Johnston v. Ross, A03A1130.

• Decision Date: 21 November 2003
• Docket Number: No. A03A1130.,A03A1130.
• Citation: 590 S.E.2d 386,264 Ga. App. 252
• Parties: JOHNSTON v. ROSS.
• Court: Georgia Court of Appeals

590 S.E.2d 386

264 Ga. App. 252

JOHNSTON v. ROSS.

No. A03A1130.

Court of Appeals of Georgia.

November 21, 2003.

Certiorari Denied March 8, 2004.

Kardos, Warnes & McElwee, John E. Kardos, Athens, for appellant.

Blasingame, Burch, Garrard, Bryant & Ashley, Andrew J. Hill III, Josh B. Wages, Athens, for appellee.

RUFFIN, Presiding Judge.

Luanne Johnston sued her landlord, Michael Ross, for injuries she allegedly sustained when she fell down a set of steps at the house she rented as her residence.¹ Johnston appeals from the trial court's order granting Ross summary judgment. For reasons that follow, we reverse.

Summary judgment is appropriate when the evidence, construed favorably to the nonmovant, demonstrates that no genuine issues of material fact remain and that the movant is entitled to judgment as a matter of law.² So viewed, the record shows that Johnston fell when she lost her footing at the top of five steps leading down from the front porch of the house. Although she cannot identify why she initially lost her footing, Johnston asserts that she fell because the steps lacked handrails that she could have used to steady herself.³ According to Johnston, once she slipped, her "normal instinct was to grab for a handrail, which was not there, so [she] fell over into the right-hand side of the yard." She alleges that the absence of handrails created a dangerous condition on the steps.

Johnston's landlord, Ross, built the house and constructed the steps without handrails. Johnston presented evidence that the lack of handrails was a violation of the applicable building code. The evidence further shows that the absence of handrails was obvious, that Johnston knew the steps had no handrails when she rented the house, and that she did not discuss this condition with Ross before her fall. Johnston had lived in the house for almost three months prior to her fall and had negotiated the steps five or six times without any difficulty. Ordinarily, however, she accessed the house by another set of steps with a handrail that led up to the side door.

Ross moved for summary judgment, arguing that Johnston's claim was barred because she knew before her fall that the front steps lacked handrails. The trial court granted the motion. Citing Johnston's "equal knowledge" of the alleged defect, Ross argues on appeal that the trial court properly granted summary judgment. We disagree.

Generally, "a landowner is not liable for injuries to an invitee arising from a patent defect on the premises preexisting the arrival of the invitee and of which the invitee knew or had the means of knowing equal to the landowner."⁴ As we have noted, however, a landlord "may not hide behind this general principle" to avoid duties imposed by statutes or housing codes.⁵ In Bastien v. Metro. Park Lake Assoc.,⁶ we addressed a factual situation similar to this case. The plaintiff in Bastien sued her landlord for injuries allegedly sustained when she fell on the steps to her apartment. The steps lacked a handrail, which constituted a building code violation. The trial court found that the plaintiff's knowledge of the defect demanded summary judgment for the landlord. We reversed, holding that "although the defect was obvious when [the plaintiff] took possession of the apartment, that is not necessarily a bar to recovery when the defect is in violation of a duty created by applicable statute or administrative regulation."⁷ We followed this ruling in Watts v. Jaffs,⁸ again noting that a residential landlord may be liable for a patent defect when the defective condition contravenes a statute or regulation.

The dissent argues that Bastien and Watts improperly rely on the plurality opinion in Thompson v. Crownover.⁹ In Thompson, three of our Supreme Court justices recognized the "important public policy in favor of preventing unsafe residential housing."¹⁰ To further that policy, these justices determined that a landlord may be liable in tort "for a violation of the duties created by the housing codes and other legislation."¹¹ Their conclusion parallels the Restatement (Second) of Property, cited by Thompson and this Court with approval,¹² which subjects a landlord to liability for injury arising from failure to repair a dangerous condition existing in violation of "a duty created by statute or administrative regulation."¹³ Explaining the rationale behind this provision, the Restatement drafters noted that

the rule of this section is based on the assumption that the statute or regulation represents a legislative determination of the standard of conduct required of the landlord, so that the violation constitutes negligence per se.... The tort liability of the landlord in this situation tends to increase the likelihood that the will of the legislature as expressed in the statute or regulation will be effectuated. ¹⁴

The dissent dismisses the Thompson policy discussion as unbinding language from a plurality opinion. But we cannot—and will not—ignore such an obvious and necessary public policy. Moreover, we agree with the Restatement drafters that "[t]he fact that the tenant ... is aware of the dangerous condition [created by the residential building code violation] does not in and of itself mean that [this rule of liability is] inapplicable."¹⁵

Undoubtedly, a landlord's liability is not absolute. Landlords enjoy the usual defenses available in a negligence action, including those based on contributory negligence and assumption of the risk.¹⁶ But such defenses present questions for a jury except in extraordinary cases, where the facts are plain and indisputable.¹⁷ And, in cases involving housing code violations, the facts supporting these defenses will not be plain or indisputable. For example, a tenant who is aware of a condition that violates a housing code does not necessarily appreciate the danger presented—a danger that has been studied and regulated by a governing body.¹⁸ The dissent cites several decisions in which a claimant's equal knowledge of a dangerous condition barred recovery as a matter of law, despite a possible building code violation.¹⁹ Those cases, however, do not involve the relationship between a residential tenant and landlord.²⁰ Furthermore, given the important public policy at issue, we find that a jury should assess the reasonableness of the tenant's conduct and the extent to which the tenant appreciates the risk of that conduct. Such result does not impose absolute liability on a landlord. It simply allows a jury to decide questions regarding ordinary care and the assumption of any risk.

Our decisions in Bastien and Watts control this case. Although Johnston knew that the steps lacked handrails, she presented evidence that this condition violated an applicable building code. Under these circumstances, summary adjudication was not appropriate.²¹ Accordingly, the trial court erred in granting Ross' motion for summary judgment.

Judgment reversed.

SMITH, C.J., JOHNSON, P.J., ELDRIDGE, BARNES, MILLER, ELLINGTON, PHIPPS, MIKELL and ADAMS, JJ., concur.

ANDREWS, P.J., and BLACKBURN, P.J., dissent.

ANDREWS, Presiding Judge, dissenting.

Luanne Johnston claimed that the absence of a handrail caused her to fall down a set of steps at the house she rented as her residence. She sued Michael Ross, her landlord and the builder of the house, claiming Ross was liable for her injuries under OCGA § 51-3-1 for failing to keep the premises safe, under OCGA §§ 44-7-13 and 44-7-14 for failing to keep the premises in repair and defective construction, and under common law principles governing negligent construction.

As the majority concedes, it is undisputed that the landlord, Ross, built the house and constructed the steps at issue without a handrail; that the absence of a handrail was a violation of the applicable building code; that the absence of the handrail was obvious; that Johnston knew the steps lacked a handrail when she rented the house, and that Johnston had no discussion with Ross about the absence of a handrail prior to her fall. In fact, Johnston had lived in the house for about three months prior to her fall and had used the steps at issue five or six times without any problem prior to her fall. It is also undisputed that the steps at issue were not used as the primary entrance to the house, and that the primary entrance to the house was another set of steps constructed with a handrail which led up from a paved driveway and parking area adjacent to the house.

Thus, the facts are undisputed (1) that Johnston knew there was no handrail on the steps and (2) that, because the primary steps to the residence had a handrail, there was no necessity which forced Johnston to use the steps without a handrail for ingress and egress to her residence. On these facts, binding Supreme Court of Georgia authority—as set forth below—compels the conclusion that Ross was entitled to summary judgment.

As an initial matter, the record shows that at all relevant times Ross was an out-of-possession landlord, so the only basis for imposing tort liability on Ross was Johnston's claim brought pursuant to OCGA § 44-7-14. Martin v. Johnson-Lemon, 271 Ga. 120, 124, 516 S.E.2d 66 (1999); Colquitt v. Rowland, 265 Ga. 905, 906-907, 463 S.E.2d 491 (1995). Section 44-7-14, entitled "Tort liability of landlord," provides that:

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

Johnston's claim against Ross under this section is that the steps were defectively constructed without a handrail. Martin, 271 Ga. at 124, 516 S.E.2d 66; Flagler Co. v. Savage, 258 Ga. 335, 337, 368 S.E.2d 504 (1988). However, given that...