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Dempsey v. Smith

Court of Appeals of Georgia
Jun 24, 1963
108 Ga. App. 88 (Ga. Ct. App. 1963)

Summary

In Dempsey v. Smith, 108 Ga. App. 88 (132 S.E.2d 233), this court followed Broyles v. Johnson, 100 Ga. App. 511, 513 (111 S.E.2d 766) and quoted with approval therefrom the following holding: "As against a general demurrer, allegations of facts from which the existence of a duty may be fairly inferred and showing a breach of it are sufficient.

Summary of this case from Frist v. U.S. 5 10c Stores, Inc.

Opinion

40078.

DECIDED JUNE 24, 1963.

Action for damages; landlord and tenant. Floyd Superior Court. Before Judge Scoggin.

Parker, Clary Kent, Hugh J. Martin, for plaintiff in error.

James Maddox, contra.


The petition alleges in substance that the defendant is the owner (landlord) of the house which is leased to the plaintiff's husband (tenant); that plaintiff lived in the house with her husband; that the house was unsafe due to termite infestation; that the landlord was repeatedly notified by the tenant that the house floor was out of repair due to termite infestation; that the landlord failed to sufficiently repair the house floor after repeatedly promising to do so; that a reasonable inspection by the landlord would have revealed the dangerous condition; that the plaintiff did not know of the latent dangerous condition of the floor at the particular place where it collapsed causing her injury; and that damages were sustained by the plaintiff from said injury.

"As against a general demurrer, allegations of facts from which the existence of a duty may be fairly inferred and showing a breach of it are sufficient." Broyles v. Johnson, 100 Ga. App. 511, 513 ( 111 S.E.2d 766). "The petition embraces all of the elements necessary to the maintenance of a cause of action based on negligence. These elements, four in number, are: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damages flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty." Lee Street Auto Sales, Inc. v. Warren, 102 Ga. App. 345 (1) ( 116 S.E.2d 243).

It is stated in Wall Realty Co. v. Leslie, 54 Ga. App. 560, 562 ( 188 S.E. 600): "Ordinarily the landlord must keep the premises in repair, and he is responsible for damages from failure to do so where he has knowledge or notice of the defective or dangerous condition therein. Code §§ 61-111, 61-112. This rule applies to the facts of this case, where the defendant rented the premises to the plaintiff's husband and parted with the possession, and where the defect in the premises was latent, and notice thereof had been given to the defendant, but of which defect the plaintiff had no knowledge at the time of her alleged injuries. `When the landlord is notified that the premises are out of repair, it becomes his duty to inspect and investigate in order that he may make such repairs as the safety of the tenant requires. It follows, therefore, that when after such notice the landlord fails within a reasonable time to make the repairs, he is chargeable with notice of all the defects that a proper inspection would have disclosed. To this extent he might be charged with liability for injury arising from a defect which was hidden so far as the tenant was concerned.' Stack v. Harris, 111 Ga. 149, 151 ( 36 S.E. 615). . . . "Members of a tenant's family, his guests, servants, employees or others present by his express or implied invitation, stand in his shoes, and are controlled by the rules governing the tenant as to the right of recovery for injuries arising from failure to keep the premises in repair.' Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 462 (2) ( 118 S.E. 694), and cit.; Hickman v. Toole, 31 Ga. App. 230 ( 120 S.E. 438); Kleinberg v. Lyons, 39 Ga. App. 774 (4) ( 148 S.E. 535). This rule is applicable to the facts of this case, where the defendant rented the premises to the plaintiff's husband and parted with the possession, and the defect in the premises was latent, notice of which had been given to the defendant by the tenant, but of which defect the plaintiff had no knowledge at the time of her injuries."

The trial court did not err in overruling the general demurrer. Beckmann v. Rayoske, 106 Ga. App. 203 ( 126 S.E.2d 550).

Judgment affirmed. Bell and Hall, JJ., concur.

DECIDED JUNE 24, 1963.


Summaries of

Dempsey v. Smith

Court of Appeals of Georgia
Jun 24, 1963
108 Ga. App. 88 (Ga. Ct. App. 1963)

In Dempsey v. Smith, 108 Ga. App. 88 (132 S.E.2d 233), this court followed Broyles v. Johnson, 100 Ga. App. 511, 513 (111 S.E.2d 766) and quoted with approval therefrom the following holding: "As against a general demurrer, allegations of facts from which the existence of a duty may be fairly inferred and showing a breach of it are sufficient.

Summary of this case from Frist v. U.S. 5 10c Stores, Inc.
Case details for

Dempsey v. Smith

Case Details

Full title:DEMPSEY v. SMITH

Court:Court of Appeals of Georgia

Date published: Jun 24, 1963

Citations

108 Ga. App. 88 (Ga. Ct. App. 1963)
132 S.E.2d 233

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