Lewis Colquitt rented a house to Mark Rogers who placed an above-ground swimming pool on the premises. Although the pool was only four feet deep, Rogers attached a diving board to it. Colquitt was aware of the dimensions of, and attachments to, the pool.
Linda Rowland attended a house party given by Rogers. She dove off the diving board into the pool, sustained injuries to her neck, and sued Colquitt, Rogers and the manufacturer of the pool.
Upon review by certiorari, we hold that Colquitt cannot be liable because Rogers erected the pool after Colquitt relinquished possession and control of the premises.
1. A landlord's liability to a third person who is injured on property which was relinquished by rental or under a lease is determined by OCGA 44-7-14
. Howell Gas of Athens v. Coile, 112 Ga. App. 732
, 737 (146 SE2d 145
) (1965). That Code section reads:
Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.
The Code section makes it clear that a landlord who relinquishes possession of the premises cannot be liable to third parties for damages arising from the negligence of the tenant. Edgar v. Walker, 106 Ga. 454, 458 (32 SE 582) (1899); see Gardner v. Rhodes, 114 Ga. 929, 933 (41 SE 63) (1902) (landlord not liable to third persons for nuisance created by tenant who had exclusive possession of premises). This is so because " 'the use of the tenements really belongs to the tenant during the lease; they are his property to use for the term for which they are rented; and the landlord has no right to enter upon them, except by permission of the tenant, during the term for which they are rented.' " Gardner v. Rhodes, supra (quoting J. B. White & Co. v. Montgomery, 58 Ga. 204, 207 (1877)). To rule otherwise, i.e., to impose liability on a landlord for the negligent acts of his tenant, would yield a harsh and unwanted rule. See Goettee v. Carlyle, 68 Ga. App. 288, 293 (22 SE2d 854) (1942).
The record demonstrates that Rogers erected the pool after Colquitt relinquished possession and control over the property. Thus, Rowland cannot rely upon OCGA 44-7-14
to hold Colquitt liable. Compare Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989)
(summary judgment for landlord inappropriate where damages arise from failure to repair heater installed by landlord before lease and landlord knew of defect).
2. Rowland argues that Colquitt can be held liable under OCGA 44-7-13
even though he parted with possession because Rogers erected the pool with Colquitt's consent.
provides: "The landlord must keep the premises in repair. He shall be liable for all substantial improvements placed upon the premises by his consent." The clear import of this Code section is that the landlord is liable for the payment of costs for repairs or improvements made to the property by the tenant. It thus imposes contractual, but not tort, liability on a landlord. See, e.g., West View Corp. v. Thunderbolt Yacht Basin, 208 Ga. 93
, 96 (1) (b) (65 SE2d 167
) (1951); Roberts v. Roberts, 205 Ga. App. 371
, 372 (1) (422 SE2d 253
) (1992). It is OCGA 44-7-14
which deals with a landlord's tort liability "to third persons for damages."
We recognize that our courts have often cited OCGA 44-7-13
(and its predecessor, Code Ann. 61-111) along with OCGA 44-7-14
(and its predecessor, Code Ann. 61-112) in a tort context and that, therefore, the lines between these Code sections have been blurred. 1
However, our courts have never expressly held that OCGA 44-7-13
renders a landlord liable in tort to a third person for damages and we do not do so now. To the extent that any case may have implied otherwise, it is hereby disapproved.
L. Chandler Vreeland, Jason R. Hasty, A. Gregg Loomis, for appellee.