Appeal by plaintiff from Lupton, Judge. Judgment entered 14 July 1978 in Superior Court, Forsyth County. Heard in the Court of Appeals 24 August 1979.
Parker, Judge. Chief Judge Morris and Judge Martin (Harry C.) concur.
The sole question presented on this appeal is whether the trial court properly granted summary judgment for defendant-lessor. We hold that the did.
Upon a motion for summary judgment, the moving party bears the burden of establishing that there is no genuine issue of material fact remaining for determination, and that he is entitled to judgment as a matter of law. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972).
Plaintiff's right of recovery in this action depends upon the existence of some duty of care owed to her by defendant. The general rule governing a lessor's liability for personal injuries suffered by his tenant or by a member of the tenant's family by reason of some defective condition on the leased premises has been stated by our Supreme Court as follows: "In the absence of an express covenant to repair or keep in repair, a landlord is not ordinarily held liable for personal injuries to the tenant or his family by reason of defective conditions of the premises. And even with a covenant to repair, the general rule is that such liability will not usually be imputed." Hudson v. Silk Co., 185 N.C. 342, 343, 117 S.E. 165 (1923); see also, Moss v. Hicks, 240 N.C. 788, 83 S.E.2d 890 (1954); Fields v. Ogburn, 178 N.C. 407, 100 S.E. 583 (1919). An exception to this general rule is recognized in a case where the landlord gratuitously undertakes to make repairs. In such a case the lessor assumes the duty to exercise reasonable care in making the repairs, and proof of a breach of that duty which proximately causes injury will support a finding of liability on the part of the lessor. Carson v. Cloninger, 23 N.C. App. 699, 209 S.E.2d 522 (1974). Although not articulated in Cloninger, it has often been stated that the basis for imposing liability upon a lessor for injury proximately caused by his negligence in gratuitously making repairs is the reliance which the tenant or a member of his family places on the lessor's assurances that the repairs have been properly made. See generally, Annot. 150 A.L.R. 1373, 1379 (1944). For example, in Rubin v. Girard Trust Co., 154 Pa. Super. 257, 35 A. 2d 601 (1944), a case in which the court held a lessor liable for personal injuries suffered as the result of repairs negligently made to a porch, the court stated:
The basis of the liability of a landlord who gratuitously undertakes to make repairs performed negligently is the representation -- that the repairs have been properly made -- upon which the tenant relies to his injury. In the present case, the landlord impliedly represented to the tenant that all necessary repairs had been made . . . . When the work was done, the tenant had a right to assume that the necessary work had been ascertained and performed. Her injury resulted from her reliance on that assumption. (Citations omitted.) Id. at 260, 35 A. 2d at 602. (Emphasis added.)
Thus, where the lessor or the member of his family who suffers injuries knows that repairs have not been properly made, the necessary element of reliance is missing, and there is no basis for recovery in tort. See, e.g. Parrish v. Witt, 171 Mont. 101, 555 P. 2d 741 (1976); Rhoades v. Seidel, 139 Mich. 608, 102 N.W. 1025 (1905).
Applying these principles to the present case, plaintiff's own deposition establishes as a matter of law that she is not entitled to recover. In her deposition plaintiff testified that defendant had attempted to repair the hot water faucet handle and that when he came to her father's house on 15 July to put the handle back on, defendant told her that it was repaired. However, plaintiff also testified as follows:
Q. All right. Now I'm addressing your attention to the period of time between July 15 and July 23, do you understand that?
Q. Fine. During that period of time, do you know whether or not the hot water handle on the water control device ever fell off prior to the time when you ...