Summary
In Banks v. Housing Authority of the City of Atlanta, 79 Ga. App. 313 (53 S.E.2d 595), cited by the majority opinion, it appears that there was ice on steps.
Summary of this case from Gibson v. Consolidated Credit Corp.Opinion
32483.
DECIDED MAY 20, 1949.
Action for damages; from Fulton Superior Court — Judge Hendrix. February 15, 1949.
James Glenn Lamar, for plaintiff.
Neely, Marshall Greene, W. Neal Baird, for defendant.
A petition by a tenant against a landlord, for damages for injuries caused by the alleged negligence of the landlord in failing to remedy a defective and dangerous condition in respect to certain concrete steps which were used by the tenant, was properly dismissed on general demurrer, where it appeared from the petition that the condition consisted of a downward sloping of the treads and of hollow places worn in the treads where rain water collected and froze under the prevailing weather conditions that existed for two days prior to the occurrence, and that this condition was or should have been obvious to the tenant, and that her fall and injuries were the result of her own failure to exercise ordinary care under the circumstances.
DECIDED MAY 20, 1949.
Eva C. Banks sued the Housing Authority of the City of Atlanta, in Fulton Superior Court, for $50,000, on account of personal injuries allegedly sustained while using certain steps on the premises operated by the defendant, where she resided as a tenant.
Omitting certain allegations not necessary for an understanding of the issues involved, the petition, in substance, is as follows: 1. The defendant is a corporation, created under the laws of the State of Georgia, in accordance with the provisions of the act of 1937, p. 210 et seq., as amended (Code, Ann. Supp., § 99-1101 et seq.), and in accordance with 42 U.S.C.A. § 1401 et seq. 4. On December 26, 1947, the petitioner was a tenant in Apartment No. 2 in a housing project operated by the defendant at 495 Techwood Drive, N.W., Atlanta, this being a portion of the project known as Techwood Homes. 6. On said date the petitioner left her apartment, located in the basement of the building at the above address, mounted the stairs, and walked through the outside door of the building. 7. Immediately outside the exit door there is a concrete porch, some three feet above ground level. 8. There is a series of steps of concrete construction leading from the porch to ground level. 9. The petitioner crossed the porch and started down the steps to the ground level, proceeding cautiously and in the exercise of ordinary care. 10. "As petitioner descended the steps, her feet slipped from under her and she fell from the steps, forcibly striking a bench located near the steps, the said bench being the property of the defendant corporation, dislocating her right shoulder, producing severe contusions and bruises, and reducing petitioner to a state of nervous shock." 16. The steps were under the sole control of the defendant and were maintained and cleaned daily by its agents and servants, and defendant knew or ought to have known of any defects in the steps. 18. The steps had been allowed by the defendant and its agents, who were employed by the defendant for the purpose of maintaining the premises, to sink, so that the treads of the steps, instead of being level, sloped sharply downward. This fact was well known by the defendant, or should have been known by the defendant through its agents and servants in the exercise of ordinary care. 19. The steps were worn to a point where the treads had a slight hollow in each where rain water could and did collect. 20. At the time, rain water had collected in the hollows and frozen, so that the sloping surface of the steps was extremely slippery. 21. This condition was not obvious or apparent to the petitioner. 22. The steps were the only means of ingress and egress from the petitioner's apartment to the outside. 23. The steps were maintained by the defendant for use by the petitioner and other tenants, and it was the duty of the defendant to maintain them in a safe condition. 24. Rain had fallen for two days prior to the occurrence, and freezing temperatures had prevailed for the same two days, and the defendant knew or ought to have known that, with the steps in the condition that they were, they would be dangerous to the petitioner and the other tenants using them. 25. The defendant made no effort to correct the dangerous condition that prevailed, either by repairing the steps or by placing abrasive materials upon the steps, in order to protect the petitioner and the other tenants who used the steps.
The defendant demurred generally and specially to the petition, and the trial judge sustained the general demurrer and dismissed the petition.
Counsel for the housing authority rely on three general propositions as authority for sustaining the judgment of the trial court dismissing the action on general demurrer. These are: (1) A suit in tort cannot be maintained against the Housing Authority of the City of Atlanta. (2) The petition does not show that the defendant knew that the ice was on the steps, or that it had been on the steps for such a length of time as to charge the defendant with knowledge thereof. (3) The petition shows that the plaintiff in the exercise of ordinary care could have avoided the fall and her resulting injuries.
Assuming, without deciding, that the present action in tort can be maintained against the housing authority, it appears from the petition that the treads of the steps were sloping downward, and that the steps had been worn to a point where each of the treads had a slight hollow in it; and it also appears that for two days prior to the alleged accident it had rained and freezing temperatures had prevailed, and that rain water had collected on the steps and had frozen; but nothing appears in the petition to show why the alleged defective and dangerous condition of the steps was not obvious to the plaintiff. Construing the allegations of the petition most strongly against the pleader, as is proper on general demurrer, it appears that the defects in the steps were patent, that the defective and dangerous condition of these steps could have been determined by ordinary observation, and that anyone aware of this defective and dangerous condition would, in the exercise of ordinary care, have avoided the use of the steps, or, before using the steps, would have taken such precautions as to avoid being injured while using the steps. The general allegation of the plaintiff that the condition was not obvious or apparent, without any supporting facts, is overcome by the allegations showing the dangerous condition of the steps, which make it appear that the condition must have been apparent. It does not appear that the plaintiff's eyesight was defective, and if these steps were her only means of ingress and egress, certainly she must have noticed that the treads were worn and sloped downward, and the petition shows that she was aware of the weather conditions. The allegation that she was in the exercise of ordinary care is not supported by any facts, and her acts under the existing conditions show a failure to exercise ordinary care. The conclusion is inescapable, from a consideration of all the facts shown in the petition, that the proximate cause of the plaintiff's injuries was the failure on her part to exercise ordinary care in using the steps under the circumstances. While questions of negligence and proximate cause should ordinarily be submitted to a jury, it is the duty of the court to decide such questions in clear and indisputable cases, where, as here, the failure to use ordinary care for her own safety bars the plaintiff from recovery. It follows that the petition in this case failed to state a cause of action, and the trial judge did not err in sustaining the general demurrer of the defendant and dismissing the petition. See Jackson v. Davis, 39 Ga. App. 621 ( 147 S.E. 913); Aikin v. Perry, 119 Ga. 263 (2) ( 46 S.E. 93); Ball v. Walsh, 137 Ga. 350 ( 73 S.E. 585); Donehoe v. Crane, 141 Ga. 224 ( 80 S.E. 712); Mills v. Barker, 38 Ga. App. 734 ( 145 S.E. 502); Williams v. Jones, 26 Ga. App. 558 ( 106 S.E. 616); National Bellas-Hess Co. v. Patrick, 49 Ga. App. 280 ( 175 S.E. 255); Gallovitch v. Ellis, 55 Ga. App. 780 (3) ( 191 S.E. 384); Lee v. Malone, 55 Ga. App. 821 ( 191 S.E. 494); Kimball v. Morcock, 57 Ga. App. 750 ( 196 S.E. 125); Peeler v. Smith, 58 Ga. App. 470 ( 198 S.E. 827); Turner v. Long, 61 Ga. App. 785 ( 7 S.E.2d 595); Upchurch v. Coggins, 70 Ga. App. 205 ( 27 S.E.2d 869); Bixby v. Sinclair Refining Co., 74 Ga. App. 626 ( 40 S.E.2d 677).
Judgment affirmed. Felton and Parker, JJ., concur.