Cox v. Ray M. Lee Co.

• Decision Date: 14 September 1959
• Docket Number: No. 37760,No. 1,37760,1
• Citation: 100 Ga.App. 333,111 S.E.2d 246
• Parties: Alma D. COX v. RYA M. LEE COMPANY, Inc., et al
• Court: Georgia Court of Appeals

Page 246

111 S.E.2d 246

100 Ga.App. 333

Alma D. COX v. RYA M. LEE COMPANY, Inc., et al.

No. 37760.

Court of Appeals of Georgia, Division No. 1.

Sept. 14, 1959.

Rehearing Denied Oct. 7, 1959.

Syllabus by the Court.

The plaintiff's petition set forth a cause of action and the judgment sustaining the general demurrers must be reversed.

Mrs. Alma Dudley Cox sued Ray M. Lee Company, Inc., a contractor, and James E. Barker and Charles W. Cunningham, individually and as partners doing business as Barker & Cunningham, a firm of architects, to recover for injuries sustained when she slipped on the concrete landing and steps of the educational building of the Inman Park Methodist Church in Atlanta, Georgia. Such landing steps were located on the outside of the building and were built by the defendant contractor under a contract with the church and were designed by the defendant architects for the church. It was alleged that the landing and steps were constructed of concrete and were so excessively troweled with a steel trowel, rather than a wood float trowel or being sprinkled with a steel abrasive hardener as ordinary care required, that when they became wet or damp with rainwater they became too slippery for persons to walk on them without slipping, a condition inherently and intrinsically and imminently dangerous to all third persons walking thereon when rain water was thereon who did not know of said slippery surface. It was also alleged that such condition was a nuisance. The petition showed that when the plaintiff entered such building the steps were dry, that while she was inside the building, as an invitee, it rained so that the landing and steps were wet as she attempted to leave the building, when she fell and was injured. The defendants each filed general and special demurrers to the petition. The court sustained the general demurrers without ruling on the special demurrers, and dismissed the petition, and it is to this judgment that the plaintiff now excepts.

Houston White, Atlanta, for plaintiff in error.

Moise, Post & Gardner, Albert G. Norman, Jr., Robert Cagle, Atlanta, for defendants in error.

NICHOLS, Judge.

1. 'While, as a general rule, an independent contractor is liable for injuries caused by his own negligence or that of his servants in the course of his performance of the work or in failing to leave the premises in as safe a condition as they were found, 65 C.J.S. Negligence § 95, p. 611, it is a well established general rule that, where the work of an independent contractor [or an architect] is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection. 65 C.J.S. Negligence § 95, p. 613; Young v. Smith & Kelly Co., 124 Ga. 475, 52 S.E. 765 [110 Am.St.Rep. 186, 4 Ann.Cas. 226], and citations. There are, of course, well recognized exceptions to this general rule. One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. Another is that the contractor is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons. 65 C.J.S. Negligence § 95, p. 614; Higgins v. Otis Elevator Co., 69 Ga.App. 584, 26 S.E.2d 380. If the work performed by the contractor is not shown to come within one of the exceptions to the general rule, when the work is finished by him and accepted by his employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from the defective conditions of the work. 27 Am.Jur. p. 514, § 37.' Queen v. Craven, 95 Ga.App. 178, 183, 97 S.E.2d 523, 527.

Therefore, in the present case, where the building constructed by the contractor under the direction and supervision of the architects had been completed and accepted by the owner, in order for the plaintiff's petition to set forth a cause of action it must be shown that the work comes within one of the exceptions shown above.

2. The plaintiff's petition charges that such landing and steps were a nuisance for which she could recover. As to such allegations this court is bound by the decision in the case of Stanley v. City of Macon, 95 Ga.App. 108, 112, 97 S.E.2d 330, 333, and the cases there cited which hold as to private nuisances: 'This court adheres to the often repeated designation of an actionable private nuisance as one which is 'specially injurious to an individual by reason of its proximity to his home.' Lewis v. City of Moultrie, 27 Ga.App. 757, 110 S.E. 625; Stubbs v. City of Macon, 78 Ga.App. 237(1), 50 S.E.2d 866; Kea v. City of Dublin, 145 Ga. 511, 89 S.E. 484; City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S.E. 345; Ingram v. City of Acworth, 90 Ga.App. 719, 84 S.E.2d 99; Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R. 1352. The origin of this limitation on the nuisance doctrine dates back to the common law, which construed nuisance as an infringement on a man's freehold. Garrett, Nuisances, 3rd. ed., p. 2. It was observed in State ex rel. Boykin v. Ball Investment Co., 191 Ga. 382, 389, 12 S.E.2d 574, 578, that our statutory definition of nuisance, which corresponds with that found in Blackstone, 'was not intended to change the common-law definition of a nuisance.' While it is no longer required that the plaintiff in a nuisance case show, as he had to do at common law, a freehold interest in the property affected by the nuisance, and while be no longer need show damage to the realty itself, he must still show that the condition is injurious by reason of its relationship to his home or property in the neighborhood where it is located * * *.' Accordingly, where as here the alleged nuisance was not located in or even near the plaintiff's home, no cause of action on the theory of nuisance is set forth. The case of Davey v. Turner, 55 Ga.App. 786, 191 S.E. 382, does not authorize or require a different ruling. There the deceased was a domestic servant employed in the tenant's home and was not necessarily not a resident of such premises. Accordingly, no cause of action is set forth by the allegations of the petition which charge that the landing and steps were a nuisance. This of course is not a holding that a city, under its authority, could not abate conditions in buildings other than homes, which are in fact nuisances.

3. The defendants rely on such cases as Queen v. Craven, supra, which held that the plaintiff's petition was subject to general demurrer where negligence was charged to a contractor who had removed a porch from a dwelling house so that a drop of seven feet from a doorway to the ground was created. That case did not hold that such situation could not be inherently or intrinsically dangerous or imminently dangerous to third persons, but only held that the plaintiff's petition did not allege such facts and that the contractor was not liable in the absence of such allegations after completing his contract and...