Summary
In Phillips v. Ray-Jean, Inc., 84 Ga. App. 38 (65 S.E.2d 617), the holding in the cases of Chamberlain v. Nash, 54 Ga. App. 508 (4) (188 S.E. 276), and Lee v. Malone, 55 Ga. App. 821 (191 S.E. 494), that in the absence of contractual obligations or statute a landlord is not required to maintain lights or to illuminate passageways was re-affirmed.
Summary of this case from Schneider v. MonnessOpinion
33419.
DECIDED MAY 25, 1951.
Action for damages; from Fulton Superior Court — Judge Whitman. November 27, 1950.
Fraser Shelfer, for plaintiff.
T. J. Long, for defendant.
The petition failed to state a cause of action against the defendant for personal injuries sustained by the plaintiff, a tenant in the defendant's multiple unit apartment house, when he fell or tripped over an obstruction (a toy wagon) alleged to have been negligently allowed by the defendant to remain in a walkway on the defendant's premises provided for the use of the defendant's tenants, since the allegations of the petition were insufficient to show actual or constructive notice to the defendant of the presence of the obstruction at the time of the injury.
DECIDED MAY 25, 1951.
G. H. Phillips Sr. sued Ray-Jean Incorporated, for damages. The petition alleged substantially that the defendant owns and operates a certain apartment house containing 84 units or separate residences, located in DeKalb County, Georgia, in which the plaintiff is a tenant occupying one of the units, known as apartment number two; that the plaintiff occupies said apartment under a certain lease contract which has among its other provisions, paragraph 20 providing that "Lessee shall faithfully observe the rules and regulations printed below which are made a part of this agreement"; that among the rules and regulations governing the use of the apartment was rule number one as follows: "Lessee shall 1. Not obstruct sidewalks, courts, entry passage, halls and stairways, nor allow children to loiter or play in them, nor use them for any purpose except ingress and egress; nor leave bicycles or other vehicles therein"; that on May 14, 1950, said apartment house had 82 of its 84 units occupied by tenants, each under identical leases like that of the plaintiff; that defendant maintains in the rear of said apartment certain garages and parking area and adjacent thereto a place for bicycles and toys to be placed and that defendant maintains a concrete walkway from the said parking area and adjacent thereto a place for bicycles and toys to be placed and that defendant maintains a concrete walkway from the said parking area around the end of said building to the front entrance, the front entrance being on the opposite side of the said apartment building from the parking area; that on the date mentioned at about 11:30 p. m. the plaintiff parked his automobile in the rear of the said building and proceeded along the said concrete walkway toward the front entrance; that at a point on said walkway about midway the end of the building the plaintiff was tripped and thrown to the concrete pavement with great force and violence sustaining certain described personal injuries; that the cause of plaintiff's fall was a small four-wheeled wagon, a child's toy which had been left on the walkway; that the said wagon was weatherbeaten, dark and discolored, and was not visible; that at the point where the plaintiff fell the walkway was dark and unlighted and plaintiff did not know of the presence of the said wagon upon the walkway and could not see it; that the defendant maintains a janitor on said premises for the purpose of keeping the walkways and approaches to said building unobstructed; that each of the other tenants in the apartment house was under an obligation imposed by their lease not to obstruct the sidewalks and to observe rule number one; that the defendant was under the obligation to see that other tenants did not obstruct the walkways and observed rule number one; that "petitioner alleges that defendant knew or should have known, in the exercise of ordinary care, of the presence of said wagon on said walkway"; that the defendant was negligent in failing to keep the walkway in question illuminated, in failing to keep the walkways unobstructed, in failing to enforce said rule and regulation number one with respect to all the other tenants in the said building, in permitting said wagon to be parked for the night on said walkway at the end of the building in a dark area, knowing that its presence in that location constituted a hazard to the occupants of the said building using the walkway, including the petitioner, and in failing through its agent and servant, the said janitor, to inspect said walkway for the purpose of discovering and removing therefrom the said obstruction; that defendant was further negligent in that it knew, or in the exercise of ordinary care, should have known, of the presence of said obstruction on said walkway under the circumstances described and that it constituted a hazard to the occupants of the building using the walkway, including the plaintiff. The trial court sustained a general demurrer to the petition and dismissed it. The sole exception here is to that ruling.
Stripping the allegations of the petition down to their barest essentials, only two grounds of negligence upon which the plaintiff seeks to hold the defendant liable are alleged, namely: in failing to provide a light for the walkway in question, and in permitting the toy wagon to be placed upon the walkway or in allowing it to remain there during the night when it could not be seen by persons rightfully using the walkway. That there is no duty on the part of the landlord to maintain lights or to illuminate passageways in the absence of contractual obligation to do so or of statute, seems to be well settled in Georgia. See Chamberlain v. Nash, 54 Ga. App. 508 (4) ( 188 S.E. 276); Lee v. Malone, 55 Ga. App. 821 ( 191 S.E. 494).
The other question presents only slightly more difficulty. As was said in Cook v. Kroger Baking Grocery Co., 65 Ga. App. 141, 142 ( 15 S.E.2d 531), "The innocence of the person injured does not necessarily establish the negligence of the defendant. The defendant can not be liable unless he owed to the person injured a duty which he neglected. The defendant is not an insurer." In other words, the plaintiff must recover, if at all upon the negligence of the defendant in failing to perform a duty owing the plaintiff. The mere fact that the plaintiff sustained an injury on the defendant's premises, or on premises over which the defendant had retained a qualified control, will not alone support a recovery. This rule is not modified by the fact that the defendant was the landlord of the plaintiff under the lease contract described. The plaintiff must show that the defendant was derelict in some duty owing him. Does the petition in this case sufficiently show the existence of such a duty on the defendant? Concededly, the defendant was under no duty to enforce rule number one until it had some notice of its imminent violation by some one of it tenants, or until it had actual or constructive notice of its actual violation. The allegations of the plaintiff's petition, that the defendant knew or should have known of the presence of the wagon make out simply a case of constructive knowledge. Pacetti v. Central of Georgia Ry. Co., 6 Ga. App. 97 (1) ( 64 S.E. 302. Such allegations may be sufficient to withstand a general demurrer, if the facts alleged are such to raise the inference of knowledge on the part of the defendant of the facts necessary to raise the duty to the plaintiff. However, in our opinion, in the present case no facts are alleged that would raise such an inference. It is not alleged how or in what manner the toy wagon came to be on the walkway in question. Presumably, it was left there by some child of one of the other tenants in the building, but the petition does not so allege, and no facts are alleged that would permit such an inference. Even so, it is not alleged that the wagon had been on the walkway for any specific length of time, such as to raise an inference that the defendant's agent and servant, the janitor should have seen it there and removed it. It is not alleged that there were a number of families (or even one) with children, among the defendant's tenants and that such children habitually left their wagons, toys and bicycles upon the walkways adjoining the building, so as to show that the defendant should have been on notice of such a custom and been on the lookout for it. Assuming that the terms of the contract of rental with the plaintiff raised a duty on the defendant to enforce rule number one against all the other tenants in the building for the benefit of the plaintiff, which it most certainly did not in terms do, this obligation was still a reasonable one and subject to the limitation that the defendant must have had knowledge, actual or constructive, of the violation of such rule before it became obligated to take steps to enforce it.
Under these rules the petition failed to state a cause of action against the defendant, and the trial court did not err in sustaining the general demurrer. See Brown v. S. H. Kress Co., 66 Ga. App. 242 ( 17 S.E.2d 758), and Miscally v. Colonial Stores Inc., 68 Ga. App. 729 ( 23 S.E.2d 860).
Judgment affirmed. Sutton, C. J., and Felton, J., concur.