy, 97-CA-00638-SCT.

Decision Date28 January 1999
Docket NumberNo. 97-CA-00638-SCT.,97-CA-00638-SCT.
Citation733 So.2d 207,210 Miss. 1999
PartiesSteven Leslie SWEATT v. Paul MURPHY and Therese Murphy.
CourtMississippi Supreme Court

Derek Arthur Wyatt, Gulfport, Attorney for Appellant.

Bobby Atkinson, James R. Foster, II, Gulfport, Attorneys for Appellees.

EN BANC.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE FACTS AND CASE

¶ 1. In April, 1995 Steven Sweatt ("Sweatt") and his wife began renting a house in Gulfport from Paul and Therese Murphy. On April 30, 1995, Sweatt was injured on the property when a porch swing on which he was sitting fell due to a failure in the hook which connected it to the ceiling. Following the accident, Sweatt was diagnosed with a lumbar disc herniation, but the Murphys, then living in Sweden, denied any responsibility for his injuries. The Sweatts gave notice to Gloria Murphy, Paul Murphy's mother, that they were moving out and requested the return of the security deposit. The Murphys refused to return the deposit.

¶ 2. Sweatt filed a complaint in circuit court, alleging that the Murphys had failed to comply with the provisions of the Residential Landlord and Tenant Act ("RLTA"), Miss.Code Ann. § 89-8-1, et seq. (1972), specifically the RLTA's mandate to landlords/owners to comply with applicable "housing codes affecting health and safety." After discovery, Sweatt filed a motion for summary judgment, seeking an instruction that the Murphys were negligent per se in violating the provisions of the RLTA and/or the Housing Code. The trial judge denied this motion, as well as a motion filed by Sweatt to add Gloria Murphy as a defendant and to assert additional claims against the defendants.

¶ 3. On March 24, 1997, the case went to trial, and the trial judge refused to give any instructions based upon the RLTA and/or the Standard Housing Code. The jury returned a verdict for the Murphys as to the personal injury claim, but the jury returned a verdict for $700 (the amount of the security deposit) for Sweatt on his contract claim. Feeling aggrieved, Sweatt appeals to this Court.

LAW
I. Whether the trial court erred in failing to apply the Mississippi Residential Landlord and Tenant Act, Miss.Code Ann. § 89-8-1 et seq. (1972, as amended) as controlling law.
II. Whether the trial court erred in failing to apply the provisions of the Standard Housing Code, adopted by the City of Gulfport in City Ordinance No.1974, and compliance with which is made mandatory on all residential landlords in Mississippi by the Residential Landlord and Tenant Act, Miss.Code Ann. § 89-8-1 et seq. (1972, as amended), as controlling law.
III. Whether the trial court erred in failing to grant summary judgment for plaintiff.
IV. Whether the trial court erred in failing to grant plaintiff jury instruction for negligence applying the provisions of the Mississippi Residential Landlord and Tenant Act, Miss.Code Ann. § 89-8-1 et seq. (1972, as amended), and the Standard Housing Code, adopted by the City of Gulfport in City Ordinance No.1974.
V. Whether the trial court erred in failing to grant plaintiff jury instruction for negligence per se applying the provisions of the Mississippi Residential Landlord and Tenant Act, Miss. Code Ann. § 89-8-1 et seq. (1972, as amended), and the Standard Housing Code, adopted by the City of Gulfport in City Ordinance No.1974.
VI. Whether the trial court erred in failing to grant plaintiff's motion to amend judgment, and motion for judgement notwithstanding the verdict or, motion for new trial.

¶ 4. These points of error are combined as they are all related to the central issue of whether the trial judge was in error in refusing to apply the RLTA, grant summary judgment, instruct the jury, or direct a verdict in favor of Sweatt based on the provisions of the Mississippi Residential Landlord and Tenant Act and, by incorporation, the Gulfport Housing Code.

¶ 5. Miss.Code Ann. § 89-8-23(1) (1991) provides that:

(1) A landlord shall at all times during the tenancy:
(a) Comply with the requirements of applicable building and housing codes materially affecting health and safety;
(b) Maintain the dwelling unit, ... in substantially the same condition as at the inception of the lease.

Sweatt notes that this provision of the RLTA incorporates by reference the Standard Housing Code, re-enacted by the City of Gulfport in 1994. In particular, Sweatt cites § 305.5 of the Housing Code, which provides:

305.5 Stairs, Porches, and Appurtenances.
Every inside and outside stair, porch, and any appurtenance thereto shall be safe to use and capable of supporting the load that normal use may cause to be placed thereon and shall be kept in sound condition and good repair.

Sweatt argues that:

The Murphys, owners/landlords of an existing, residential dwelling in the City of Gulfport, rented to Sweatt, were at all times relevant to the Sweatt's accident under a legal duty to comply with Housing Code 305.5 and any other Housing Code provisions "materially affecting health and safety." ... Under Mississippi law, the violation of a city ordinance may become grounds for granting a negligence per se instruction. citing Hill v. London, Stetelman, and Kirkwood, Inc., 906 F.2d 204 (5th Cir.1990)

.

¶ 6. In the view of this Court, Sweatt's argument that the Murphys should be held negligent per se for all violations of the Housing Code "materially affecting health and safety" is without merit. This Court has never interpreted the RLTA as constituting a basis for holding a landlord negligent per se for all housing code violations, and such an interpretation of the RLTA would lead to inequitable and extreme results.

¶ 7. The only decision cited by Sweatt concerning the landlord's duty to comply with applicable housing codes is Justice Sullivan's concurring opinion in O'Cain v. Harvey Freeman and Sons, 603 So.2d 824 (Miss.1991) (Roy Noble Lee, Prather, Robertson, and Banks also concurred, thus giving this opinion precedential value). While these concurring justices did place importance upon the RLTA's incorporation of the applicable housing codes, it is clear that the opinion does not advocate the sort of strict liability in tort for housing code violations which Sweatt advocates in the present case. To the contrary, Justice Sullivan's O'Cain concurrence states in part that:

Recognizing that building and housing codes which affect health and safety generally are often governed locally, I advocate that the bare minimum standard for an implied warranty of habitability should require a landlord to provide reasonably safe premises at the inception of a lease, and to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless expressly waived by the tenant.

O'Cain, 603 So.2d at 833. It is thus apparent that the concurrence in O'Cain advocated a general implied warranty of habitability for residential leases, and not the sort of strict liability for all housing code defects advocated by Sweatt herein. These concurring justices did interpret the incorporation of housing code standards into the RLTA as an indication that the Legislature intended to abolish the doctrine of caveat emptor with regard to residential leases in favor of an implied warranty of habitability. This Court has never held, however, that a lessor is strictly liable in tort for each and every violation of housing code provisions, as Sweatt would seem to advocate.

¶ 8. One commentator, in discussing the concurring opinion in O'Cain, interpreted the opinion as a positive step away from a scheme under which standards of habitability are determined pursuant to housing codes, which may differ from one municipality to another. University of Mississippi Law Professor Deborah Bell writes that:

General obligations to repair, or warranties of habitability, are imposed as a matter of public policy; courts, or legislatures, have determined that residential tenants should be afforded a minimum standard of habitability in their homes. The policy applies equally to all tenants, and should not be tied to the chance decision of a municipality to enact a housing code. The better approach to general maintenance obligations in a state checkerboarded with codes is a general standard of minimum habitability with reference to available codes as a guideline.
The problem of inconsistent coverage may have been remedied by a recent Mississippi Supreme Court decision. In O'Cain v. Freeman & Sons, Inc., a majority of the court appears to have endorsed a general warranty of habitability as a supplement to the statutory obligation to comply with [housing] codes.

Deborah H. Bell, The Mississippi Landlord-Tenant Act of 1991, 61 Miss. L.J. 527, 540 (1991).

¶ 9. The implied warranty of habitability is based upon sound considerations of public policy, but this Court is cognizant of the fact that different, and sometimes competing, public policies may exist in different contexts. In this context, it is important that the standards of law be patterned on flexible concepts of law rather than inflexible, and sometimes arbitrary, regulations such as housing codes.

¶ 10. Sweatt's reliance upon a negligence per se theory is understandable, given that the facts of the present case do not support a finding that his injuries were the result of any failure to exercise due care on the part of the Murphys. Robert Evans, a metallurgist, testified on behalf of Sweatt that the porch swing fell when a metal hook which connected the swing to the ceiling broke under Sweatt's weight. Evans admitted under cross-examination, however, that a crack which was present on the hook was not detectable by casual inspection:

Q: From what I understood from your deposition and your testimony here today, the crack that developed was hidden from view. No question about that?
A: Its sheer minor size, yes. I mean, it would have been difficult to see without
. . .
Q: A microscope?
A: Or a magnifying glass.
Q: Well, but also
...

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