Fincher v. Fox

Decision Date08 April 1963
Docket NumberNo. 39902,No. 1,39902,1
Citation107 Ga.App. 695,131 S.E.2d 651
PartiesM. D. FINCHER v. J. M. FOX
CourtGeorgia Court of Appeals

Syllabus by the Court

1. A landlord who retains a qualified possession of the premises and approaches for purposes of maintenance may be liable for failure to remove temporary accumulations of matter such as snow and ice resulting from natural causes, but his liability will be determined by applicable principles of negligence law as in other cases.

2. Where snow fell which was of itself insufficient to impede access to the apartment occupied by the plaintiff tenant, but did not ice over to the extent that it constituted a hazard until after sundown and the plaintiff was injured before midnight on the same night, and the petition, alleges neither actual notice of the condition on the part of the defendant nor facts from which, in the exercise of ordinary care, he should have become apprised of the condition through lapse of time or otherwise, it not being caused by or contributed to by any act on his part, the facts stated fail to raise any duty on the part of the defendant to remove the ice prior to the time plaintiff received his injuries. It was not error to grant the defendant's motion for summary judgment.

Melvyn Fincher as tenant filed an action for damages in the Superior Court of DeKalb County against Joe Fox as landlord alleging in substance that plaintiff occupied an apartment in a multi-unit apartment building owned by the defendant, the sole access to which was by means of a paved driveway leading from the building to the street and maintenance of which was reserved exclusively in the landlord; that on the night of January 9 this driveway was covered by a heavy snowfall and during the day of January 10 it became coated with hard snow and ice making it extremely dangerous to walk upon, which in the exercise of ordinary care should have been known to the defendant; that about midnight of January 10 plaintiff was walking on the driveway in order to enter his apartment when he slipped on the ice and fell, sustaining described injuries, and that although he was in the exercise of due care he could not avoid the result of the defendant's negligence. The defendant filed an answer and motion for summary judgment supported by the deposition of the plaintiff taken on cross examination. It appears from the deposition that snow fell during the night of January 9 and was still falling when the plaintiff left for work the following morning; that he drove his automobile to his work at about 8 a. m.; that there was mostly snow on the ground and driveway at that time and until after dark on the night of January 10 when the major portion of the ice formed; that when the plaintiff returned at about 11:30 p. m. on the night of January 10 the driveway was a sheet of ice precluding his driving the automobile to the parking area, so he left it on the street. He then approached the building on foot across the lawn, but it was necessary for him to go around the corner of the building and to cross the inclined driveway and take two or three steps across the ice before reaching a parked automobile which would have given him support. While doing this he slipped on the ice, slid down the sloping ice-sheeted cement of the driveway, and sustained the injuries which form the basis of this action.

Upon these facts the trial court sustained the motion for summary judgment, and this ruling is assigned as error.

Levy & Stonecypher, Jean Wm. Levy, Atlanta, for plaintiff in error.

Hurt, Baird & Peek, Joe C. Freeman, Jr., Paul M. Hawkins, Atlanta, for defendant in error.

RUSSELL, Judge.

1. It is first argued that the formation of the ice on the driveway occurred without any negligence on the part of the defendant due to natural weather conditions and that the defendant cannot be held liable, even though as landlord he had a duty to keep the premises safe for tenants and their invitees (Code § 105-401) and to keep the premises and approaches in good repair. Code § 61-112; Smith v. Jewell Cotton Mill Co., 29 Ga.App. 461(2), 116 S.E. 17. The contention raises the question of whether or not there is a duty on a landlord implicit in his general duty to keep the premises in repair to remove temporary accumulations of nature such as rain water, ice and snow. In Netherland v. Pacific Employers Ins. Co., 101 Ga.App. 837, 841, 115 S.E.2d 122, this court begged the question, holding that there was involved not only ice which had recently formed but a slippery condition caused by soil erosion and accumulation of mud over a period of time. Likewise, in Wasserman v. Southland Investment Corp., 105 Ga.App. 420, 124 S.E.2d 674, there was involved not only natural ice, but ice due to the negligent manner in which the defendant landlord had attempted to clear the approaches to the apartment house. There is a divergence of opinion in other jurisdictions as to whether a duty rests upon the landlord under common-law principles to remove artificial and temporary accumulations of this nature which is the subject of an exhaustive discussion in 26 A.L.R.2d 610 et seq., and from which it appears that Indiana, Maine, Massachusetts, New York (on occasion) and Ohio have followed the rule that generally no such duty exists, whereas Connecticut, the District of...

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20 cases
  • Nesmith v. Starr, s. 42519
    • United States
    • Georgia Court of Appeals
    • March 8, 1967
    ...105 Ga.App. 207, 208(4a), 124 S.E.2d 441; 670 New Street, Inc. v. Smith, 107 Ga.App. 539, 542, 130 S.E.2d 773; Fincher v. Fox, 107 Ga.App. 695, 697(1), 131 S.E.2d 651. This same duty extended to the minor plaintiff, as the son of the plaintiff tenant. Crossgrove v. Atlantic Coast Line R. Co......
  • Telligman v. Monumental Properties, Inc., 62649
    • United States
    • Georgia Court of Appeals
    • January 21, 1982
    ...v. Padgett, 122 Ga.App. 79, 176 S.E.2d 193 (1970); Holtzclaw v. Lindsay, 122 Ga.App. 703, 178 S.E.2d 561 (1970); Fincher v. Fox, 107 Ga.App. 695, 131 S.E.2d 651 (1963). Indeed, on appeal appellee is apparently willing to concede for the sake of argument that such a finding would be authoriz......
  • Sra Mgmt., LLC v. Prince
    • United States
    • Georgia Court of Appeals
    • February 14, 2022
    ...omitted.) Dumas v. Tripps of North Carolina , 229 Ga. App. 814, 816-817 (2), 495 S.E.2d 129 (1997), citing Fincher v. Fox , 107 Ga. App. 695, 698 (1), 131 S.E.2d 651 (1963) ; see also St. Joseph's Hosp. of Atlanta v. Hall , 344 Ga. App. 1, 6 (1) (b), 806 S.E.2d 669 (2017) ; Kauffman v. East......
  • Holtzclaw v. Lindsay
    • United States
    • Georgia Court of Appeals
    • October 28, 1970
    ...rain. The same principle should also apply to a continuing drizzle which is freezing because of the temperature. See Fincher v. Fox, 107 Ga.App. 695, 131 S.E.2d 651 and the recent case Auerbach v. Padgett, 122 Ga.App. 79, 179 S.E.2d 193. The plaintiff's own testimony is that it was 'drizzli......
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