MacKenna v. Jordan, 45807
| Decision Date | 07 May 1971 |
| Docket Number | No. 45807,No. 1,45807,1 |
| Citation | 123 Ga.App. 801,182 S.E.2d 550 |
| Parties | W. J. MacKENNA v. J. D. JORDAN et al |
| Court | Georgia Court of Appeals |
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Malcolm H. Ringel, Williston C. White, Atlanta, for appellant.
Weston D. Baxter, Jr., Smyrna, for appellees.
Syllabus Opinion by the Court
The defendant's motion for summary judgment was denied and then certified for direct appeal. It is undisputed that Daniel Fuchs contracted to purchase a new home from the defendant, the owner and builder. Fuchs and his family moved into the house on March 1, 1969 prior to the final closing of the sale. The home at the time was practically completed. A concrete floor had not been poured in the front porch 'stoop.'
On March 11, 1969, defendant had two of his employees present on these premises landscaping the yard and they were instructed by defendant to emplace 'some stuff on the steps' in order to block entry to the steps which led up to the still unfinished porch. As it existed at the time, this front entry to the house included 12 steps with an iron hand-railing which led upward to the unfinished porch adjacent to the front door. The porch area was then nothing more than a hole at the top of the steps approximately 12 feet deep. The plaintiff husband, a community minister, was advised of the recent occupancy of this home by the Fuchs. In making a pastoral visit the minister entered the premises for the purpose of welcoming the Fuchs to the community and to extend to them an invitation to visit his church. The time of this visit was about 7:00 p.m., March 11, 1969. The front area of the house was in total darkness but a light was on in the interior. Plaintiff noticed at the bottom of the steps a bag of fertilizer which had been laid lengthwise on the first step but which did not block the way. He climbed the steps and fell into the hole at the top injuring himself. On March 21, 1969, the sales transaction was consummated by defendant's delivery of a deed to Fuchs. Held:
1. It is clear that defendant was the lawful owner of the property at the time of plaintiff's injuries. Defendant admits that he was obligated by the terms of his contract with Fuchs to complete the house which included the pouring of the concrete floor. As between the defendant and Fuchs the relationship of landlord and tenant did not exist. The defendant put Fuchs into possession of the premises under the contract of sale not as a tenant, but as a purchaser. Where a party enters upon land under a contract of purchase, landlord and tenant relationship does not come into existence. Brown v. Persons, 48 Ga. 60, 62; Griffith v. Collins, 116 Ga. 420, 42 S.E. 743; Griffeth v. Wilmore, 46 Ga.App. 96, 166 S.E. 673. Absent this relationship the provisions of Code § 61-112 concerning the liability of a landlord to third persons cannot apply. The fact of occupation by the purchaser prior to the final closing cannot change the fact that the defendant was the legal owner of the property.
2. Here the plaintiff was not an invitee. See Hall v. Capps, 52 Ga.App. 150, 182 S.E. 625 and Crossgrove v. Atlantic Coast Line R. Co., 30 Ga.App. 462, 118 S.E. 694. Under the most favorable inferences to be drawn from the evidence, plainti...
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...v. Winborn, 135 Ga.App. 753, 218 S.E.2d 917 (1975) (granting summary judgment for defendant landowners). But see MacKenna v. Jordon, 123 Ga.App. 801, 182 S.E.2d 550 (1971); Bohn v. Beasley, 51 Ga.App. 341, 180 S.E. 656 Under Georgia law, the standard of care encompassed in the duty of an ow......
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