Wells v. Citizens & Southern Trust Co., A90A1724

• Decision Date: 19 February 1991
• Docket Number: No. A90A1724,A90A1724
• Citation: 403 S.E.2d 826,199 Ga.App. 31
• Court: Georgia Court of Appeals
• Parties: WELLS v. CITIZENS & SOUTHERN TRUST COMPANY et al.

Page 826

403 S.E.2d 826

199 Ga.App. 31

WELLS v. CITIZENS & SOUTHERN TRUST COMPANY et al.

No. A90A1724.

Court of Appeals of Georgia.

Feb. 19, 1991.

Rehearing Denied March 12, 1991.

Certiorari Denied May 15, 1991.

Jack F. Witcher, John W. Kilgo, John W. Sherrod, for appellant.

Neely & Player, William C. Thompson, Julianna Kauderer, Leigh M. Wilco, Patrick K. Whaley, for appellees.

BANKE, Presiding Judge.

Appellant Wells sued the appellees, as the owners and managers of his apartment complex, to recover for injuries allegedly sustained when he fell while descending a stairway leading from his apartment to a parking lot behind the building. The appellant alleged that the stairway was insufficiently illuminated and that the appellees were liable for allowing such an unsafe condition to exist on the premises. The case is before us on appeal from the grant of the appellees' motion for summary judgment.

The appellant had been a resident of the building for approximately seven months at the time of the incident. His apartment had both a front and rear door, each opening to a separate stairway. On the night in question, the appellant exited his apartment through the rear door, as he routinely did several times a day. Upon closing the door behind him, he observed that the overhead light above the stairway was not on, but he nevertheless proceeded downstairs. Upon reaching a concrete landing located fewer than five steps from the top of the stairway and only two or three steps from the bottom, he realized that a second light, positioned outside the screen door at the bottom of the stairway, also was out. He continued on and fell on the final step, believing in the darkness that he had already reached the bottom of the stairway. There was testimony that the distance between the top of the stairway and the ground was only about five feet and that if the fixture outside the screen door had been on, the light from it would have been visible from the top of the stairs. Held:

While a landlord is under a statutory duty to keep the premises in repair (see OCGA §§ 44-7-13, 44-7-14), he is not an insurer of his tenants' safety. See generally Phelps v. Consolidated Equities Corp., 133 Ga.App. 189(2), 210 S.E.2d 337 (1974). "Even though the condition of the premises may be hazardous and the landlord negligent, he may not be liable for injury where the [tenant] had equal or superior knowledge of the alleged defect. If a [tenant] knows of a defect, '[he] must use all of [his] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [him].' [Cits.]" Hall v. Thompson, 193 Ga.App. 574, 388 S.E.2d 381 (1989). "Although the issue of the plaintiff's exercise of due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated where the plaintiff's knowledge of the risk is clear and palpable." Soucy v. Alexander, 172 Ga.App. 501, 502, 323 S.E.2d 662 (1984).

The appellant is charged "with knowledge of those defects which he had actually observed or which were so transparently obvious that his failure to observe them cannot reasonably be excused." Oliver v. Complements, Ltd., 190 Ga.App. 30, 32, 378 S.E.2d 154 (1989). It is apparent beyond dispute that the appellant was aware that the stairway was not illuminated before beginning his descent and that an...