Opinion
37184.
DECIDED JUNE 23, 1958.
Tort; injuries to invitee in home. Fulton Superior Court. Before Judge Pharr. March 19, 1958.
Woodrow Tucker, Glyndon C. Pruitt, for plaintiff in error.
T. J. Long, Ben Weinberg, Jr., contra.
The owner of land is liable to invitees for injuries which they sustain as a result of his failure to warn them of dangers or defects in the property of which he knew or in the exercise of reasonable care should have known.
DECIDED JUNE 23, 1958.
Mrs. Josephine Davis Lenkeit filed a suit for damages against Mrs. Enorree B. Chandler.
The petition alleged in part that: on or about April 8, 1956, petitioner visited the defendant at her home at 910 E. Cleveland Avenue, East Point, Georgia, and while there was invited by the defendant to view the interior of a new room which had been added to the defendant's home; the new room had not been completed but had an entrance which could be entered only by walking on a board which rested on a sill on the entrance to the room at one end and on the earth at the other; the defendant proceeded ahead of petitioner, walked up said board into the new addition or room and asked the plaintiff to follow her indicating that the board was safe; about one-half way up the board as the defendant was walking, her weight was shifted to the left side of the board, the board titled and sank into the earth throwing petitioner to the ground causing certain injuries; petitioner shows that the end of the board resting upon the ground was on solid foundation of firm dirt for about two-thirds of the width of the board, but the left third had been anchored into soft dirt which would give when weight or pressure was exerted on that portion of the board and which was not detectable by petitioner as she proceeded upon and into the entrance to the room; the above stated injuries were the direct and proximate results of the negligence of the defendant combined together or separately to cause the same; (a) the defendant was negligent in not warning petitioner of the dangerous condition that existed as has been heretofore described; (b) that the defendant was negligent in not anchoring the end of the board in a solid foundation; (c) the defendant was negligent in permitting the end of said board on the ground to be partially on firm foundation and partially on soft dirt which permitted the same to tilt when weight or pressure was exerted on one-half of said board.
The defendant filed a general demurrer to the petition. The judge sustained the demurrer and the plaintiff excepts.
The owner of land is liable to invitees for injuries which they sustain as a result of his failure to warn them of dangers or defects in the property of which he knew or in the exercise of reasonable care should have known. Coffer v. Bradshaw, 46 Ga. App. 143 (6) ( 167 S.E. 119); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 ( 179 S.E. 415); Code § 105-401. Under the allegations of the petition of the plaintiff occupied the status of an invitee at the time she sustained the injuries. Hickman v. Toole, 31 Ga. App. 230 (1) ( 120 S.E. 438); Crossgrove v. A. C. L. R. Co., 30 Ga. App. 462 (1) ( 118 S.E. 694); Mandeville Mills v. Dale, 2 Ga. App. 607, 611 ( 58 S.E. 1060). The petition alleged that the defendant was negligent in "permitting" the board to be placed in its dangerous position and in failing to warn the plaintiff thereof. Under the ruling in Colonial Stores Inc. v. Scholz, 73 Ga. App. 268 ( 36 S.E.2d 189) this allegation was tantamount to an averment that the defendant had actual knowledge of the defective condition of the premises. Applying the authorities cited in the above opinion the petition set forth a cause of action and the judge erred in sustaining the general demurrer.
It being alleged that the defendant had actual knowledge of the defect which was not detectable by the plaintiff, the petition set forth a cause of action even if the plaintiff had been a licensee rather than an invitee. Cook v. Southern Ry. Co., 53 Ga. App. 723 ( 187 S.E. 274); Bowers v. Texas Co., 65 Ga. App. 874, 876 ( 16 S.E.2d 765).
Judgment reversed. Felton, C. J., and Nichols, J., concur.