Nesmith v. Starr, s. 42519

• Decision Date: 08 March 1967
• Docket Number: 42520,2,3,Nos. 42519,Nos. 1,s. 42519,s. 1
• Citation: 155 S.E.2d 24,115 Ga. App. 472
• Parties: Delbert E. NESMITH v. Michael STARR, by Next Friend. Delbert E. NESMITH v. T. E. STARR et al
• Court: Georgia Court of Appeals

Page 24

155 S.E.2d 24

115 Ga.App. 472

Delbert E. NESMITH v.Michael STARR, by Next Friend.

Delbert E. NESMITH v.T. E. STARR et al.

Nos. 42519, 42520.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 8, 1967.

Rehearings Denied March 28, 1967.

Certioraris Denied May 4, 1967.

Syllabus by the Court

In these actions by a tenant and his minor son to recover damages from their landlord and its agents arising out of personal injuries to the minor plaintiff caused by the alleged negligence of the defendants, who retained qualified possession and general supervision of portions of the leased premises of which common use was made by the tenants, in leaving unprotected a brick-cutting machine in an area known by them to be used by children playing, the petitions stated causes of action; therefore, the general demurrers thereto were properly overruled.

Terry E. Starr brought these actions, as next friend of his six-year-old son, Michael, and as his father, respectively, against Shallowford Apartments, Inc., Day Realty Associates, Inc., Day Realty Management, Inc. and Delbert E. Nesmith for damages for injuries to the minor caused by the defendants' alleged negligence.

The petitions allege substantially as follows: The plaintiffs were tenants in an apartment complex owned by defendantShallowford Apartments, Inc., whose agents for the maintenance, operation and management of the apartments were the other two corporate defendants.The defendant owner reserved a qualified right of possession of the areas of common use of the apartment complex, such as children's play areas, which were not leased to individual tenants.On August 26, 1964, defendant Nesmith, as agent and employee of the corporate defendants, was engaged in the construction of brick enclosures around open and exposed electrical utility meters in an area, known to Nesmith, his employees, and the corporate defendants, wherein children were playing.In said construction Nesmith used a manually operated brick-cutting machine with a heavy steel blade, used for separating bricks.The machine, not being a common object around the home or play area, was attractive to and did attract the minor plaintiff and other children.At about 8 p.m., the minor plaintiff lost about half of his right index finger when the blade of the machine fell on it.The alleged particulars of negligence are as follows: that each of the corporate defendants was negligent in allowing the machine to be left in an open and unprotected position with knowledge through their agent, Nesmith, of the minor plaintiff and other children playing in that area, not providing a safe place for such children to play, and in failing to exercise ordinary care in keeping the premises safe for the minor plaintiff; that all of the defendants were negligent in failing to maintain in a safe condition those places where they knew that children were playing, to remove the machine from such area, to take proper precautions to protect the children from the machine and to warn the children of the danger of the machine.

Defendant Nesmith filed a general demurrer to the petition in each action, from the judgments overruling which he appeals.

Greene, Buckley, DeRieux, Moore & Jones, Harry L. Greene, James A. Eichelberger, Atlanta, for appellant.

Swift, Currie, McGhee & Hiers, Robert S. Harkey, Long, Weinberg & Ansley, Atlanta, for appellees.

FELTON, Chief Judge.

A landlord, such as an apartmenthouse owner, who retains qualified possession and general supervision of portions of the demised premises of which common use is made by the tenants, is liable in damages to tenants and other invitees for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.Code§ 105-401;Rothberg v. Bradley, 85 Ga.App. 477(1), 69 S.E.2d 293;Maloof v. Blackmon, 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., 30 Ga.App. 462(2), 118 S.E. 694;Golf Club Co. v. Rothstein, 97 Ga.App. 128, 130, 102 S.E.2d 654.The questions of whether the landlord exercised ordinary care in keeping the premises safe, the proximate cause of the injury and contributory negligence are for the determination of the jury unless the allegations of negligence in the petition are negatived by other allegations.Goldsmith v. Hazelwood, 93 Ga.App. 466, 468, 92 S.E.2d 48, and cit.;Shannon v. Bigelow-Sanford &c. Co., Inc., 96 Ga.App. 458, 460, 100 S.E.2d 478, and cit.

In determining the defendants' liability, if any, the jury can consider the fact that a greater duty was owed to the minor plaintiff because of his tender years than to older persons.Etheredge v. Central of Ga. Ry. Co., 122 Ga. 853, 50 S.E. 1003;Augusta Amusements, Inc. v. Powell, 93 Ga.App. 752, 754, 92 S.E.2d 720.Cases denying liability where the injury is caused by a statical condition or instrumentality, not inherently dangerous (see, e.g., Brown v. Bone, 85 Ga.App. 22, 68 S.E.2d 190;Southern Bell Tel. & Tel. Co. v. Brackin, 215 Ga. 225, 228(3), 109 S.E.2d 782, and cit.) are distinguishable in that their pleadings or evidence, or both, as interpreted by the appellate courts, have shown the injured parties to be trespassers, to whom the owner does not owe the higher standard of care owed to licensees and invitees, such as is here involved in the landlord-tenant relationship.In the Brackincase, supra, the petition alleged that the plaintiff found the instrumentality of his injury on his own yard, which would have made him an invitee.This court stated that '(t)he petition sought recovery of damages on the theory that the wire left on the premises was an attractive nuisance'(emphasis supplied), that, since the original demurrers to the petition were not renewed following its material amendmentthe plaintiff was entitled to a verdict as against a motion for a directed verdict if the evidence would authorize the jury to find that the case was proved as laid, which this court found was the case.Southern Bell Tel. & Tel. Co. v. Brackin, 99 Ga.App. 77, 107 S.E.2d 864.In reversing, the Supreme Court stated that '(w)e think that the Court of Appeals properly construed the plaintiff's petition as being based upon the 'attractive nuisance doctrine,' * * *.' perhaps basing this assumption upon this court's statement, above quoted, to the effect that the theory was that the wire was an 'attractive nuisance.'This court did not mention the attractive nuisance doctrine in its opinion and, as the author of the opinion, I can state that it was not considered applicable in that case.The Supreme Court, however, cited evidence which it construed as showing that the plaintiff found the wire elsewhere than his yard, making him a trespasser under its construction of the evidence.

In Starland Dairies, Inc. v. Evans, 105 Ga.App. 813, 125 S.E.2d 682, this court upheld the finding that an action was not based upon the attractive nuisance doctrine, one stated reason for which being the absence of any allegation that the plaintiff was a trespasser and the fact that the petition showed her to be a licensee.In discussing this doctrine, the court said, on pp. 814 and 815, 125 S.E.2d p. 683, in part as follows: 'The function of the so-called turntable doctrine is to remove an infant trespasser from the law applicable to trespassers generally, which is that the owner of land has no duty to keep his premises safe as to them, by indulging in the legal fiction that the attractiveness of the instrumentality to the child constitutes an implied invitation to him to come on the premises and thereby raises the owner's duty to the exercise of ordinary care to avoid injuring him.(cit.) * * *.In the taxonomy of negligence law, the attractive nuisance doctrine is but another way of saying that under given circumstances the defendant is liable for the consequences of his negligence where he should in the exercise of ordinary care have foreseen that harm would result to an infant trespasser whose presence he should have anticipated.The same result may be arrived at without invoking the doctrine where the infant is not a trespasser and the duty to exercise due care under the circumstances has not been met.'(Emphasis supplied.)

In our opinion this court would be doing a dangerous and unfounded thing in giving the impression, in cases not involving an implied invitation, that courts restrict the definition of ordinary care in ruling that the attractive nuisance doctrine will not be extended.In the latter ruling the motive and purpose of the courts is to refuse to extend the attractive nuisance doctrine for the sole purpose of limiting the fiction of implied invitation to children, not to change the rule as to ordinary care.In cases where no implied invitation is involved, the question of the attractiveness to children of an object is relevant, not on the question of the relationship of the parties but simply whether under the facts alleged and proved the defendants should have anticipated that harm would come to children because of the knowledge on the part of defendants of the character of the object involved and the fact of the knowledge of the likelihood of the presence of children.The question in this case is simply whether the defendants were negligent.It is not whether the attractive nuisance doctrine should be extended.If these two things are confused we could come up with a ruling against extending the application of the attractive nuisance doctrine which would preclude a finding of negligence against a defendant when if the question of extending the said doctrine had been properly left out of the case a finding of negligence against a defendant should have been approved.The terms 'attractive nuisance' and ...