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Sullivan v. Smith

Filed: April 6, 1982.

DANIEL J. SULLIVAN AND WIFE, MARY T. SULLIVAN
v.
K. J. SMITH, INDIVIDUALLY AND D/B/A K. J. SMITH BUILDERS & REALTY, AND GIRRIE M. HOOKER, JR.



Appeal by plaintiff from Collier, Judge. Order entered 23 February 1981 in Superior Court, Guilford County. Heard in the Court of Appeals 13 January 1982.

Whichard, Judge. Judges Clark and Arnold concur.

Whichard

Plaintiffs' sole contention is that the court erred in granting defendant Smith's motion for judgment NOV. We agree, and accordingly reverse.

A motion for judgment NOV "shall be granted if it appears that the motion for directed verdict could properly have been granted." G.S. 1A-1, Rule 50(b)(1). A directed verdict or a judgment NOV for a defendant is improper when a plaintiff's evidence, taken as true and considered in the light most favorable to him, with all inferences made and contradictions resolved in his favor, is sufficient as a matter of law to justify a verdict for plaintiff. Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976); Horton v. Insurance Co., 9 N.C. App. 140, 175 S.E.2d 725 (1970); see also Dickinson v. pake, 284 N.C. 576, 201 S.E.2d 897 (1974); Ridge v. Grimes, 53 N.C. App. 619, 281 S.E.2d 448 (1981).

Applying these principles to the evidence here, we find the following:

A structural engineer who examined the fireplace and chimney testified that the interior fireplace bricks did not constitute

"solid masonry construction" due to numerous gaps in the mortar, and that in his opinion the construction thus violated the North Carolina Residential Building Code which "specifies that a fireplace shall be constructed of solid masonry construction." See North Carolina Uniform Residential Building Code § 16(5); North Carolina State Building Code § 2716. The North Carolina State Building Code, which was in effect when plaintiff's house was constructed, was adopted pursuant to authorization by G.S. 143-138. It thus had the force and effect of a statute, and violation of its provisions constituted negligence per se. Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560 (1960). See also Jenkins v. Electric Co., 254 N.C. 553, 119 S.E.2d 767 (1961); Lindstrom v. Chesnutt, 15 N.C. App. 15, 189 S.E.2d 749, cert. denied, 281 N.C. 757, 191 S.E.2d 361 (1972). The engineer's testimony thus permitted a finding of negligence in construction of the fireplace.

Further evidence permitted both that finding and a finding that the negligent construction proximately caused the fire and resultant damage. A fire department official who inspected the premises after the fire testified that "there were gaps in some of the bricks, small areas that did not have mortar in them"; that there "were actually holes going back into the chimney area . . . or the interior of the fireplace"; and that "[t]here were gaps . . . through the layers of brick exceeding twenty-eight inches." He further testified that in his opinion "some spark . . . traveled through these crevices or openings in the bricks and came to rest on [the] wood . . . causing the fire," and that "an escaping spark or ash from the fireplace flowing upward from any point that it may have e[s]caped the fireplace . . . came in contact with the wooden plate that . . . appeared to have been the longest burning area . . ., igniting the wood or dust or whatever items were there . . . ."

The foregoing evidence, in the light most favorable to plaintiffs, permitted a finding that the masonry subcontractor, defendant Hooker, negligently constructed the fireplace, and that this negligent construction proximately caused the fire. The case could go to the jury against the general contractor, defendant Smith, however, only if the evidence permitted a finding that he too violated some duty. "It is sufficient if by the exercise of reasonable care the defendant might have foreseen that some injury would result from his act o[r] omission or that consequences

of a generally injurious nature might have been expected." McIntyre v. Elevator Co., 230 N.C. 539, 544, 54 S.E.2d 45, 48 (1949).

When ruling on defendant Smith's motion for directed verdict, the court stated that it would allow the case to go to the jury on the principle enunciated in Lindstrom v. Chesnutt, supra, "as to whether [defendant Smith] exercised the degree of supervision that a reasonably careful and prudent person would have under the same or similar ...


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