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Nedrow v. Pruitt9/13/1999
Appeal From Greenville County John W. Kittredge, Circuit Court Judge
Heard June 8, 1999
REVERSED AND REMANDED
Sabrina Nedrow sued David Pruitt, d/b/a Bruns Real Estate Company (Pruitt), and Piedmont Natural Gas Company, Inc. (Piedmont) alleging negligence and failure to make certain repairs as required by the Residential Landlord Tenant Act (RLTA) against Pruitt and breach of warranty and negligence against Piedmont. Only the claims of negligence were submitted to the jury, which found in favor of both defendants. Nedrow appeals, disputing the trial court's jury charges, the trial court's refusal to strike the defense of assumption of the risk, and the trial court's refusal to admit certain evidence. We reverse and remand.
FACTS
A one-year lease was executed on January 28, 1993, between Nedrow and Pruitt. The lease provided, in part:
During the period of his tenancy Resident agrees to maintain this property in as good state as he finds it, ordinary wear and tear excepted; and will have repaired at his expense, any damage done to the water and electrical fixtures, replace broken glass, keep sinks, lavatories, commodes, and sewer lines open, repair any plumbing or heating equipment that may be damaged by his negligence. Resident will pay the first Sixty Dollars ($60.00) of any repairs.
Nedrow moved into the apartment in February, 1993. The apartment had a gas heater and a gas stove. She called Piedmont and requested the gas be turned on. One of the Piedmont employees that came to the apartment noticed one of two pieces of glass was missing from the front of the heater. The employee explained to Nedrow he had to turn off the gas because the heater was dangerous when missing the glass. Later that same day, Piedmont replaced the glass on the heater and indicated the heater was working properly.
About two weeks later, Nedrow discovered that one of the heater's elements was leaning on the glass and that the glass was cracked. Nedrow explained: "I cut the heater off immediately because I thought with the element leaning on the glass and the glass being cracked as hot as the elements got that it could fall through and catch the hardwood floors on fire." Nedrow's father later removed the glass and the element.
When Nedrow called Pruitt to tell him the glass was broken again, he agreed to pay for the cost of the glass but not for labor. She testified he told her to go to Piedmont to get the glass and install it herself. Pruitt testified they agreed Piedmont would replace the glass on the heater. Pruitt stated Nedrow would pay for the repair and he would pay for the glass. He testified Nedrow never indicated she was going to repair the heater herself.
Nedrow then visited Piedmont and gave an employee the serial number from her heater. An employee, Nelson Skelton, showed her two sizes of glass. Nedrow chose the larger piece.
Nedrow installed the elements and glass herself. The glass, however, was too small to cover the entire opening, leaving about a one and a half inch gap.
After many tries inserting [the glass] thinking I had inserted it improperly I chose to leave it that way because there was no flame on that corner of the left side. There was no flame if (sic) front of that gap there. . . When I put that glass on and I put the other two elements in, I intentionally pushed all four elements more to the right side because where the gap was there was no flame coming up.
She explained her reason for not exchanging the glass for a different size: " t wasn't my responsibility. I thought if [Pruitt] didn't come and take care of it that it wasn't that
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