Ragland v. Rooker, s. 46322-46324

• Decision Date: 15 July 1971
• Docket Number: Nos. 46322-46324,No. 1,s. 46322-46324,1
• Parties: Beatrice RAGLAND et al. v. W. A. ROOKER, Sr., et al. W. A. ROOKER, Sr., et al. v. James GOOLSBY. W. A. ROOKER, Sr., et al. v. Beatrice RAGLAND et al
• Court: Georgia Court of Appeals

Page 579

183 S.E.2d 579

124 Ga.App. 361

Beatrice RAGLAND et al. v. W. A. ROOKER, Sr., et al.

W. A. ROOKER, Sr., et al. v. James GOOLSBY.

W. A. ROOKER, Sr., et al. v. Beatrice RAGLAND et al.

Nos. 46322-46324.

Court of Appeals of Georgia, Division No. 1.

July 15, 1971.

Rehearing Denied July 29, 1971.

Syllabus by the Court

1. In the various death actions here involved a jury question is presented as to the alleged negligence of the defendant landlord in the construction and leasing of an apartment in which various persons died of asphyxiation where it was contended that the furnishing of a dwelling unit built of airtight materials, with provision for the installation of an open flame gas heater but without provision for the intake of air other than doors and windows, or for an exhaust vent to carry away the products of combustion, was negligence proximately causing the deaths.

2. An invitee of a tenant is not, in a tort action based on the alleged negligence of the landlord, in the construction of the building, bound by restrictive covenants of a lease to which such invitee is a nonsignatory, or on provisions attempting to limit the liability of the landlord, whether or not such provisions are effective as between the immediate parties to the instrument.

3. Knowledge by the owner of rented premises of defects therein is conclusively presumed where the landlord is responsible for the construction. While it is not against public policy to enter into a lease agreement releasing the landlord or agreeing to indemnify him for damages resulting from his negligence, such contracts are not favored by the law and will be strictly construed against the indemnitee. The lease agreement here is not an absolute defense against the tenant in her action for damages for the death of her child allegedly asphyxiated as the result of defects in construction known to the landlord but not to the tenant at the time the lease was entered into. Jury questions are presented as to negligence of the landlord, contributory negligence of the plaintiff tenant, and whether the death in fact resulted from the failure of the tenant to discover and report a defective condition rendering the premises unsafe or untenantable.

Beatrice Ragland leased a two room apartment from the defendant, Muscogee Corporation, of which the Rookers were officers. The apartment house was of brick and cement construction. No utilities or heat were provided, but when the building was erected by the defendants gas stubs were provided in the poured concrete floors of the bed-living rooms for optional installation by tenants of a gas heating apparatus. No intake or exhaust air vents were supplied. On the night of January 15, 1968, during which the temperature was approximately 19 degrees, there were present in the apartment the plaintiff, her five year old son, her sister-in-law and the latter's two infants. The lessee had previously had installed and connected to the gas stub an open flame gas heater which was lit and which she turned down low before retiring. All doors and windows were closed, and the oxygen supply in the rooms was apparently exhausted. When discovered the tenant was in an unconscious condition and the other four occupants were dead.

The cases before us represent the tenant's action for the value of the life of her child and that of James Goolsby for the value of the life of his wife and two children who were guests of the lessee at the time of the tragedy. The defendants' motions for summary judgment in each case, and the tenant's motion for judgment on the issue of liability, were all denied in the trial court and are the subjects of the various appeals in this court. They will be considered together here.

Phillip Slotin, Rees Smith, Atlanta, for Ragland and Goolsby.

Neely, Freeman & Hawkins, Edgar A. Neely, Jr., Atlanta, for Rooker.

DEEN, Judge.

1. The thrust of the plaintiffs' action is that the construction and leasing of a building in which an unvented open flame radiant gas heater and gas stove may be used is negligence, and that the defect may be latent when it occurs in a living area which is otherwise airtight. The defendants contend that such a building pattern is not negligent because the windows and doors, if properly used, themselves act as vents, and that in any event the contributory negligence of the occupants is such as to bar these actions. Georgia has already held that whether or not the installation of such a heating system without a vent, so that carbon monoxide gas may be generated and injure persons in its vicinity, constitutes negligence is a jury question. Davey v. Turner, 55 Ga.App. 786, 191 S.E. 382. In a similar case, Gaida v. Hourgettes, 67 So.2d 737, 742 (La.App.), the court held: 'Common sense and common knowledge dictate to us that a gas operated water heater with Bunsen burner should be properly vented even in the absence of a local ordinance or law not specifically providing that such a heater must be equipped with a vent.' That case involved carbon monoxide poisoning because of the activity of an unvented water heater, whereas here, although the water heater had an exhaust vent, it had no inlet vent and neither the stove nor the radiant heater had any provision for venting at all. The argument that it was the tenant who installed the radiant heater begs the question; the landlord anticipated that the tenant would require heat, by the terms of the lease obligated itself to furnish no utilities except water, and made provision for a gas stove in the bed-living room by running a gas line stub up through the concrete floor. Since no vent was provided, and a vented heater would have been of no use to the tenant under the circumstances, she was not negligent in purchasing a heater which did not provide for a vent. Indeed, due to the construction of the house, a vent could only have been used by cutting through a four inch solid brick wall. In addition there is substantial expert testimony, contradicted in various respects, to the effect that there were four or five steel casement windows, none of which could be opened except by unlocking them, going around to the outside and pulling them open; that there were two doors, one in each room, wood case with sheet steel over the outside; that they were all very tight fitting and the apartment was built of solid brick covered with concrete and plaster, with concrete slab floor and roof, all of which allowed substantially less air intake than equivalent frame construction and that this, in connection with the lack of vents, constituted grossly substandard construction lacking in normal safety provisions. That the house was built by the defendant, Muscogee Corporation, of which the defendants, Rooker, Sr. and Rooker, Jr., are president and vice president respectively, is undisputed. In the case of defective construction by the landlord, its knowledge of the defect is conclusively presumed. Scarboro Enterprises, Inc. v. Hirsh, 119 Ga.App. 866, 868, 169 S.E.2d 182; Monahan v. Nat. Realty Co., 4 Ga.App. 680(1), 62 S.E. 127. So far as the tenant is concerned, and assuming that she even knew what a heater vent was, which she denied, knowledge when she rented the apartment that there was no place to install a vented heater would not necessarily be knowledge of the danger inherent in using such a heater with the type of construction used by the builder and alleged by the plaintiff to constitute a 'mantrap' and 'gas chamber.' The night in question, January 15, was of below freezing temperature; the explanation offered by the plaintiff that she did not go outside and pull the windows open because of the cold, the fact there were young infants inside, and the fact that she was afraid in that neighborhood to leave the doors and windows open, are all elements to be considered in regard to a determination of proximate cause and contributory negligence. A jury question is presented on this issue. The case differs in this respect from Hyde v. Bryant, 114 Ga.App. 535, 151 S.E.2d 925 where the injuries were alleged to have resulted solely from the fact that the gas heater did not have a protective grill, a patent defect notice of which was chargeable equally to all parties. Further, the Hyde case was...