Opinion
42716.
SUBMITTED APRIL 5, 1967.
DECIDED MAY 5, 1967.
Action for damages. Fulton Superior Court. Before Judge Pye.
James E. Hardy, for appellant.
Powell, Goldstein, Frazer Murphy, John T. Marshall, Kendrick W. Mattox, Jr., for appellee.
Where a portion of leased premises is dangerously out of repair and such condition is patent and known to the tenant who continues to use that area, the tenant cannot recover from the landlord for damages resulting from the condition.
SUBMITTED APRIL 5, 1967 — DECIDED MAY 5, 1967.
This was a suit to recover damages for personal injuries brought in Fulton Superior Court. The petition as amended alleged that: the plaintiff's husband rented a house at a certain described location in Atlanta from the defendant and on January 30, 1966, the plaintiff was living with her husband as a tenant in the house; the house had a front door and a back door; on January 30, 1966, there was a screen door at the rear of the house which door "was in bad repair," had at least 4 long nails protruding from the inside of the door toward the inside of the house and had a large tear in the lower part of the screen; there was a spring attached to the door which pulled it to; the screen door at the back entrance could not be opened completely because of a brick wall that acted as a barrier; the defendant knew of the "disrepair" of the door and of the nails therein.
The petition further alleged that: although there were 2 exits to the house, on the date of the accident, it was necessary for the plaintiff to use the back door because the front porch had been painted by agents of the defendant; "that at said time and place, the plaintiff knew said nails were in said door, but she did not have the right or permission of defendant to repair the same, and this back door was the only exit from said home at said time and it was necessary for plaintiff to depart said home to attend to an aunt that was sick with cancer."
The petition then alleged that: as the plaintiff was leaving the house via the back door the spring pulled the door to and the protruding nails caught the plaintiff's clothing causing her to be thrown down against the brick wall and injuring her. The defendant was alleged to be negligent: (1) in failing to repair the back screen door when he knew it was in disrepair and had protruding nails; (2) in failing to pull the nails from the inner surface of the back screen door; (3) in allowing the nails to remain in the door, knowing they were likely to catch people's clothing; (4) in failing to keep the property in proper repair and in safe, livable condition. The petition sought to recover damages for injuries resulting from the accident.
The trial judge sustained the defendant's renewed general demurrers to the petition as amended and the plaintiff appeals from that adverse judgment.
A landlord has no duty of inspection "for the purpose of discovering defects arising subsequent to the time of the lease, and he is, therefore, not liable to his tenant for injuries resulting from defects thus arising, unless he has had actual knowledge of them, or has been notified of such defects and has failed to make repairs within a reasonable time, and the tenant could not have avoided the injuries resulting therefrom by the exercise of ordinary care on his own part." Finley v. Williams, 45 Ga. App. 863, 864 (1) ( 166 S.E. 265).
In our view the plaintiff can not recover because the petition reveals that she failed to exercise ordinary care for her own safety. The petition alleges "the plaintiff knew said nails were in said door." A landlord is not liable for injuries to a tenant arising from a patent defect of which the tenant knew, or had means of knowing equal to those of the landlord. Waddell v. Wofford Oil Co., 84 Ga. App. 617 ( 66 S.E.2d 806). "When rented premises become defective and unsafe it is the duty of the tenant to refrain from using that part of the premises the use of which would be attended with danger. It is his duty to exercise ordinary care for his own safety, and where he is injured as a result of his failure to exercise such care, he can not recover damages from his landlord, even though the latter may have been negligent in failing to make repairs." Jackson v. Davis, 39 Ga. App. 621 ( 147 S.E. 913); Bixby v. Sinclair Refining Co., 74 Ga. App. 626 ( 40 S.E.2d 677).
This case is controlled by Taylor v. Boyce, 105 Ga. App. 434 ( 124 S.E.2d 647), and Alexander v. Rhodes, 104 Ga. 807 ( 30 S.E. 968), which held that even though the plaintiff alleged that the route chosen was one of necessity, yet where the plaintiff knew of the danger he assumed the risk and was guilty of such negligence as would bar recovery.
Chotas v. J. P. Allen Co., 113 Ga. App. 731 ( 149 S.E.2d 527), relied upon by the plaintiff, is distinguishable since there it was pointed out that the plaintiff had no actual notice or knowledge of the defect.
Judgment affirmed. Jordan, P. J., and Deen, J., concur.