Opinion
44243, 44244.
ARGUED FEBRUARY 3, 1969.
DECIDED MAY 19, 1969. REHEARING DENIED JUNE 26, 1969.
Action for damages. DeKalb Superior Court. Before Judge Hubert.
Henning, Chambers Mabry, Eugene P. Chambers, Jr., for appellants.
Bergman Meyers, Stewart Meyers, for appellees.
1. The proof adduced on motion for summary judgment failed to pierce the allegations that the defendants knew or should have known of the defective condition of the stairs which collapsed, injuring the plaintiff.
2. The terms of the lease agreement did not require a construction that the plaintiff agreed to exculpate the defendant from liability as to the defendant's own negligence.
ARGUED FEBRUARY 3, 1969 — DECIDED MAY 19, 1969 — REHEARING DENIED JUNE 26, 1969.
Ellis Hirsh filed a claim for damages in DeKalb Superior Court against Scarboro Enterprises. Inc. (hereinafter referred to as Scarboro) and Ward Wight Realty Company (hereinafter referred to as Wight). The plaintiff sought recovery for personal injuries he sustained when certain metal steps, affixed to the rear of a building he had leased from the defendant Scarboro through its agent Wight, collapsed. Tammy Hirsh, the plaintiff's wife, filed a claim for loss of consortium of her husband predicated on the identical facts in the plaintiff's claim. Thus, for purposes of simplicity, we shall consider cases 44243 and 44244 as one case.
The claim as amended alleged that the defendant Scarboro leased to the plaintiff "the ground floor only" of a store building located in DeKalb County; attached to the rear wall of the building was a stairway; that such stairway was defective as built by the defendants and under their direction; that the defect was not a visible one which could have been detected by the plaintiff; that the defendant knew, or by the exercise of ordinary care should have known, of the condition of the defective construction; that the defendant retained qualified possession and general supervision of the stairway. The claim further alleged that the defect in the steps was of a structural nature; that by the exercise of ordinary care at the time of the installation of the steps the defendants could have known that the stairway was defectively anchored to the building; that the defect was a latent one; that the defendants kept and maintained control of the steps and they repaired and replaced them after the collapse.
The defendants answered and denied the material allegations of the plaintiff's claim. The defendants subsequently filed their motions for summary judgment based on an affidavit and deposition. The plaintiff filed counter-affidavits and the motion came on for hearing. The trial judge denied the motion for summary judgment and certified that it would be subject to review.
The defendants enumerated the denial of the motion for summary judgment as error. Such proof as is pertinent to the issues will be discussed in the opinion.
1. The plaintiff alleged that the defendants knew, or by the exercise of ordinary care should have known of the condition of the defective construction. While in the case of defective construction the landlord's knowledge of such defect is conclusively presumed, this is true only if the construction was accomplished by the landlord or under his supervision or direction. Dobbs v. Noble, 55 Ga. App. 201, 203 ( 189 S.E. 694); Robertson v. Nat Kaiser Invest. Co., 82 Ga. App. 416, 419 ( 61 S.E.2d 298). As has been stated many times by our appellate courts: "A landlord is liable for injuries to his tenant arising from latent defects unknown to the tenant, existing at the time of the lease, provided the landlord actually knew, or in the exercise of ordinary care on his part might have known, of their existence." Downs v. Powell, 215 Ga. 62 (1) ( 108 S.E.2d 715); National Distributing Co. v. Ga. Industrial Realty Co., 106 Ga. App. 475, 477 ( 127 S.E.2d 303); Bazemore v. Burnet, 117 Ga. App. 849, 851 ( 161 S.E.2d 924).
The proof adduced relative to this allegation was as follows: The president of the defendant Wight stated in the affidavit that the defendant Wight contracted with a third party who added the metal steps to the rear of the building; that the steps were designed by the third party and all matters concerning construction thereof were left to it; that the steps were built, constructed, erected and added to the building completely by the third party and neither the defendant Wight nor the defendant Scarboro was involved in the supervision or construction of the building, and in the erection and building of the steps.
An expert witness for the plaintiff testified by affidavit that the steps were defective as attached to the wall since they were not properly supported from the ground; that the defective construction was one that could not have been seen by a party that was not involved in the original construction of the stairway to the wall, "for the reason that a person would have to be an original party to the construction in order to know how far the bolts go into the wall and whether or not the bolts were fastened into a plate in the side of the wall." The plaintiff admitted that he knew nothing of the construction of the stairs and was unaware who built the stairs since they were constructed prior to the time he entered into the lease.
On the motion for summary judgment the rule is well established that: "The burden is upon the moving party, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence." Internat. Brotherhood c. v. Newman, 116 Ga. App. 590, 592 ( 158 S.E.2d 298); Colonial Stores, Inc. v. Turner, 117 Ga. App. 331, 333 ( 160 S.E.2d 672). Moreover, opinion evidence is never sufficient to require the grant of a summary judgment. Harrison v. Tuggle, 225 Ga. 211 (2) ( 167 S.E.2d 395). The proof offered was insufficient to pierce the allegation that the defendant knew or should have known of the defective condition. While it tended to refute the allegation that the steps were constructed under the defendant's direction and control (however, see in this connection Code § 105-502 (4) in conjunction with Code §§ 61-111 and 61-112; Millard v. AAA Electrical Contractors, c., 119 Ga. App. 548 (3) ( 167 S.E.2d 679)), there is nothing to show, as a matter of law, that the defendant did not have knowledge of the defective condition prior to and at the time the lease was executed. Thus a jury question was presented as to this issue.
2. The defendants contend that the plaintiff expressly waived and contracted away any duty on their part to conform to a standard of conduct in their relationship with him. They argue that the following provision in the lease is controlling: "The lessee agrees to indemnify and save harmless the lessor against all claims for damages to persons or property by reason of the use or occupancy of the leased premises, and all the expenses incurred by lessor because thereof, including attorneys fees and court costs." In support of the contention the appellants cite, among others, Carter v. Noe, 118 Ga. App. 298 (1) ( 163 S.E.2d 348), which held: "A provision in a lease agreement that `renters hereby release owner and her agents, from any and all damages to both person and property and will hold them harmless from all such damages during the period of this lease' will preclude such lessee from holding the lessor liable in damages for injury to person or property because of negligence and failure to maintain and keep in proper repair the leased premises, regardless of whether or not the duty to maintain and repair was an obligation of the landlord generally."
The Carter case is not controlling in the case sub judice because the lease there expressly provided that the tenant released the landlord. The instant provision is styled an indemnity provision. It is well settled that, in a contract of this nature, any ambiguous provision is to be construed against the party who drew it and this is especially true regarding indemnity or exculpatory clauses. Farm Supply Co. v. Cook, 116 Ga. App. 814, 818 ( 159 S.E.2d 128); Covington v. Brewer, 101 Ga. App. 724, 729 ( 115 S.E.2d 368); Ins. Co. of N. A. v. Gulf Oil Corp., 106 Ga. App. 382, 388 ( 127 S.E.2d 43); Parkhill Trust Fund v. Carroll, 115 Ga. App. 108, 110 ( 153 S.E.2d 615). As pointed out in Batson-Cook Co. v. Ga. Marble c. Co., 112 Ga. App. 226, 230 ( 144 S.E.2d 547), "in the absence of explicit language to the contrary, courts will not interpret an indemnity agreement as a promise by the indemnitor to save the indemnitee harmless on account of the latter's own negligence." Thus, there being no express language requiring a finding that this provision acted to release the landlord from its acts of negligence, we will not so hold.
The trial judge did not err in denying the motions for summary judgment.
Judgments affirmed. Felton, C. J., and Pannell, J., concur.