Appellant relies on Ragland v. Rooker, supra; Sport Shop, Inc. v. Churchwell, 131 Ga. App. 718 (2) ( 206 S.E.2d 715); and Mossie v. Pilgrim Self-Service Storage, 150 Ga. App. 715 ( 258 S.E.2d 548), for the proposition that an exculpatory clause in a lease is effective to protect the lessor from liability for his own negligence. Unfortunately for appellant, the first two of those cases and "any other cases to like effect" have been overruled by the Supreme Court in Country Club Apartments v. Scott, 246 Ga. 443, 445 ( 271 S.E.2d 841). The basis for the Supreme Court's opinion was that such clauses are void as against the public policy of this state, a public policy announced by the legislature in 1970 and reinforced in 1976. It appears, therefore, that notwithstanding the exculpatory clause in the lease agreement, appellant is liable for any damages incurred by appellee as a proximate result of appellant's ordinary negligence. See also Country Club Apartments v. Scott, 154 Ga. App. 217 ( 267 S.E.2d 811). Although the lease involved in Country Club Apartments v. Scott, 246 Ga. 443, supra, was a residential one, it is apparent that the Supreme Court intended to strike down exculpatory clauses in all leases, including commercial leases, since Sport Shop, Inc. v. Churchwell, supra; Tek-Aid, Inc. v. Eisenberg, 137 Ga. App. 99 ( 223 S.E.2d 29); and F. P. Plaza, Inc. v. Sugrue, 144 Ga. App. 543 (1) ( 241 S.E.2d 644), all involved commercial leases and were expressly overruled by the Supreme Court.
KRA argues that the statute applies to leasehold agreements. Country Club Apartments, Inc. v. Scott, 246 Ga. 443, 271 S.E.2d 841 (1980); Nat'l Candy Wholesalers, Inc. v. Chipurnoi, Inc., 180 Ga.App. 664, 350 S.E.2d 303 (1986). The Georgia courts have ruled that a landholder may not lease a building with an exculpatory clause protecting that landholder from his negligent failure to make required repairs.
See Emory University v. Porubiansky, 248 Ga. 391, 282 S.E.2d 903 (1981) (persons engaged in practice of medicine and dentistry may not contract with their patients to exculpate themselves from liability for their own negligence). See also Country Club Apartments v. Scott, 246 Ga. 443, 271 S.E.2d 841 (1980) (landlord cannot exculpate himself from liability arising from his own negligence). The offensive language in Frazer reads in relevant part:
Indeed, in addition to its application to more traditional construction contracts, see, e.g., Lanier at McEver, L.P. v. Planners & Engineers Collaborative, Inc., 284 Ga. 204(2), 663 S.E.2d 240 (2008) (statute applies to contract between developer and civil engineers for design of storm-water drainage system for apartment complex); Federated Dept. Stores v. Superior Drywall & Acoustical, Inc., 264 Ga.App. 857(1), 592 S.E.2d 485 (2003) (statute applies to contract between construction contractor and drywall subcontractor), the statute has been applied to commercial and residential lease agreements bearing little or no relationship to any ostensible building construction. See, e.g., May Dept. Store v. Center Developers, Inc., 266 Ga. 806(1), 471 S.E.2d 194 (1996) (applying statute to commercial lease); Country Club Apartments, Inc. v. Scott, 246 Ga. 443, 271 S.E.2d 841 (1980) (statute applies to residential lease agreement); Terrace Shopping Center Joint Venture v. Oxford Group, Inc., 192 Ga.App. 346, 384 S.E.2d 679 (1989) (statute applies to management agreement between commercial property owner and property manager); Nat. Candy Wholesalers, Inc. v. Chipurnoi, Inc., 180 Ga.App. 664, 350 S.E.2d 303 (1986) (statute applies to lease of booth space at trade show); Big Canoe Corp. v. Moore & Groover, Inc., 171 Ga.App. 654(1), 320 S.E.2d 564 (1984) (statute applies to property maintenance and rental agreement). Within this context, the Assignment Agreement clearly falls within the first threshold condition of the anti-indemnity statute.
Indeed, in addition to its application to more traditional construction contracts, see, e.g., Lanier at McEver, L.P. v. Planners Eng'rs Collaborative, Inc., 284 Ga. 204 (2) ( 663 SE2d 240) (2008) (statute applies to contract between developer and civil engineers for design of storm-water drainage system for apartment complex); Federated Dep't Stores v. Superior Drywall Acoustical, Inc., 264 Ga. App. 857 (1) ( 592 SE2d 485) (2003) (statute applies to contract between construction contractor and drywall subcontractor), the statute has been applied to commercial and residential lease agreements bearing little or no relationship to any ostensible building construction. See, e.g., May Dep't Store v. Center Developers, Inc., 266 Ga. 806 (1) ( 471 SE2d 194) (1996) (applying statute to commercial lease); Country Club Apartments, Inc. v. Scott, 246 Ga. 443 ( 271 SE2d 841) (1980) (statute applies to residential lease agreement); Terrace Shopping Ctr. Joint Venture v. Oxford Group, Inc., 192 Ga. App. 346 ( 384 SE2d 679) (1989) (statute applies to management agreement between commercial property owner and property manager); National Candy Wholesalers, Inc. v. Chipurnoi, Inc., 180 Ga. App. 664 ( 350 SE2d 303) (1986) (statute applies to lease of booth space at trade show); Big Canoe Corp. v. Moore Groover, Inc., 171 Ga. App. 654 (1) ( 320 SE2d 564) (1984) (statute applies to property maintenance and rental agreement). Within this context, the Assignment Agreement clearly falls within the first threshold condition of the anti-indemnity statute.
Id. at 729(6), 434 S.E.2d 791. But Hutchinson is silent as to the particular language of the disclaimer in the tariff, and in any case, the Tariff here contains a limitation on the GPA's disclaimer of liability for its own negligence. Compare, e.g., Country Club Apartments v. Scott, 246 Ga. 443, 444, 271 S.E.2d 841 (1980) (exculpatory provision for contracting parties' sole negligence void as against public policy). This claim of error is therefore without merit.
Indeed, this policy — that a landlord must make repairs and shall be liable for physical harm caused a tenant by the landlord's failure to exercise care to repair a known dangerous condition — is so strong that the legislature will not even allow a tenant to waive his right to damages for a breach of the landlord's duty through a provision in a lease. See Country Club Apartments v. Scott, 246 Ga. 443 ( 271 S.E.2d 841) (1980); OCGA § 44-7-2. As the result of its recognition of this policy and its importance, the Supreme Court in Thompson held that a plaintiff/tenant's equal or superior knowledge of a dangerous condition will not always preclude his or her recovery for injuries caused by that dangerous condition.