Rothberg v. Bradley
| Decision Date | 17 January 1952 |
| Docket Number | No. 33681,No. 2,33681,2 |
| Citation | 85 Ga.App. 477,69 S.E.2d 293 |
| Parties | ROTHBERG et al. v. BRADLEY |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. A landlord, who retains a qualified possession and general supervision of the demised premises, and who, by express or implied invitation, induces or leads others to come upon such premises for any lawful purpose, is liable in damages to such person for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.
2. A guest of a tenant is an invitee upon the premises of the landlord where he is invited by the tenant and visits him in such premises.
3. As to such guest, the landlord, retaining qualified possession and general supervision of an apartment house building, owes a duty and is under the obligation to keep and maintain same in a reasonably safe condition and to warn the invitee of defects therein, of which the landlord knows or could have known by the exercise of ordinary care.
4. While a tenant could not recover of the landlord for injury occasioned by a defect in the premises of which the tenant has knowledge, the guest of the tenant, who does not have such knowledge and is not chargeable therewith, and who is rightfully upon the premises and is injured by such defective condition, may recover of the landlord.
5. An invitee in entering upon an apartment building is entitled to rely upon the performance by the landlord of his obligation and duty to keep the premises in a safe condition.
6. A petition, alleging that the plaintiff's husband met his death by falling into an unguarded and unlighted air shaft, located upon the roof of an apartment building, of which neither the plaintiff nor her deceased husband had any knowledge, and was was invited upon the roof of the apartment building by the landlords' agent managing the apartment house, and who occupies an apartment therein as a tenant, where it is customary for the tenants of such building to use the flat roof thereof for the purpose of sitting in the evenings to enjoy the fresh and cool air and to enjoy the lights of the city, set forth a cause of action for submission to a jury and the trial court did not err in overruling the general demurrer of the defendants, the landlords, thereto.
Mrs. Leila W. Bradley filed suit in the Superior Court of Fulton County against Samuel Rothberg and Florence W. Maxwell, seeking to recover damages for the death of her husband, Paul W. Bradley, alleged to have been the result of the negligence of the defendants, and set up substantially these facts: On August 12, 1950, the defendants owned a three story apartment house building in the City of Atlanta, Fulton County, Georgia, known as No. 211 Ivy Street, N. E.; that the apartments therein were rented to individuals, the defendants at all times, retaining 'a qualified control over the entire building for the purpose of inspection, maintenance, repairs and upkeep;' that at the times referred to J. H. Potts and his sister occupied an apartment in said house and was the agent and servant of the defendants, being manager of the apartment building and charged with the duty of showing apartments therein to prospective tenants, maintaining and keeping the heating system in operation, and looking after the maintenance and general repair of the house and the comfort and convenience of the tenants therein; that for 12 months prior to the above date, numerous tenants, including Potts and his sister, and her invited guests, the names and the actual number thereof being unknown to the plaintiff, had been accustomed to go upon the roof of said building, during both day and night, and if at night for the purpose of enjoying the view of the city, and in warn weather for the additional purpose of enjoying the cool air afforded thereby and, if during the day to enjoy the view and the sunshine and fresh air; for this purpose, the defendant's agent, Potts, kept and maintained cots and seats on this roof; that tenants and their guests were accustomed to go upon this roof for said purpose and the defendants should have exercised ordinary care in making said premises reasonably safe for those so doing; that on the night of said August 12, 1950, the plaintiff and her said husband together with one Otis Jones and his wife were 'the invited guests of said Potts and his sister at their apartment in said building; that shortly after their arrival, these guests were invited by Potts and his sister to go upon the proof of the apartment building to enjoy the city lights and the cool fresh air; it being a sultry evening, and all of said parties thereupon went to the roof' by way of a stairway, the door of which opened onto the top of the roof; that this door faces north and is located in the middle of the roof of this building; that this roof is of a flat type, made of gravel and tar, and the same slants slightly downward from the Ivy Street side of the building; 'that as one passes through said door the roof immediately to the right and to the front is level and unbroken, but immediately to the left there is an air shaft which is approximately 40 feet long and 12 feet wide, which air shaft extends downward for 3 floors where it is covered by a skylight over a part of the basement to the building;' that 'there were no lights on the roof and it was only dimly and imperfectly lighted by the reflection of lights from surrounding buildings and one could only discern the general outlines thereof and in said imperfect lighting the air shaft * * * was not apparent nor discernible;' that neither the plaintiff nor her said husband 'had ever been on the roof before and they were wholly unfamiliar with it or anything about it;' that the defendant's said agent and his sister 'preceded their invited guests in going onto the roof, but they gave no warning or cautionary instructions to any of them and they failed to mention the air shaft * * * which, under all the circumstances as herein related, was a hidden mantrap and pitfall;' that when the said Potts and his sister and their said guests got upon the roof they proceeded to place themselves in positions where they might advantageously view the city lights and the plaintiff's husband 'went to the left when his foot struck a small ledge an inch or two high, which was on the margin of said light shaft and he was caused to lose his balance thereby, and then he plunged downward three stories through the skylight into said basement' his body being so injured and mangled that death immediately ensued; and that the joint negligence of the defendants in failing to have a guard rail or some other form of protection around said light shaft, in maintaining a hidden mantrap or pitfall upon said roof, in failing to warn the plaintiff's husband of said concealed mantrap or pitfall, and in failing to provide lights on the roof so that persons thereon might see said mantrap or pitfall, was the sole cause of the death of the plaintiff's husband.
The defendants demurred generally to the petition 'upon the ground that the facts alleged therein are insufficient in law to constitute a cause of action.' The trial judge overruled the said demurrer of the defendants and the defendants except thereto by writ of error to this court.
T. J. Long, Atlanta, for plaintiff in error.
Hewlett, Dennis, Bowden & Barton, Atlanta, for defendants in error.
'Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.' Code section 105-401. It is the duty of the owner of a building to exercise for the safety of invitees therein ordinary care in discovering defects or dangers, and such owner is liable for failure to warn invitees of dangers or defects in the premises of which he knew or by the exercise of due care should have known. Fulton Ice & Coal Company v. Pece, 29 Ga.App. 507, 116 S.E. 57. Therefore, where one enters upon the premises of another for purposes connected with the owner's business conducted on the premises, he is an invitee, and the owner is liable to him in damages for failure to exercise such ordinary care in keeping the premises safe. Such duty to keep the premises safe for invitees extends to all portions of the premises for which invitation was extended and at which the invitees presence should be reasonably anticipated, or to which he is allowed to go. This duty applies to hidden dangers, mantraps, pitfalls and the like, and the person responsible for such dangerous place or instrumentality must guard, cover or protect it, for the safety of persons rightfully at or near it and timely warning thereof should be given to such persons. Coffer v. Bradshaw, 46 Ga.App. 143, 167 S.E. 119. The owner is liable for failure to warn invitees of dangers or defects, of which he knew or of which in the exercise of ordinary care it was his duty to know. Tybee Amusement Co. v. Odum, 51 Ga.App. 1, 179 S.E. 415. The invitation may be implied by dedication or may arise from the known and customary use of portion of certain premises and it may be inferred from conduct, if notorious or actually known to the owner or his authorized agent, or from any state of facts in which such invitation naturally and necessarily arises. See Cook v. Southern Ry. Co., 53 Ga.App. 723(5), 187 S.E. 274; Flint River Cotton Mills v. Colley, 71 Ga.App. 288, 30 S.E.2d 426.
While the use of the words 'owner or occupier of land' in Code sec. 105-401 is not synonymous with 'landlord' as used in Code sec. 61-112, yet where a landlord retains a qualified possession and general supervision of the premises he may be liable for injuries arising from his failure to maintain same in proper repair even without actual...
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