Spillman v. American Homes of Mocksville, Inc.

*65 HEDRICK, Chief Judge. Defendant assigns as error the trial court’s denial of its motion for a directed verdict. Defendant argues that plaintiff failed to produce evidence sufficient to submit either the issue of breach of contract or negligent performance of the contract to the jury. As the jury found in defendant’s favor on the issue of breach of contract, the submission of that issue resulted in no prejudice to defendant and we do not therefore address that portion of defendant’s argument. Plaintiffs’ claim of negligence is premised upon the allegation that defendant’s failure to properly perform the terms of the contract between the parties resulted in damage to the mobile home which is the subject matter of the contract. Such a premise is clearly insufficient. Absent the existence of a public policy exception, as in the case of contracts involving a common carrier, innkeeper or other bailee, see Ports Authority v. Roofing Co., 294 N.C. 73, 82, 240 S.E.2d 345, 350-51 (1978), a tort action does not lie against a party to a contract who simply fails to properly perform the terms of the contract, even if that failure to properly perform was due to the negligent or intentional conduct of that party, when the injury resulting from the breach is damage to the subject matter of the contract. Id. at 83, 240 S.E.2d at 351; Warfield v. Hicks, 91 N.C. App. 1, 9-10, 370 S.E.2d 689, 694, disc. review denied, 323 N.C. 629, 374 S.E.2d 602 (1988); Sims v. Mobile Homes, 27 N.C. App. 25, 28, 217 S.E.2d 737, 739-40, cert. denied, 288 N.C. 511, 219 S.E.2d 347 (1975). It is the law of contract and not the law of negligence whieh defines the obligations and remedies of the parties in such a situation. As the evidence presented by plaintiffs does not support a claim of negligence, the trial court’s denial of defendant’s motion for a directed verdict as to that issue was error. The judgment entered by the District Court in response to the jury’s answers to issues three and four is reversed. Reversed. Judge Lewis concurs. Judge WYNN concurs in the result only.