Opinion
42336.
SUBMITTED OCTOBER 4, 1966.
DECIDED OCTOBER 31, 1966.
Action for damages. Fulton Superior Court. Before Judge Whitman.
Muskett Moore, Charles E. Muskett, for appellant.
Reeves Collier, Rex T. Reeves, for appellee.
"A landlord is not liable for injuries to his tenant or to the members of the latter's family for injuries resulting from a patent defect existing at the time of the rental agreement as to which both the landlord and the tenant had equal knowledge."
SUBMITTED OCTOBER 4, 1966 — DECIDED OCTOBER 31, 1966.
This is an action by a tenant, as next friend of his three-year-old daughter, against his landlord for damages for the child's personal injuries sustained when her clothing caught fire as she was standing next to an unprotected gas heater in the leased apartment. It is alleged that plaintiff had occupied the premises approximately two months prior to the injury, that defendant had made various repairs of the premises and that defendant's negligence consisted of allowing the heater to remain without any protective guard, shield or plate to prevent the flames from emitting therefrom after having actual notice of this dangerous condition. The appeal is from the judgments sustaining the defendant's general demurrer to the petition and overruling the plaintiff's motion to set aside the judgment on the general demurrer.
"A landlord is not liable for injuries to his tenant or to the members of the latter's family for injuries resulting from a patent defect existing at the time of the rental agreement as to which both the landlord and the tenant had equal knowledge." Golf Club Co. v. Rothstein, 97 Ga. App. 128 ( 102 S.E.2d 654) and cit., affirmed, Rothstein v. Golf Club Co., 214 Ga. 187 ( 104 S.E.2d 83); Driver v. Maxwell, 56 Ga. 11 (2); Aikin v. Perry, 119 Ga. 263 (2, 3) ( 46 S.E. 93); King v. Smith, 47 Ga. App. 360 ( 170 S.E. 546); Davis v. General Gas Corp., 106 Ga. App. 317, 321 (2) ( 126 S.E.2d 820). "A latent defect is one which could not have been discovered by inspection. A patent defect is a defect which could be discovered by inspection." (Emphasis supplied.) Washburn Storage Co. v. General Motors Corp., 90 Ga. App. 380, 384 (2) ( 83 S.E.2d 26).
The petition does not allege that the child's injuries were caused by a defect in the heater, but merely that the absence of a protective device on the heater was a dangerous condition. It does not appear in what way the heater was any more dangerous than would be an open fireplace, for example. Even if this condition be considered a defect, however, it was a patent one, which reasonably could have been discovered by the plaintiff at the commencement of the lease, which occurred in November, at which time heaters are normally in use in this climate. While a child of three years of age is conclusively presumed to be incapable of contributory negligence and any negligence of his parent or parents would not be imputable to the child in an action in the child's behalf ( Oglesby v. Rutledge, 67 Ga. App. 656, 657 (2) ( 21 S.E.2d 497); Anthony v. Dutton, 73 Ga. App. 389 (2a) ( 36 S.E.2d 836)), as was pointed out in Golf Club Co. v. Rothstein, 97 Ga. App. 128, supra, p. 131, "this case does not turn upon contributory negligence on the part of the plaintiff, but rather on lack of negligence on that of the defendant."
The court did not err in its judgment sustaining the general demurrer to the petition.
Judgment affirmed. Frankum and Pannell, JJ., concur.