Opinion
39451.
DECIDED MAY 11, 1962.
Action for damages. Fulton Superior Court. Before Judge Pharr.
Weltner Branan, Charles L. Weltner, for plaintiff in error.
Lokey Bowden, Hamilton Lokey, contra.
The trial court did not err in sustaining the general demurrer to the petition as amended.
DECIDED MAY 11, 1962.
This was a suit by an employee of the defendant's lessee to recover damages for personal injuries sustained by said employee as a result of an alleged defect in the premises which existed at the time the lease was executed. The petition alleged that the defendant was the owner of certain premises located in Fulton County, Georgia, which were leased by the defendant to plaintiff's employer, Automatic Ice Maker Co., the lease commencing on September 1, 1959. On September 9, 1959, while petitioner was on the premises, she undertook to adjust a Venetian blind which was affixed to the wall of the building, and upon pulling the cord thereto, the blind fell from its position on the wall, striking her on the head and causing injuries which were set out in the petition. It was alleged that at the time the lease was executed and possession of the premises surrendered by the defendant to the lessee, the brackets holding the blind were not firmly affixed to the wall, but were so loosely in place as to be unable to support the weight of the blind upon normal adjustment; and that at the time the blind fell the brackets into which it fit had become dislocated from the wall causing it to fall. The petition alleged that the defendant was negligent in failing to inspect the premises prior to leasing them, and that said defect could have been discovered upon inspection in the exercise of ordinary care by the defendant.
The lease agreement, a copy of which was attached to the petition, provided that exclusive control of the premises was given to the lessee, who accepted them in their present condition and as suited for the uses intended by the lessee, and that the defendant lessor was under no obligation to inspect said premises.
The trial judge sustained the defendant's general demurrer to the petition as amended and the exception is to that judgment.
"The responsibility of a landlord for damages from personal injuries to a tenant or his invitee, for failure to repair a latent defect in the premises before leasing it, is not absolute, but is predicable only on his knowledge of the defect and consequent necessity for repairs." Elijah A. Brown Co. v. Wilson, 191 Ga. 750 (1) ( 13 S.E.2d 779). "This knowledge may, of course, be constructive as well as actual; for the landlord can not, merely by remaining ignorant of the facts out of which his duty arises, exempt himself from responsibility. Accordingly, if the facts be such that by the exercise of ordinary care in the performance of his obligation to keep the premises in repair he ought to have known of a latent defect therein, he becomes answerable in damages to the tenant, or one entering under the authority of the tenant, for personal injuries sustained by reason of such defect. [Citing cases]. Ordinary care in the fulfillment of the landlord's duty to keep the premises in repair does not, however, embrace an affirmative duty to make such an inspection of the premises as will disclose the existence of any and all latent defects which may actually exist therein. [Emphasis ours]. This would be but to place upon the landlord an absolute duty, not implicit in the statute, to rent premises free from latent defects." Elijah A. Brown Co. v. Wilson, 191 Ga. 751, supra.
It is implicit in the decision of the Supreme Court in the Brown case, supra, that there exists no absolute duty of inspection upon a landlord to discover defects in the premises prior to leasing them, for the reason that ordinary diligence, which is the measure of the duty imposed upon the landlord in such case, does not require an inspection where the landlord has no reason to think an inspection is necessary. See Cuthbert v. Schofield, 35 Ga. App. 443 ( 133 S.E. 303); Williamson v. Kidd, 65 Ga. App. 285 ( 15 S.E.2d 801); McCarthy v. Hiers, 81 Ga. App. 365 ( 59 S.E.2d 22).
Accordingly, where, as in the instant case, the petition does not allege facts showing actual knowledge of the alleged defect on the part of the landlord and where the circumstances alleged fail to disclose that there was anything to indicate the propriety or necessity of making an inspection to ascertain the possible or probable existence of any defects, a cause of action is not set forth against the defendant landlord because of the failure to repair the alleged defect in the premises prior to giving possession to the lessee.
The trial court did not err therefore in sustaining the general demurrer to the petition as amended.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.