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ROBERTSON v. NAT KAISER INVESTMENT CO. et al.
33151.
Action for damages; from Fulton Superior Court-- Judge Moore. April 13, 1950.
FELTON, J.
The petition, construed most strongly against the plaintiff, does net set forth a cause of action against the landlord for injuries allegedly resulting from defective premises.
Mrs. G. W. Robertson sued jointly Nat Kaiser Investment Company, Liggett Drug Company Inc., and the City of Decatur for injuries allegedly sustained by reason of alleged negligence of the defendants. So much of the petition pertaining to Nat Kaiser Investment Company is substantially: that Nat Kaiser investment Company was owner of a one-story and basement building in the City of Decatur; that Liggett Drug Company leased the major portion of such building from the Investment Company; that "there was on the sidewalk of Ponce de Leon Avenue on which the property in question abutted . . . an iron grating or grill constructed by or at the direction of or for the benefit of the defendant Nat Kaiser Investment Company for the purpose of furnishing light and air to the basement of the building hereinabove described, and which iron grating or grill was used by the defendant, Liggett Drug Company Inc., in connection with its use and occupancy of that portion of said building which it occupied as a tenant"; that "said iron grating or grill . . . extends from the side of the building owned by Nat Kaiser Investment Company about two and one-fourth (2 1/4) feet onto the sidewalk of Ponce de Leon Avenue, and that the side of said iron grating or grill closer to Clairmont Avenue extends between one (1) and one and one-half (1 1/2) inches perpendicularly above the level of the sidewalk of Ponce de Leon Avenue, which constituted a defective, unsafe and dangerous condition to passers-by lawfully using said sidewalk; and said iron grating or grill is joined with the sidewalk by a concrete or cement connection which extends from the top of said grill to the sidewalk"; that on the morning of May 5, 1949, the plaintiff was walking along Ponce de Leon Avenue in Decatur when she tripped on the raised edge of the iron grating or grill at the point where it joined with the sidewalk and was thrown forcibly to the sidewalk, receiving the injuries sued for; that the defective, unsafe and dangerous condition of the iron grating or grill was not known to plaintiff at the time of her injury; that said iron grating or grill had the appearance of being level with the sidewalk to one approaching the grill as did the plaintiff; that such condition was unnoticed by the plaintiff prior to her injury; that the raised condition of the grill, being so joined with the sidewalk, and no warning thereof being given to persons who used the sidewalk, constituted a hazard or trap for pedestrians; that the defective, unsafe and dangerous iron grating or grill had existed as a part of the sidewalk on Ponce de Leon Avenue in the City of Decatur for several years; that Nat Kaiser Investment Company was negligent in erecting and constructing or causing to be erected or constructed in an improper
and negligent manner an iron grating or grill on and as a part of the sidewalk on Ponce de Leon Avenue abutting its property so that the iron grating and grill extended above the level of the sidewalk and so connected with the sidewalk as to constitute a hazard and danger to pedestrians lawfully using the sidewalk; in operating and maintaining or permitting to be operated and maintained the iron grating and grill when the hazard and danger of the grating and grill to pedestrians using the sidewalk was known to Nat Kaiser Investment Company or should have been known by it in the exercise of ordinary care; in allowing the iron grating or grill to extend more than an inch above the level of the surrounding sidewalk and to be so connected with the sidewalk as to constitute a danger and hazard to pedestrians using the sidewalk; in permitting the iron grating or grill to remain in such condition after the unsafe and hazardous condition was known to Nat Kaiser Investment Company or should have been known by it in the exercise of ordinary care; in carelessly and negligently obstructing, hindering and interfering with the lawful use of the public streets and public sidewalks of the City of Decatur by the erection, maintenance, use and operation of a defective, unsafe and dangerous iron grating and grill upon said public street and public sidewalk; in failing to remove, repair, correct and remedy the defective, unsafe and dangerous iron grating or grill located upon a public street and public sidewalk of the City of Decatur when its presence was known to defendant Investment Company, or had existed for such a length of time that it should have been known to such defendant had it been in the exercise of ordinary care; and in failing to warn plaintiff of the defective, unsafe and dangerous condition of said sidewalk caused by the improper construction, maintenance, use and operation of said iron grating or grill as a part of said sidewalk. Nat Kaiser Investment Company filed a general demurrer to the petition, which the court sustained with leave to amend within twenty days, in default of which the action would stand dismissed. Plaintiff excepted pendente lite to such order and refused to amend to meet such order within the twenty days allowed, whereupon the action was dismissed and plaintiff excepted.
Paragraph 6 of the plaintiff's petition alleges that the grating over which she tripped was "constructed by or at the direction of or for the benefit of" the Nat Kaiser Investment Company. Pleadings in the disjunctive and alternative are construed most strongly against the pleader ( Doyal v. Russell, 183 Ga. 518, 189 S. E. 32), and in applying such principle to the above pleading it merely alleges that the grating was constructed for the benefit of the defendant Investment Company. The fact that the plaintiff in her specific allegations of negligence alleges that the defendant Investment Company was negligent in erecting and constructing or causing to be erected or constructed the iron grating does not remove the ambiguity. Under such allegations it could be construed to mean that the tenant or the city constructed the grating for the benefit of the Investment Company without the knowledge, consent, co-operation of or notice to the defendant landlord. In order for a landlord to be liable for injuries sustained, due to a faulty construction of a part of his premises constructed by some other person not acting under his supervision or direction, it must appear that he actually knew or by the exercise of ordinary care could and should have known of the improper construction before the tenancy was created. Dobbs v. Noble, 55 Ga. App. 201, 203 (189 S. E. 694). Unless the landlord retains some control or right of control, or assumes control over the premises, he is ordinarily not under a duty to inspect the condition of such premises while the tenant is in possession, and the landlord is not liable for a defective construction not made by him or under his direction, or for a failure to make repairs, unless and until he is given notice or obtains actual knowledge of the condition, or assumes, by his own initiative to repair or remedy the defect. Dobbs v. Noble, supra. In view of these principles of law, the plaintiff's petition does not state a good cause of action against the landlord, Nat Kaiser Investment Company. Construing the allegations of the petition most strongly against the plaintiff, it alleges construction of the defective grating by someone other than the defendant landlord after the term of tenancy began as there is no allegation as to when the tenancy of Liggett Drug Company Inc. began. Nor can it be construed to mean that the landlord knew of the defective construction by another party after the creation of the tenancy as the plaintiff alleges that the defendant landlord knew or should have known in the exercise of ordinary care, and such allegation only alleges implied notice where actual notice or knowledge is necessary to impose liability on the landlord.
The court did not err in sustaining the general demurrer to the petition and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.
B. Hugh Burgess, James K. Rankin, J. Winston Huff, Powell, Goldstein, Frazer & Murphy, for defendants.
DECIDED SEPTEMBER 14, 1950. REHEARING DENIED OCTOBER 6, 1950.
Saturday May 23 06:14 EDT


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