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Action for damages. Before Judge Andrews. Fulton Superior Court. December 12, 1953.
1. A landlord, who retains control, supervision, and possession of a stairway used in common by tenants and their invitees to reach the premises leased, is liable to an invitee of a tenant for injuries sustained when the invitee put a loosely fastened handrail on the stairway to its intended use by grasping it to support himself, and the handrail gave way, and where the defective condition of the handrail was not apparent to the tenant's invitee but could have been discovered by the landlord, in the exercise of ordinary care, by placing a hand upon the railing to test it at any time during the week before it gave way. Marr v. Dieter, 27 Ga. App. 711 (109 S. E. 532); Mattox v. Lambright, 31 Ga. App. 441 (120 S. E. 685); Crossgrove v. A. C. L. R. Co., 30 Ga. App. 462 (118 S. E. 694); Rothschild v. First Nat. Bank of Atlanta, 54 Ga. App. 486 (188 S. E. 301); Rothberg v. Bradley, 85 Ga. App. 477 (69 S. E. 2d 293). The cases of McCrory Stores Corp. v. Ahern, 65 Ga. App. 334 (15 S. E. 2d 797), McCarthy v. Hiers, 81 Ga. App. 363 (59 S. E. 2d 22), and Howerdd v. Whitaker, 87 Ga. App. 850 (75 S. E. 2d 572), cited and relied upon by the plaintiff in error, are not in point.
2. Whether the plaintiff invitee was negligent in stopping on the stairs to remove a coathanger from the leg of his trousers and in placing his hand upon the defective railing to stabilize himself, and so caused his own injuries, are questions to be passed upon by a jury.
3. The court did not err in overruling a general demurrer to a petition setting out the foregoing facts.
The exception is to a judgment overruling the renewed general demurrer of the defendant, Duffee-Freeman, Inc., to the amended petition of Kenneth P. Knudsen, Jr., in which the following allegations, in substance, were made: The defendant is the owner of a building known as 843-845 Peachtree Street in Atlanta, and leased office space on the second floor of the building to several tenants. Access to the second floor is by a street entrance, consisting of two flights of stairs, the first flight leading from street level to a landing, and the second flight from the landing to the second floor. Handrails are provided for both sides of both flights of stairs. The defendant retained control, supervision, and a qualified possession of the common stairway, to maintain it for the use of its tenants and their customers and invitees. The petitioner went onto the stairway from the street to fulfill a previously made business appointment with a tenant on the second floor. He reached the landing at the head of the first flight of stairs, and proceeded to walk up the second flight. At the second step, he observed a coathanger attached to his trouser leg. He stopped to remove the coathanger and placed his hand upon the right handrail to stabilize himself. The hand-rail gave way and came loose from the wall, causing the petitioner to fall backward on the landing and down the first flight of stairs to the ground floor. The section of the round, wooden hand rail upon which he had placed his hand was about three feet long, and, with its metal wall bracket, was detached completely from the wall. The section of handrail was not well secured, was in a loose and dangerous condition, and was insufficient to provide support and balance. It was attached to the plaster wall by a metal wall bracket at its lower end, and this bracket was loosely connected to the plaster wall by screws. The lower end of the three-foot section of railing was joined to the bracket by two screws, and the upper end was fastened by only one screw to the next wall bracket, to which the next 13-foot length of railing was also fastened. The three-foot section of handrail had been in a loose condition for more than a week before the petitioner fell. The defendant, through its janitor or other agents, having the duty of maintaining the handrail, could have discovered its condition by placing a hand upon the three-foot section to test it for stability; and, in the exercise of ordinary care to render the premises safe, the defendant should have known of this condition by inspection and should have repaired it. The petitioner, while using the stairway and handrails for the purpose for which they had been provided, had neither warning or knowledge, nor appreciation of the risk involved in using the section of handrail at the beginning of the second flight of steps, and that it would become detached when touched for support. He did not see the loose condition of the screw attaching the section of handrail, as the screws and wall brackets on both ends of the railing were underneath it and below the petitioner's line of vision. The handrail was two feet and eight inches above the steps, and the petitioner is six feet and one inch tall. The petitioner was injured and sustained damages as the proximate result of the defendant's alleged acts of negligence.
Johnson, Hatcher & Meyerson, Stanley P. Meyerson, contra.
Marvin G. Russell, Turner Paschall, for plaintiff in error.
DECIDED MAY 7, 1954.
Saturday May 23 03:32 EDT

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