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Action for damages. Fulton Superior Court. Before Judge Tanksley.
FELTON, Chief Judge.
The petition by a tenant seeking damages against a landlord for the failure to replace a burned-out light bulb in the hallway of the tenant's apartment does not set forth a cause of action and the action was properly dismissed on general demurrer.
Homer V. Hardigree sued the Housing Authority of the City of Atlanta for damages for personal injuries alleged to have been caused by the negligence of the defendant. The petition alleged in substance as follows: "3. At the time of the grievance herein complained of the petitioner was a tenant of the defendant corporation and lived in its apartment units at 985 Sells Avenue, S.W., Atlanta, Fulton County, Georgia. 4. On or about the 24th day of December, 1960, at approximately 4:00 a.m. o'clock, your petitioner came out of his bedroom which was on the upper floor of the apartment and was going to use the bathroom facilities which were also on the upper floor. 5. In going from the bedroom to the bathroom it was necessary that petitioner traverse the length of the upstairs hall. 6. Petitioner knew that the hall light was out but, nevertheless, was confronted with a situation in which it was extremely necessary that he traverse the hallway, and was compelled by circumstances beyond his voluntary control so to do. 7. Petitioner shows that due to the condition of darkness, he missed going into the bathroom and entered through the doorway leading downstairs. 8. Petitioner further shows that due to the darkness, he fell headlong down the stairway onto the hard downstairs floor and in so doing, he sustained a fracture of the left arm, a laceration of the chin and injuries to his head and neck. All of the bones, muscles, ligaments, tendons, skin and blood vessels in these areas were bruised, shocked and confused, and the injuries received as a result thereof are painful and permanent in nature . . . 10. Petitioner shows that the apartment units in which he was a tenant at the time of the grievance herein complained of had in full force and effect a restriction against any tenant attempting to make or making any alteration or repair to anything. 11. Petitioner further shows that prior to the time of the grievance herein complained of, he had advised the resident manager, a Mr. D. W. Huckeba, that the light was out in the upstairs hall, said Huckeba having been notified seven days and six nights prior to the time of the grievance herein complained of." The court sustained the defendant's general demurrer and dismissed the action, and the plaintiff excepted.
The decision on the question whether the petition set forth a cause of action is based on three basic related principles, as hereinafter stated: "The allegations of a petition must be construed most strongly against the pleader, and only facts well pleaded, and not the conclusions of the pleader, are admitted by the demurrer." Ford v. S. A. Lynch Corp., 79 Ga. App. 481, 484 (54 SE2d 320). "In construing a petition on general demurrer, the court will consider that the plaintiff intended to serve his own best interests and will construe the allegations of the petition most strongly against the pleader, and if any inference unfavorable to the rights of the party claiming right may be fairly drawn from the allegations of the petition, this will be done." Tarver v. Savannah Beach, Tybee Island, 96 Ga. App. 491, 494 (100 SE2d 616). "It is the general rule that when considered on demurrer, pleadings must be construed most strongly against the pleader, and the absence of averments of essential facts and reliance by the pleader upon allegations short of such facts require a holding that they did not exist." Hulsey v. Interstate Life &c. Ins. Co., 207 Ga. 167 (60 SE2d 353).
Application of the foregoing rules of construction of pleadings demands the conclusion that the petition failed to allege the breach of a duty on the part of the defendant and also showed on its face that the plaintiff failed to exercise ordinary care for his own safety and could have avoided the alleged negligence of the defendant, assuming there was some, by the exercise of ordinary care. Under the above rules of construction, a fair and reasonable construction of the petition, considering the facts alleged and those omitted, is as follows: That plaintiff emerged into his hallway from a bedroom; that a light bulb needed replacing in the hallway fixture, and as a consequence the hallway was unlighted; that the lights in the bedroom from which the plaintiff came were in working order; that the plaintiff failed to turn on the light in the bedroom prior to going into the hallway; that if the plaintiff had turned on the bedroom light there would have been sufficient light in the hallway to enable him to reach the bathroom; that the plaintiff had known for several days that the light bulb in the hallway needed replacing and that the hall was not properly lighted; that the plaintiff made no effort to replace the burned-out bulb in the hall; that he traversed the unlighted hallway without any attempt to obtain sufficient lighting to guide him safely. There is no allegation in the petition that it was the duty of the landlord to replace burned out light bulbs in the plaintiff's apartment and the allegations of paragraph 10 of the petition are not sufficient to allege such a duty. Replacing a burned-out light bulb cannot be considered an alteration or repair to the apartment. "There is no duty on the part of a landlord to maintain lights or to illuminate passageways, porches and steps in the absence of a contractual obligation to do so, or when so required by statute." Maloof v. Blackmon, 105 Ga. App. 207 (2) (124 SE2d 441), citing Phillips v. Ray-Jean, Inc., 84 Ga. App. 28, 39 (65 SE2d 617), and Srochi v. Hightower, 57 Ga. App. 322 (195 SE 323). Even if it were true that there was a duty on the landlord to replace the burned-out light bulb, the plaintiff was aware of the danger existing and could have easily avoided the consequence of the burned-out light bulb by the exercise of ordinary care. The petition did not set forth a cause of action and the court did not err in sustaining the general demurrer to the petition and in dismissing the action.
Smith, Field, Ringel, Martin & Carr, Palmer H. Ansley, Meade Burns, contra.
Llop & Long, Fred A. Gilbert, Joseph L. Llop, for plaintiff in error.
Friday May 22 22:18 EDT

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