Country Club Apartments, Inc. v. Scott

• Decision Date: 01 October 1980
• Docket Number: No. 36346,36346
• Citation: Country Club Apartments, Inc. v. Scott, 246 Ga. 443, 271 S.E.2d 841 (Ga. 1980)
• Parties: COUNTRY CLUB APARTMENTS, INC. v. SCOTT.
• Court: Georgia Supreme Court

Page 841

271 S.E.2d 841

246 Ga. 443

COUNTRY CLUB APARTMENTS, INC. v. SCOTT.

No. 36346.

Supreme Court of Georgia.

Argued July 9, 1980.

Decided Oct. 1, 1980.

Ronald W. Self, Columbus, for appellant.

Harry Dicus, Columbus, for appellee.

MARSHALL, Justice.

In Country Club Apts. v. Scott, 154 Ga.App. 217, 267 S.E.2d 811 (1980), the Court of Appeals held that the landlord's implied warranty, that the rented premises were in good repair at the time they were rented, cannot be defeated by an exculpatory provision in the lease. The Court of Appeals' affirmance of the trial court's denial of the appellant's motion for judgment on the pleadings is a type of ruling on which certiorari is not normally granted under our Rule 29(2) (242 Ga. 1006). Because of the importance of the issue involved and the state of confusion of the law thereon, as illustrated by the split vote in the Court of Appeals, however, we granted certiorari.

Four judges in the "majority" opinion purportedly overruled the line of cases holding that a landlord can exculpate himself from damages occurring to the person or property of a tenant during the period of the lease as a result of ordinary negligence on the part of the landlord, i. e., Ragland v. Rooker, 124 Ga.App. 361, 183 S.E.2d 579 (1971); Camp v. Roswell Wieuca Court Apts., 127 Ga.App. 67, 192 S.E.2d 499 (1972); Akin v. Hardeman-Long Corp., 129 Ga.App. 303, 199 S.E.2d 621 (1973); Sport Shop, Inc. v. Churchwell, 131 Ga.App. 718, 206 S.E.2d 715 (1974); Smith v. General Apt. Co., 133 Ga.App. 927, 213 S.E.2d 74 (1975); Tek-Aid, Inc. v. Eisenberg, 137 Ga.App. 99, 223 S.E.2d 29 (1975). However, since the special concurrence (which completes the true majority vote) declined to overrule the above cases, the cases are not overruled in spite of the language of the four-judge opinion. The further fragmentation of that court on this issue is illustrated by the two separate dissenting opinions.

In our opinion, the present issue is one of public policy, on which the General Assembly is the proper spokesman and on which it has in fact spoken. In 1970, just prior to the onset of the spate of cases cited hereinabove, the General Assembly enacted Code Ann. § 20-504 (Ga.L.1970, p. 441), which provides in part: "A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building structure, appurtenances and appliances ... purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee, is against public policy and is void and unenforceable ..." That this statute was applicable to exculpatory clauses in lease contracts was specifically established by this court in Frazer v. City of Albany, 245 Ga. 399(2), 265 S.E.2d 581 (1980).

In spite of this 1970 legislative statement of policy, exculpatory clauses in lease contracts continued to be approved by the Court of Appeals, as in the cases cited hereinabove. Although it is true that the General Assembly can acquiesce in court interpretations of its enactments by failing or declining to amend them so as to clarify its true intention, such was not done in regard to the present issue. In 1976, after all of the above cases had been decided, the General Assembly substantially rewrote Code § 61-102, thereby reenforcing its earlier pronouncement in Code Ann. § 20-504, supra, and making it clear that it applied specifically...