' [Cits.]" Hearn v. Barden, 115 Ga. App. 708, 709-710 ( 155 S.E.2d 649) (1967). By appellant's own testimony, she was equally aware of the defective heater and of the danger inherent in using it.
In accordance with the "superior knowledge" principle, it has been held that "[w]here a portion of leased premises is dangerously out of repair and such condition is patent and known to the tenant, who continues to use that area, the tenant cannot recover from the landlord for damages resulting from the condition." Hearn v. Barden, 115 Ga. App. 708 ( 155 S.E.2d 649) (1967). The plaintiff in Hearn was injured through her use of a defective screen door at the rear of her house.
Adhering to the above Supreme Court authority, this Court has also held that a landlord is not liable for injury to a tenant caused by a patent defect of which the tenant had knowledge. Hearn v. Barden, 115 Ga. App. 708 ( 155 S.E.2d 649) (1967). Because Johnston admits she was aware of the absence of a handrail on the steps, the above Supreme Court authority requires dismissal of her defective construction claim under OCGA § 44-7-14.
(Citations and punctuation omitted.) Hohnerlein v. Thomas, 186 Ga. App. 282-283 ( 367 SE2d 95) (1988); Alexander v. Rhodes, 104 Ga. 807 ( 30 SE 968) (1898); Hearn v. Barden, 115 Ga. App. 708 ( 155 SE2d 649) (1967); Richardson v. Palmour Court Apts., 170 Ga. App. 204 ( 316 SE2d 770) (1984); Hall v. Thompson, 193 Ga. App. 574-575 ( 388 SE2d 381) (1989). It follows that, in order for Eschette to recover from Lariscy for injuries she claimed were caused or contributed to by a defect in the stairs, she was required to show that Lariscy had superior knowledge of the defect.
See Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 193 ( 210 S.E.2d 337) (1974); Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 ( 235 S.E.2d 601) (1977); Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 ( 335 S.E.2d 408) (1985); Fitzgerald v. Storer Cable Communications, 213 Ga. App. 872, 874 ( 446 S.E.2d 755) (1994). By implication, Thompson overruled contrary authority in cases such as Alexander v. Rhodes, 104 Ga. 807 ( 30 S.E. 968) (1898); Clements v. Blanchard, 141 Ga. 311, 312 ( 80 S.E. 1004) (1914); and Hearn v. Barden, 115 Ga. App. 708, 710 ( 155 S.E.2d 649) (1967), which held that, where the tenant knew of the defective condition in the rented premises and failed to avoid it, he assumed the risk of injury and was barred from recovering from the landlord, despite any showing of necessity. Since the absence of a handrail was plainly visible to Jaffs, she had equal knowledge of the defect in this case, and is barred from recovery under the equal or superior knowledge rule.
The landlord's duty to keep premises in repair can result in making him liable for a defect in the premises of which he has notice or actual knowledge. See Hearn v. Barden, 115 Ga. App. 708, 709 ( 155 S.E.2d 649) (1967); Howell Gas of Athens v. Coile, 112 Ga. App. 732, 735 (1a) ( 146 S.E.2d 145) (1965). Where defects render premises unsafe, the landlord may not avoid these statutory duties.
]'" (Emphasis supplied.) Thompson v. Crownover, 186 Ga. App. 633, 635 ( 368 S.E.2d 170); accord Richardson, supra at 205; Hearn v. Barden, 115 Ga. App. 708, 709-710 ( 155 S.E.2d 649); Williams v. Jones, supra. Here, there was full knowledge of the hazard by the appellant, equal or superior to that of the landlord ( Garnett v. Mathison, supra), a duty to avoid using the defective or unsafe portion of the premises ( Thompson, supra), knowledge of a safe but alternative route ( Lindsey, supra), and an election to use the known defective route, thus assuming the risk ( Bell, supra; Summer, supra; Yankey, supra).
Id. at 350. Thus, I cannot agree with the special concurring opinion that appellant was coerced by the circumstances or driven by necessity in a manner mitigating her knowing assumption of an obvious risk. Since I do not consider "necessity" to be an issue in this case, I need not address language in cases such as Hearn v. Barden, 115 Ga. App. 708, 710 ( 155 S.E.2d 649) (1967), in which it was stated that "even though the plaintiff alleged that the route chosen was one of necessity, yet where the plaintiff knew of the danger he assumed the risk and was guilty of such negligence as would bar recovery." (Emphasis supplied.)
Thus, this was not a case of negligent failure to undertake repairs. Compare Clements v. Blanchard, 141 Ga. 311 ( 80 S.E. 1004) (1913); Hearn v. Barden, 115 Ga. App. 708 ( 155 S.E.2d 924) (1967); Mullinax v. Cook, 115 Ga. App. 201 ( 153 S.E.2d 924) (1967); Bixby v. Sinclair Refining Company, 74 Ga. App. 626 ( 40 S.E.2d 677) (1946); Finley v. Williams, 45 Ga. App. 863 ( 166 S.E. 265) (1932). But see Richardson v. Palmour Court Apts., 170 Ga. App. 204 ( 316 S.E.2d 770) (1984) (Carley, J., dissenting), wherein the landlord had promised to make requested repairs, but the tenant knew that the landlord in fact had never undertaken to do so.