An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-464

NORTH CAROLINA COURT OF APPEALS

Filed: 3 May 2005

STEPHANIE GIBBS,
        Plaintiff,

v .                         Wake County
                            No. 02 CVS 11389
WILLARD BRITTON COBB, JR.,
and ANN GILLEN COBB,
        Defendants.

    Appeal by plaintiff from judgment entered 31 December 2003 by Judge Evelyn W. Hill in Wake County Superior Court. Heard in the Court of Appeals 31 January 2005.

    Everett, Gaskins, Hancock & Stevens, LLP by K. Matthew Vaughn, for plaintiff-appellant.

    Larcade & Heiskell, PLLC, by Christopher N. Heiskell, for defendant-appellees.

    JACKSON, Judge.

    In June 1994, Willard Britton Cobb, Jr. and Ann Gillen Cobb (“defendants”) purchased a fifty-year-old duplex. In both sides of the duplex, electrical baseboard heaters were attached to the walls with separate thermostats for each room. The apartments contained no sprinklers.
    Prior to purchasing the duplex, defendants hired a home inspector who found that the interior wiring was in marginal condition and that certain burn marks were an area of concern. The record shows that defendants wrote “no big deal” on the summarypage of the inspector's report. Defendants did not hire another inspector to follow up on the electrical and heating systems.
    Between 1 January 1994 and 23 December 2000, defendants leased these apartments to a series of seven different tenants. In March 1997, defendants leased to Stephanie Gibbs (“plaintiff”) one apartment within the duplex. In 1999, defendants leased the second apartment to Roger Vaquiz (“Vaquiz”). Defendants stated in their depositions that before leasing the apartments to new tenants, they would inspect each apartment thoroughly. In their lease with plaintiff, the only problem defendants identified with the apartment was scaling enamel in the bathtub. Defendants also stated in their depositions that the inspections did not reveal any issues with the apartment Vaquiz leased prior to his moving into the apartment.
    On 23 December 2000, a fire started in Vaquiz's living room while both Vaquiz and plaintiff were away on vacation. Plaintiff's apartment and its contents were destroyed in the fire and her pet cat also died as a result of the fire. In its investigation report, the Raleigh Fire Department (“RFD”) determined that a baseboard heater caused the fire. The RFD further found that the heater, the installation of which violated code standards, had been wired into an electrical box. In contrast, Steve Mangini (“Mangini”), an investigator for defendants' insurance company, inspected the apartments and determined the fire originated at the base of the wall in the living room. According to Mangini, a sofain Vaquiz's apartment was too close to the baseboard heater and the temperature control failed within the apartment.
    Based on Vaquiz's affidavit, the baseboard unit made sparking noises, and at other times threw off sparks, when the washing machine and clothes dryer or air conditioner were operated at the same time. Further, the washing machine, the clothes dryer, and the air conditioner located in the living room all ran on the same circuit. The circuit that supplied power to the apartment's living room baseboard heater and air conditioner ran through a fuse box in the apartment's kitchen. That circuit contained screw-in glass fuses. Vaquiz also stated that the sofa located in front of the baseboard heater in the living room stayed in the same position from the time he moved into the apartment until the fire occurred, and that defendants knew the sofa was located in front of the baseboard heater but had never warned Vaquiz about its hazardous condition.
    Doreen Bates (“Bates”), a previous tenant who lived in the apartment complex for several years, stated in an affidavit that she noticed popping and crackling noises but never reported this information to defendants. Both Bates and plaintiff further stated in their affidavits that defendants did not inquire about their experience with baseboard heaters nor did they give them instructions or warnings about how to use this type of heat.
    Todd Bidwell (“Bidwell”), another previous tenant, stated in his affidavit that during his tenancy, the apartment was in fit andhabitable condition, and he never observed any sparks or any other unusual condition regarding the heaters.
    Plaintiff filed suit against defendants on 26 August 2002 alleging defendants were liable under the North Carolina Residential Rental Agreements Act (the “Act”) and for common law negligence. On 19 September 2003, defendants made a motion for summary judgment as to plaintiff's claims for breach of implied warranty and negligence. Plaintiff also moved for partial summary judgment on the issue of liability on 29 September 2003. The trial court granted defendants' motion for summary judgment as to plaintiff's claims for breach of implied warranty and negligence. The trial court denied plaintiff's motion for partial summary judgment on the issue of liability. Plaintiff now appeals: (1) the trial court's order granting summary judgment to defendants, and (2) the trial court's order denying plaintiff's motion for summary judgment on the issue of liability.
    Plaintiff asserts: (1) the trial court erred when it entered summary judgment in favor of defendants as to plaintiff's implied warranty of habitability claim under the Act; (2) the trial court erred when it entered summary judgment in favor of defendants as to plaintiff's negligence claim; and (3) the trial court erred when it denied plaintiff's motion for partial summary judgment as to liability on the implied warranty of habitability claim. We address her contentions below.
    When the trial court grants a motion for summary judgment, the proper standard of review is whether: (1) “'based on all thepleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, . . . there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.'” Moody v. Able Outdoor, Inc., ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (2005)(quoting Stephenson v. Warren, 136 N.C. App. 768, 771-72, 525 S.E.2d 809, 811 (2000), disc. rev. denied, 351 N.C. 646, 543 S.E.2d 883 (2000)); see also N.C. Gen. Stat. § 1A-1, Rule 56(c)(2003). When the moving party shows there is no genuine issue of material fact and is therefore entitled to judgment as a matter of law, the non-moving party then has the burden of forecasting evidence that shows specific facts to establish a prima facie case. Moody, ___ N.C. App. at ___, ___ S.E.2d at ___. Summary judgment is proper for the non-moving party when “'(1) an essential element of the other party's claim or defense is non-existent; (2) the other party cannot produce evidence to support an essential element of its claim or defense; or (3) the other party cannot overcome an affirmative defense which would bar the claim.'” Moody, ___ N.C. App. at ___, ___ S.E.2d at ___ (quoting Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998)(citing Gibson v. Mutual Life Ins. Co. of N.Y., 121 N.C. App. 284, 465 S.E.2d 56 (1996)). (Emphasis omitted).
    Plaintiff alleges that defendants are required to comply with building codes to ensure the apartment is safe, fit, and habitable. The specific purpose of Article Five of the Act is to determine “the rights, obligations, and remedies under a rental agreement fora dwelling unit. ” N.C. Gen. Stat. § 42-38 (2003). Based on this Act, the landlord must comply with all “applicable building and housing codes . . . , do whatever is necessary to put and keep the premises in a fit and habitable condition . . . , [and] maintain in good and safe working order and promptly repair all electrical, . . . heating, . . . [and] air conditioning . . . , provided that notification of needed repairs is made to by the landlord in writing by the tenant, except in emergency situations.” N.C. Gen. Stat. § 42-42 (1-4). “The landlord is not released of his obligations under any part of this section by the tenant's explicit or implicit acceptance of the landlord's failure to provide premises complying with this section, whether done before the lease was made, when it was made, or after it was made . . . .” N.C. Gen. Stat. § 42-42(b). According to N.C. Gen. Stat. § 42-44(a) of the Act, when the landlord or tenant fails to comply with this Act, “[a]ny right or obligation declared by this Chapter is enforceable by civil action, in addition to other remedies of law and in equity.”
    This Court previously has stated that when a landlord fails to comply with this Act, the tenant can bring an action against the landlord to recover rent abatement and any special and consequential damages caused by the landlord's breach of warranty. Cotton v. Stanley, 86 N.C. App. 534, 537, 358 S.E.2d 692, 694, disc. rev. denied, 321 N.C. 296, 362 S.E.2d 779 (1987); Miller v. C. W. Myers Trading Post, Inc., 85 N.C. App. 362, 371, 355 S.E.2d 189, 194 (1987).     Plaintiff presented evidence showing specific facts sufficient to establish a prima facie case. Based on all the pleadings, depositions, and affidavits submitted in this case, we find that there are genuine issues of material fact as to whether defendants violated the Act. The RFD's investigation report, contradictory to Mangini's report, stated that the electrical wiring violated building codes and that this faulty electrical wiring may have been the origin of the fire. Contrary to one tenant's affidavit, two previous tenants stated that the baseboard heaters made cracking and sparking noises. Moreover, defendants never hired an inspector to check the heating system after being notified by the original inspection that these heaters were an area of concern. In her affidavit, plaintiff presented evidence that this fire damaged her personal belongings, including her furniture, clothing, family heirlooms, photographs, artwork, and cat. Plaintiff further stated that the monthly rent was $550.00 and stated that this rent was slightly below the market rate for similar housing.
    Accordingly, we find that plaintiff has raised genuine issues of material fact sufficient to warrant a jury trial. The trial court's finding in favor of defendants as to plaintiff's implied warranty of habitability claim is overruled.
    Plaintiff next contends that the trial court erred when it granted defendants' motion for summary judgment on the issue of negligence. Plaintiff alleges defendants breached their duty of due care when they failed to repair, remove, or warn plaintiff ofthe malfunctioning electrical heater in Vaquiz's apartment. We believe that this question, too, properly is one for the jury.
    When there is a violation under N.C. Gen. Stat. § 42-42, this Court previously has stated that “common law principles of negligence [apply] to determine a landlord's liability.” Bradley v. Wachovia Bank & Trust Co., 90 N.C. App. 581, 584, 369 S.E.2d 86, 88 (1988); Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889 (1982); Lenz v. Ridgewood Assoc., 55 N.C. App. 115, 284 S.E.2d 702 (1981), disc. rev. denied, 305 N.C. 300, 290 S.E.2d 702 (1982). Therefore, to survive defendants' motion for summary judgment, plaintiff must show: “(1) defendant[s] failed to exercise proper care in the performance of a duty owed to plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff's injury; and (3) a person of ordinary prudence should have foreseen that plaintiff's injury was probable under the circumstances as they existed.” Finley Forest Condo. Ass'n, 163 N.C. App. 735, 739, 594 S.E.2d 227, 230 (2004)(citing Lavelle v. Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995), disc. rev. denied, 342 N.C. 656, 467 S.E.2d 715 (1996)).
    Based on “common law principles of negligence,” plaintiff sufficiently forecasted evidence for a jury reasonably to conclude defendants breached their duty of care by failing to exercise proper care in the performance of a duty owed to plaintiff. Bradley v. Wachovia Bank & Trust Co., 90 N.C. App. at 584, 369 S.E.2d at 88. Although the inspector's report from June 1994 identified areas of concern with the burn marks around the airconditioner's electrical outlet and recommended it be repaired as needed, defendants stated in their depositions that no inspections took place after the initial purchase of the duplex in June 1994. Defendants also stated in their depositions that they thoroughly inspected each unit before new tenants moved in, however, they did not inspect the heating and electrical systems within the six years prior to the fire. Further, defendants failed to question previous tenants about the heating systems and give adequate warnings about the baseboard heating system.
    Plaintiff additionally forecasted sufficient evidence whereby a jury reasonably could conclude that an ordinarily prudent person should have foreseen that plaintiff's injury was probable under the circumstances. Finley Forest Condo. Ass'n, 163 N.C. App. at 739, 594 S.E.2d at 230 (citing Lavelle, 120 N.C. App. at 859-60, 463 S.E.2d at 569, disc. rev. denied, 342 N.C. 656, 467 S.E.2d 715 (1996)). Defendants failed to: (1) discover faulty heating installation through reasonable inspection, and (2) hire an inspector subsequent to the original inspection in June of 1994 to investigate the “areas of concerns” listed on the original inspection form. Moreover, Mangini stated in his deposition that a qualified expert would have been aware of these problems. The RFD further stated in its investigation report that the heater installation was not to code standards.
    Plaintiff finally asserts the trial court erred when it denied her motion for partial summary judgment on the issue of liability. Having found, however, genuine issues of fact, summary judgment as to this assignment of error is not proper.
    After reviewing the record, briefs, depositions, and affidavits, we reverse the trial court's Order entering summary judgment in favor of defendants and remand this case for further proceedings consistent with this opinion. We affirm the trial court's Order denying plaintiff's motion for summary judgment on the issue of liability.
    Affirmed in part and reversed in part.
     Chief Judge MARTIN and Judge McCULLOUGH concur.
    Report per Rule 30(e).

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