Golf Club Co. v. Rothstein, 37021

• Decision Date: 23 January 1958
• Docket Number: No. 2,No. 37021,37021,2
• Citation: 97 Ga.App. 128,102 S.E.2d 654
• Parties: GOLF CLUB COMPANY v. H. I. ROTHSTEIN, by Next Friend
• Court: Georgia Court of Appeals

Page 654

102 S.E.2d 654

97 Ga.App. 128

GOLF CLUB COMPANY v. H. I. ROTHSTEIN, by Next Friend.

No. 37021.

Court of Appeals of Georgia, Division No. 2.

Jan. 23, 1958.

Rehearing Denied Feb. 5, 1958.

Syllabus by the Court.

A landlord is not liable for injuries to his tenant or to the members of the latter's family for injuries resulting from a patent defect existing at the time of the rental agreement as to which both the landlord and the tenant had equal knowledge.

Harry Rothstein, a minor child two years of age, by his father as next friend filed an action for damages in the Superior Court of DeKalb County alleging that be was injured on certain premises owned by the defendant, 5051 Woods Drive, on which was an apartment building divided in three sections, the middle section, apartment 8, having been rented from the defendant by the plaintiff's father as a tenant at will. Immediately behind the apartment building was a back yard 60 feet in width, which was grassed over and landscaped like a lawn, and immediately beyond that, with no fence or other barrier separating them, was a ravine about 75 feet in depth. The sides of the ravine extending from the edge of the grassed portion were rough, uneven, and in some places had gulleys and holes covered with underbrush. There was nothing to protect the plaintiff or other children from stepping or falling from the grassed portion of the back yard onto the steep side of the ravine and the gulleys, holes and uneven places therein. Both the grassed portion of the back yard and the side of the ravine slanted sharply toward the bottom of the ravine, and it is difficult for children playing in the back yard to stop at the edge of the grassed portion before getting on the sharp, rough and uneven portion of the ravine with its gulleys and holes. The plaintiff, while playing in the back yard, slipped and fell into one of the partially concealed gulleys in the ravine, which was also owned by the defendant, and sustained certain described injuries for which he sues. He alleges that children living in the apartments were accustomed to play in the yards of the adjoining buildings and were not restricted to the yard in the rear of the apartment in which they lived, and charges negligence in that the defendant (1) failed to maintain a fence or barrier between the grassed portion of the back yards and the steep side of the ravine adjoining to prevent children from falling, running or walking from the grassed portion of the yard onto the uneven and sharply slanted slope of the ravine; (2) failing to maintain a warning sign or signal to protect the plaintiff and other children; (3) in maintaining a trap or pitfall as described; (4) in not providing any person to watch over the children of the tenants at play in that area; and (5) in failing to keep the premises and approaches safe. The trial court overruled a general demurrer to the petition and the defendant excepts.

Greene & Neely, John D. Jones, James H. Moore, Atlanta, for plaintiff in error.

G. Seals Aiken, Charles W. Bergman, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. In Waddell v. Wofford Oil Co., 84 Ga.App. 617, 66 S.E.2d 806, 807, it is held as follows: "A landlord is not liable for injuries to his tenant arising from a patent defect in the premises, existing at the time of the lease, and of which the tenant knew, or had means of knowing equal to those of the landlord.' McGee v. Hardacre, 27 Ga.App. 106(1), 107 S.E. 563, 564; Godard v. Peavy, 32 Ga.App. 121(1), 122 S.E. 634, and 'In the absence of an express agreement to do so, a landlord is under no duty to repair a patent defect in the rented premises, where its existence was known to the tenant at the time the rent contract was entered into.' Mitchell v. Clark, 39 Ga.App. 714(1), 148 S.E. 420. "Members of a tenant's family, his guests, servants, employees, or others present by his express or implied invitation, stand in his shoes, and are controlled by the rules governing the tenant as to the right of recovery for injuries arising from failure to keep the premises in repair." Chamberlain v. Nash, 54 Ga.App. 508(2), 188 S.E. 276, 277.'

The only defect alleged in the rented premises is one relating to the natural terrain of the land--that the grassy part of the back yard sloped toward a ravine, which had steep, pitted sides and went down to a depth of 75 feet. The only negligence alleged pertains not to a defect in construction or a failure to repair, but rather to a failure to construct, it being contended that the defendant should have put a fence between the grassed area and the ravine, or else posted someone on duty to see that children did not run, slip, climb or fall from the grassed yard onto the sides of the ravine and the gullies along its sides. That there was no fence, that the yard was not level, and that the cut existed, are all facts so patent to the eye that no question of failure to observe them on the part of any one with eyesight and sufficient mentality to recognize physical objects can be raised. Granting that the two-year old plaintiff would not yet have sufficient mentality to appreciate the dangers attendant on steep slopes, the petition yet shows that he was accustomed to play in the area and was accordingly as familiar with it as he could be with any place. He is alleged to be keen intellectually and far more intelligent than the average boy his age, fond of playing ball and riding his tricycle. The reason why he slipped and...