Phelps v. Consolidated Equities Corp.

• Decision Date: 04 October 1974
• Docket Number: No. 49500,No. 1,49500,1
• Citation: 210 S.E.2d 337,133 Ga.App. 189
• Parties: Sarah PHELPS v. CONSOLIDATED EQUITIES CORPORATION
• Court: Georgia Court of Appeals

Page 337

210 S.E.2d 337

133 Ga.App. 189

Sarah PHELPS v. CONSOLIDATED EQUITIES CORPORATION.

No. 49500.

Court of Appeals of Georgia, Division No. 1.

Oct. 4, 1974.

Rehearing Denied Oct. 31, 1974.

Webb, Parker, Young & Ferguson, Robert G. Young, Atlanta, for appellant.

Neely, Freeman & Hawkins, William Q. Bird, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is by a plaintiff tenant of an apartment complex from the grant of a summary judgment motion for defendant landlord. Plaintiff sued her landlord alleging defendant's negligence to have been the cause of her sustaining injuries when she fell in the parking area during the Atlanta glacial ice storm of January 1973. We must decide if, as plaintiff contends, the record presents questions of negligence for determination by a jury, or if, as defendant asserts, the trial court's ruling was correct because there was no negligence by defendant under the special circumstances existing here or plaintiff's conduct in venturing into the area barred any right of recovery. Our record consists of the pleadings and three depositions. These consisted of cross examinations of plaintiff and of defendant's resident manager and maintenance manager.

Plaintiff's testimony was that the ice began to accumulate on Saturday, January 6, 1973 (both the resident manager and maintenance manager deny this assertion, insisting that the ice began to amass twenty-four hours later); that she called the resident manager Monday morning to suggest that sand be spread upon the driveways and other slick places in the complex; that on Monday afternoon she attempted to move her automobile closer to the apartment's parking lot entrance so she would be more likely able to drive to work on Tuesday morning; that she was unable to accomplish this task because the parking lot was very slick; and that as she walked back towards her apartment on the lot (which was covered with ice) she slipped and fell. The resident manager acknowledged the plaintiff telephoned her Monday morning to suggest sand be used to combat the ice and that she attempted to secure sand from two companies which were located near the complex, but was unable to do so. The maintenance manager averred he sprinkled salt throughout a portion of the complex early Monday morning; but discontinued this undertaking because as a result of the low temperature, the melting ice would refreeze and create an even slicker surface; that therefore he did not salt the portion of the complex in which the plaintiff resided. He also testified he had sought to locate sand for the parking lot, but was unsuccessful. Held:

1. In Fincher v. Fox, 107 Ga.App. 695, 131 S.E.2d 651 our court made an examination of the extent of the landlord's duty to remove from common areas temporary accumulations of nature such as rain water, ice and snow. The late Judge Robert L. Russell, Jr. ¹ cited various Georgia cases on the subject and discussed rulings from other jurisdictions which were the subject of an exhaustive annotation in 26 A.L.R.2d 610. He pointed out there were two lines of decisions, one holding that no duty existed upon the landlord to remove temporary accumulations of this nature. This has since become known as the 'Massachusetts Rule.' The other follows what is known as the 'Connecticut Rule' which, Judge Russell explained at page 698, at page 654 of 131 S.E.2d, 'tend(s) to judge the duty under general applicable principles of negligence and to base the decision upon whether or not the landlord has used reasonable care to keep the approaches reasonably safe after notice of the condition and a reasonable opportunity to correct it.' This court decided the latter rule to be more in accord with Georgia law. The wisdom of this decision is borne out in that this has now become the majority rule in our country. See 49 A.L.R.3d 387. We therefore reaffirm the controlling principle to be as Headnote 1 of Fincher v. Fox, supra, succinctly states: '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.' Thus, 'the fact that the accumulation of the ice here was an act of God does not preclude examination into the question of whether or not the defendant was negligent in failing to take remedial action.' Id. p. 698, p. 652, 654 of 131 S.E.2d

2. Fincher v. Fox, supra, also makes clear at page 698, at page 654 of 131 S.E.2d that 'A landlord is not an insurer of the safety of his tenants. Liability results only from his failure to exercise ordinary care to make repairs after notice to him of the defective condition coupled with a failure to repair within a reasonable time. Ledbetter v. Gibbs, 19 Ga.App. 485(1), 91 S.E. 875; Rothschild v. First Nat. Bank, 54 Ga.App. 486, 188 S.E. 301; Dickey v. Suggs, 90 Ga.App. 124, 82 S.E.2d 24; Huey v. Nix, 94 Ga.App. 498, 95 S.E.2d 339.' Defendant concedes that its agents were appraised of the condition of the parking area in the case at bar. However, defendant seeks to escape liability on the ground that it did not have a reasonable opportunity to correct the condition prior to plaintiff's fall due to the prevailing circumstances. Whether or not the defendant was afforded a reasonable time within which to remedy the condition is, we think, a question for the jury. We cannot say that as a matter of law the circumstances were such that defendant was not able to correct the situation before the plaintiff was injured. '(W) hether there was a duty on the part of the owner of the apartment hotel to continue some employee at work while the dangerous condition prevailed . . . is a question of fact rather than a question of law.' Robinson v. Park Central Apartments, 248 F.Supp. 632, 636 (D.C. 1965). And see Hemmings v. Weinstein, 151 Conn. 502, 199 A.2d 687, wherein it was ruled the trial court properly refused to render a judgment...