Summary
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. cited various Georgia cases on the subject and discussed rulings from other jurisdictions which were the subject of an exhaustive annotation in 26 ALR2d 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.
Summary of this case from Phelps v. Consolidated Equities Corp.Opinion
39902.
DECIDED APRIL 8, 1963. REHEARING DENIED MAY 1, 1963.
Action for damages; landlord and tenant, summary judgment. DeKalb Superior Court. Before Judge Dean.
Levy Stonecypher, Jean Wm. Levy, for plaintiff in error.
Hurt, Baird Peek, Joe C. Freeman, Jr., Paul M. Hawkins, contra.
1. 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.
2. Where snow fell which was of itself insufficient to impede access to the apartment occupied by the plaintiff tenant, but did not ice over to the extent that it constituted a hazard until after sundown and the plaintiff was injured before midnight on the same night, and the petition alleges neither actual notice of the condition on the part of the defendant nor facts from which, in the exercise of ordinary care, he should have become apprised of the condition through lapse of time or otherwise, it not being caused by or contributed to by any act on his part, the facts stated fail to raise any duty on the part of the defendant to remove the ice prior to the time plaintiff received his injuries. It was not error to grant the defendant's motion for summary judgment.
DECIDED APRIL 8, 1963 — REHEARING DENIED MAY 1, 1963.
Melvyn Fincher as tenant filed an action for damages in the Superior Court of DeKalb County against Joe Fox as landlord alleging in substance that plaintiff occupied an apartment in a multi-unit apartment building owned by the defendant, the sole access to which was by means of a paved driveway leading from the building to the street and maintenance of which was reserved exclusively in the landlord; that on the night of January 9 this driveway was covered by a heavy snowfall and during the day of January 10 it became coated with hard snow and ice making it extremely dangerous to walk upon, which in the exercise of ordinary care should have been known to the defendant; that about midnight of January 10 plaintiff was walking on the driveway in order to enter his apartment when he slipped on the ice and fell, sustaining described injuries, and that although he was in the exercise of due care he could not avoid the result of the defendant's negligence. The defendant filed an answer and motion for summary judgment supported by the deposition of the plaintiff taken on cross-examination. It appears from the deposition that snow fell during the night of January 9 and was still falling when the plaintiff left for work the following morning; that he drove his automobile to his work at about 8 a. m.; that there was mostly snow on the ground and driveway at that time and until after dark on the night of January 10 when the major portion of the ice formed; that when the plaintiff returned at about 11:30 p. m. on the night of January 10 the driveway was a sheet of ice precluding his driving the automobile to the parking area, so he left it on the street. He then approached the building on foot across the lawn, but it was necessary for him to go around the corner of the building and to cross the inclined driveway and take two or three steps across the ice before reaching a parked automobile which would have given him support. While doing this he slipped on the ice, slid down the sloping ice-sheeted cement of the driveway, and sustained the injuries which form the basis of this action.
Upon these facts the trial court sustained the motion for summary judgment, and this ruling is assigned as error.
1. It is first argued that the formation of the ice on the driveway occurred without any negligence on the part of the defendant due to natural weather conditions and that the defendant cannot be held liable, even though as landlord he had a duty to keep the premises safe for tenants and their invitees ( Code § 105-401) and to keep the premises and approaches in good repair. Code § 61-112; Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (2) ( 116 S.E. 17). The contention raises the question of whether or not there is a duty on a landlord implicit in his general duty to keep the premises in repair to remove temporary accumulations of nature such as rain water, ice and snow. In Netherland v. Pacific employers Ins. Co., 101 Ga. App. 837, 841 ( 115 S.E.2d 122) this court begged the question, holding that there was involved not only ice which had recently formed but a slippery condition caused by soil erosion and accumulation of mud over a period of time. Likewise, in Wasserman v. Southland Investment Corp., 105 Ga. App. 420 ( 124 S.E.2d 674) there was involved not only natural ice, but ice due to the negligent manner in which the defendant landlord had attempted to clear the approaches to the apartment house. There is a divergence of opinion in other jurisdictions as to whether a duty rests upon the landlord under common-law principles to remove artificial and temporary accumulations of this nature which is the subject of an exhaustive discussion in 26 ALR2d 610 et seq., and from which it appears that Indiana, Maine, Massachusetts, New York (on occasion) and Ohio have followed the rule that generally no such duty exists, whereas Connecticut, the District of Columbia, New Hampshire, New Jersey, later New York cases, Ohio and Oregon tend 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. See also Grizzell v. Foxx, 48 Tenn. App. 448 ( 348 S.W.2d 815). This would seem to be more in accord with Georgia law, where generally the duty as interpreted by legal decisions over a period of years remains constant and the yardstick furnished by decided cases may be applied although the situation is a new one, as for example applying applicable principles of automobile negligence law to a tort action involving negligence in operating an airplane. Sammons v. Webb, 86 Ga. App. 382 ( 71 S.E.2d 832). This principle is regularly followed in determining negligence of an owner to invitees involving natural and temporary accumulations of rain water. Hill v. Davison-Paxon Co., 80 Ga. App. 840 ( 57 S.E.2d 680). An act of God is one which occurs by reason of inevitable natural forces unaffected by human agency ( Code § 102-103), and 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. This ground of the motion for summary judgment is without merit.
2. 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). "In order for the landlord to be liable it must appear that notice of the defective and unsafe condition of the premises had been given to him, and a reasonable opportunity afforded him to repair the defective condition; or it must appear that the landlord otherwise had knowledge of the defect in the premises that caused the tenant to receive personal injuries." Upchurch v. Coggins, 70 Ga. App. 205, 206 ( 27 S.E.2d 869). The notice may be actual or constructive, but, if the latter, it must be shown to have existed for such a length of time, or under such circumstances as to put the owner of the building on notice before he will be liable for resulting injuries. Lupion v. Blass, 101 Ga. App. 264 ( 113 S.E.2d 413). Usually, what is a reasonable time is a jury question. In the present case the allegation is that the landlord "Knew or should have known" of the dangerous condition, which amounts to only constructive notice. Doyal v. Russell, 183 Ga. 518 ( 189 S.E. 32). Neither in the pleadings nor in the affidavit is it shown that the adverse weather conditions were so widespread as to place the landlord on notice of the icy condition of this driveway. The bulk of the ice did not form until after sundown of the day in question, and the plaintiff was injured shortly before midnight. It appears that there was snow at an office building where the plaintiff went on the morning of that day, and in front of a nearby apartment house which he visited after working hours. It does not appear whether weather conditions were such that the snow which fell on the driveway the night before and which was not sufficient to obstruct it the next morning might reasonably have been expected to turn to ice, or that other parts of the city generally were in the grip of an ice storm. The ice formation took place after the close of the working day at a time when it might well be impossible to obtain service for its removal; as a matter of fact it is inferable that the defendant lived in an adjoining county and the apartment house was in charge of a real estate company which presumably had closed for the day at the time the dangerous condition commenced to form. It thus appears both that there was no actual notice or knowledge on the part of the landlord and no sufficient factual averments to predicate a recovery on the ground of implied notice. Cf. Jones v. West End Theatre Co., 94 Ga. App. 299 ( 94 S.E.2d 135). In Allan v. Essanee, Inc., 309 Mass. 1 ( 33 N.E.2d 271), a verdict for the plaintiff was reversed for lack of a sufficient time interval to charge the defendant with constructive notice and an opportunity to remedy the condition where, although there was testimony that it had snowed and frozen two days before and there had been a slight thaw the day before, there was no testimony as to ice other than on the morning of the accident. The same result was reached in Gianpaola v. Paoli, 129 NYS 180, where there was testimony that sleet and freezing rain had fallen for a period of two days before the plaintiff slipped on an accumulation of snow and ice. The facts here are insufficient to present a jury question on the alleged defective maintenance of the premises by the defendant where the condition had existed for less than six hours during the evening and night and no actual notice was given by the tenant or acquired by the landlord or his agent.
The trial court did not err in granting the defendant's motion for summary judgment.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.