Carley, Judge.
At the times relevant to this appeal, appellant-plaintiff resided in an apartment owned by appellee-defendant James Crownover, who is the president and sole shareholder of appellee-defendant Crownover Electrical and Mechanical, Inc. The apartment in question contained two gas space heaters, one in the living room and one in the bedroom. Along its top, the bedroom heater was designed to accommodate protective radiants, which served to prevent flammable matter from coming into direct contact with the flames within the ignited heater. It is undisputed, however, that, from the time the apartment was first leased, the bedroom heater lacked the protective radiants.
On January 19, 1984, some three years after the commencement of the lease, appellant turned on the bedroom heater. She then stood close to the ignited heater in order to warm herself. The open flames from the heater ignited appellant’s skirt and she was severely burned. Seeking to recover for her personal injuries, appellant brought this tort suit against appellees. Appellees answered, denying the material allegations of appellant’s complaint. Appellees subsequently moved for summary judgment. The trial court granted appellees’ motion. Appellant appeals from the grant of summary judgment in favor of appellees.
1. Appellant enumerates the grant of appellees’ motion as erroneous on the ground that genuine issues of material fact remain with regard to appellees’ negligent failure to keep the leased premises in proper repair.
To recover in tort, appellant will be required to prove, as a threshold matter, that appellees owed her a duty which they breached. Appellant contends that appellees, as her landlords, owed her a duty to keep the leased premises in repair and that it is this duty which appellees breached. See OCGA §§ 44-7-13; 44-7-14. She urges that appellees have failed to show that they have not breached this duty to repair. It is clear, however, the landlord’s statutory duty to repair does not extend to patent defects in the premises which were in existence at the time of the commencement of the lease. It is also clear that the defect in this case was patent. “ ‘A landlord is not liable for injuries to his tenant or to the members of the latter’s family for injuries resulting from a patent defect existing at the time of the rental agreement as to which both the landlord and the tenant had equal knowledge.’ [Cits.] ‘A latent defect is one which could not have been discovered by inspection. A patent defect is a defect which could be discovered by inspection.’ [Cit.] [Appellant’s complaint alleges] that the absence of a protective device on the heater was a dangerous condition. It does not appear in what way the heater was any [634]*634more dangerous than would be an open fireplace, for example. Even if this condition be considered a defect, however, it was a patent one, which reasonably could have been discovered by [appellant] at the commencement of the lease, which [was some three years prior to her injury].” (Emphasis in original.) Hyde v. Bryant, 114 Ga. App. 535, 536 (151 SE2d 925) (1966). See also Bixby v. Sinclair Refining Co., 74 Ga. App. 626 (40 SE2d 677) (1946); Godard v. Peavy, 32 Ga. App. 121 (1) (122 SE 634) (1924); McGee v. Hardacre, 27 Ga. App. 106 (1) (107 SE 563) (1921). Even if this court were to conclude that legislation would not be required to accomplish a change in the “patent defect” rule, we would nevertheless be powerless to effectuate that change judicially. The “patent defect” rule has been endorsed by the Supreme Court. See Rothstein v. Golf Club Co., 214 Ga. 187 (104 SE2d 83) (1958), aff’g 97 Ga. App. 128 (102 SE2d 654) (1958); Aikin v. Perry, 119 Ga. 263 (46 SE 93) (1903). Included among the legal principles which have not changed since the Supreme Court endorsed the “patent defect” rule is that of stare decisis and, among those constitutional principles which still apply today is that this court is bound by the decisions of the Supreme Court. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI.
That, subsequent to the commencement of the lease, appellant may have given appellees notice of the condition of the heater and have requested that it be repaired will not take the case outside the “patent defect” rule. To remove the present case from the ambit of that rule would require evidence that, in response to appellant’s subsequent requests for repairs to the heater, appellees had actually agreed to make those repairs. “In the absence of an express agreement to do so, a landlord is under no duty to repair a patent defect in the rented premises where its existence was known to the tenant at the time the rent contract was entered into; and subsequent notice by a tenant of the existence of such a defect would not place upon the landlord any duty of inspection or repair. [Cits.]” (Emphasis supplied.) Mitchell v. Clark, 39 Ga. App. 714 (1) (148 SE 420) (1929). There is no evidence of record which would show that appellees did agree to any request by appellant to make repairs to the heater. Compare Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984); Plant v. Lowman, 134 Ga. App. 752 (216 SE2d 631) (1975); Warner v. Arnold, 133 Ga. App. 174 (210 SE2d 350) (1974). However, the burden was upon appellees, as movants for summary judgment, to produce evidence that they had not agreed to any request by appellant to repair the heater. “‘“[T]he burden to show that there is no genuine issue of material facts rests on the party moving for summary judgment whether he or his opponent would at trial have the burden of proof on the issue concerned; and rests on him whether he is by it required to show the existence or nonexis[635]*635tence of facts.” [Cit.]’ [Cit.]” Kroger Co. v. Cobb, 125 Ga. App. 310, 311-312 (3) (187 SE2d 316) (1972). There is simply no evidence either that appellees had or that they had not agreed to a request to repair the heater. Therefore, a genuine issue of material fact would remain as to whether appellees had assumed, and therefore owed, a duty to appellant to repair the patently defective heater. Compare Richardson v. Palmour Court Apts., supra; Plant v. Lowman, supra.
2. That the evidence of record does not eliminate, as a matter of law, the existence of a duty owed by appellees to appellant to repair the heater does not, however, necessarily mean that the trial court erred in granting summary judgment in favor of appellees. Appellees urge that, under the evidence of record, appellant’s own actions would serve to bar her recovery, as a matter of law, regardless of their breach of any duty to repair the heater which they may otherwise have owed to her.
“Although the tenant may not have waived performance of the landlord’s duty to repair, or any right of action growing out of an injury caused by failure to repair, and even though ample notice of the defect may have been given by the tenant to the landlord, it is nevertheless the rule that neither the tenant nor any person lawfully upon the premises by his express or implied invitation can recover for injuries caused by such defect, where the tenant or such other person could have avoided the consequences of the landlord’s negligence in failing to repair, by the exercise of ordinary care on his own part. [Cits.]” Williams v. Jones, 26 Ga. App. 558-559 (2) (106 SE 616) (1921).
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Carley, Judge.
At the times relevant to this appeal, appellant-plaintiff resided in an apartment owned by appellee-defendant James Crownover, who is the president and sole shareholder of appellee-defendant Crownover Electrical and Mechanical, Inc. The apartment in question contained two gas space heaters, one in the living room and one in the bedroom. Along its top, the bedroom heater was designed to accommodate protective radiants, which served to prevent flammable matter from coming into direct contact with the flames within the ignited heater. It is undisputed, however, that, from the time the apartment was first leased, the bedroom heater lacked the protective radiants.
On January 19, 1984, some three years after the commencement of the lease, appellant turned on the bedroom heater. She then stood close to the ignited heater in order to warm herself. The open flames from the heater ignited appellant’s skirt and she was severely burned. Seeking to recover for her personal injuries, appellant brought this tort suit against appellees. Appellees answered, denying the material allegations of appellant’s complaint. Appellees subsequently moved for summary judgment. The trial court granted appellees’ motion. Appellant appeals from the grant of summary judgment in favor of appellees.
1. Appellant enumerates the grant of appellees’ motion as erroneous on the ground that genuine issues of material fact remain with regard to appellees’ negligent failure to keep the leased premises in proper repair.
To recover in tort, appellant will be required to prove, as a threshold matter, that appellees owed her a duty which they breached. Appellant contends that appellees, as her landlords, owed her a duty to keep the leased premises in repair and that it is this duty which appellees breached. See OCGA §§ 44-7-13; 44-7-14. She urges that appellees have failed to show that they have not breached this duty to repair. It is clear, however, the landlord’s statutory duty to repair does not extend to patent defects in the premises which were in existence at the time of the commencement of the lease. It is also clear that the defect in this case was patent. “ ‘A landlord is not liable for injuries to his tenant or to the members of the latter’s family for injuries resulting from a patent defect existing at the time of the rental agreement as to which both the landlord and the tenant had equal knowledge.’ [Cits.] ‘A latent defect is one which could not have been discovered by inspection. A patent defect is a defect which could be discovered by inspection.’ [Cit.] [Appellant’s complaint alleges] that the absence of a protective device on the heater was a dangerous condition. It does not appear in what way the heater was any [634]*634more dangerous than would be an open fireplace, for example. Even if this condition be considered a defect, however, it was a patent one, which reasonably could have been discovered by [appellant] at the commencement of the lease, which [was some three years prior to her injury].” (Emphasis in original.) Hyde v. Bryant, 114 Ga. App. 535, 536 (151 SE2d 925) (1966). See also Bixby v. Sinclair Refining Co., 74 Ga. App. 626 (40 SE2d 677) (1946); Godard v. Peavy, 32 Ga. App. 121 (1) (122 SE 634) (1924); McGee v. Hardacre, 27 Ga. App. 106 (1) (107 SE 563) (1921). Even if this court were to conclude that legislation would not be required to accomplish a change in the “patent defect” rule, we would nevertheless be powerless to effectuate that change judicially. The “patent defect” rule has been endorsed by the Supreme Court. See Rothstein v. Golf Club Co., 214 Ga. 187 (104 SE2d 83) (1958), aff’g 97 Ga. App. 128 (102 SE2d 654) (1958); Aikin v. Perry, 119 Ga. 263 (46 SE 93) (1903). Included among the legal principles which have not changed since the Supreme Court endorsed the “patent defect” rule is that of stare decisis and, among those constitutional principles which still apply today is that this court is bound by the decisions of the Supreme Court. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI.
That, subsequent to the commencement of the lease, appellant may have given appellees notice of the condition of the heater and have requested that it be repaired will not take the case outside the “patent defect” rule. To remove the present case from the ambit of that rule would require evidence that, in response to appellant’s subsequent requests for repairs to the heater, appellees had actually agreed to make those repairs. “In the absence of an express agreement to do so, a landlord is under no duty to repair a patent defect in the rented premises where its existence was known to the tenant at the time the rent contract was entered into; and subsequent notice by a tenant of the existence of such a defect would not place upon the landlord any duty of inspection or repair. [Cits.]” (Emphasis supplied.) Mitchell v. Clark, 39 Ga. App. 714 (1) (148 SE 420) (1929). There is no evidence of record which would show that appellees did agree to any request by appellant to make repairs to the heater. Compare Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984); Plant v. Lowman, 134 Ga. App. 752 (216 SE2d 631) (1975); Warner v. Arnold, 133 Ga. App. 174 (210 SE2d 350) (1974). However, the burden was upon appellees, as movants for summary judgment, to produce evidence that they had not agreed to any request by appellant to repair the heater. “‘“[T]he burden to show that there is no genuine issue of material facts rests on the party moving for summary judgment whether he or his opponent would at trial have the burden of proof on the issue concerned; and rests on him whether he is by it required to show the existence or nonexis[635]*635tence of facts.” [Cit.]’ [Cit.]” Kroger Co. v. Cobb, 125 Ga. App. 310, 311-312 (3) (187 SE2d 316) (1972). There is simply no evidence either that appellees had or that they had not agreed to a request to repair the heater. Therefore, a genuine issue of material fact would remain as to whether appellees had assumed, and therefore owed, a duty to appellant to repair the patently defective heater. Compare Richardson v. Palmour Court Apts., supra; Plant v. Lowman, supra.
2. That the evidence of record does not eliminate, as a matter of law, the existence of a duty owed by appellees to appellant to repair the heater does not, however, necessarily mean that the trial court erred in granting summary judgment in favor of appellees. Appellees urge that, under the evidence of record, appellant’s own actions would serve to bar her recovery, as a matter of law, regardless of their breach of any duty to repair the heater which they may otherwise have owed to her.
“Although the tenant may not have waived performance of the landlord’s duty to repair, or any right of action growing out of an injury caused by failure to repair, and even though ample notice of the defect may have been given by the tenant to the landlord, it is nevertheless the rule that neither the tenant nor any person lawfully upon the premises by his express or implied invitation can recover for injuries caused by such defect, where the tenant or such other person could have avoided the consequences of the landlord’s negligence in failing to repair, by the exercise of ordinary care on his own part. [Cits.]” Williams v. Jones, 26 Ga. App. 558-559 (2) (106 SE 616) (1921). In the present case, the undisputed evidence of record is that appellant continued to use the bedroom heater with full knowledge of its defective condition. “A landlord is not liable for injuries to a tenant arising from a patent defect of which the tenant knew, or had means of knowing equal to those of the landlord. [Cit.] ‘When rented premises become defective and unsafe it is the duty of the tenant to refrain from using that part of the premises the use of which would be attended with danger. It is his duty to exercise ordinary care for his own safety, and where he is injured as a result of his failure to exercise such care, he can not recover damages from his landlord, even though the latter may have been negligent in failing to make repairs.’ [Cits.]” Hearn v. Barden, 115 Ga. App. 708, 709-710 (155 SE2d 649) (1967).
By appellant’s own testimony, she was equally aware of the defective heater and of the danger inherent in using it. In her affidavit, appellant stated that, when the bedroom heater was turned on, “open flames came out of the top of the metal box-like base.” “It is the duty of the tenant ‘to abstain from, using any part of the premises the use of which would be attended with danger,’ and such continued use of that portion of the knowingly defective premises which ordinarily [636]*636prudence would suggest would be attended with danger will amount to contributory negligence on the part of the tenant, such as would preclude a recovery for the injury which must have been reasonably anticipated. [Cits.]” Kleinberg v. Lyons, 39 Ga. App. 774, 775 (3) (148 SE 535) (1929).
Appellant contends that under the circumstances of this case she is not, as a matter of law, precluded from a recovery because, notwithstanding her actual knowledge of the defective and dangerous condition of the heater, her only alternative to subjecting herself to that condition was to freeze. See generally Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977). However, the undisputed evidence of record is that there was another space heater in the living room, the use of which presented, if not an equally pleasant alternative to the one located in the bedroom, at least a less dangerous one. Thus, the evidence shows that appellant’s act of subjecting herself to the open flames of the bedroom heater “was not one of necessity, thereby distinguishing Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985); Hull v. Mass. Mut. Life Ins. Co. [supra.] and Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (210 SE2d 337) (1974).” Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13) (1987). See also Smith v. Collins, 182 Ga. App. 564 (356 SE2d 530) (1987). Accordingly, appellant’s own actions do bar her, as a matter of law, from a recovery against appellees for their breach, if any, of a duty to repair.
Because of stare decisis and adherence to the Constitution of this State, we are again constrained to note that, even if it were otherwise possible for the judiciary to effect a change in this rule of tenant’s contributory negligence and assumption of the risk, it would not be possible for this court to make that change. See Donehoe v. Crane, 141 Ga. 224 (80 SE 712) (1913); Veal v. Hanlon, 123 Ga. 642 (51 SE 579) (1905). It follows that the trial court correctly granted summary judgment in favor of appellees as to appellant’s claim for the negligent failure to repair the bedroom heater.
3. The grant of summary judgment in favor of appellees as to appellant’s negligence per se claim is enumerated as error. However, in Division 2 of this opinion we have held that, notwithstanding any negligence on the part of appellees, the evidence of record demands a finding that, as a matter of law, appellant’s own actions are a bar to her recovery. This result would not change simply because the basis for appellant’s negligence claim is appellees’ violation of a duty which is imposed by statute rather than a duty which is imposed by common law. Accordingly, the trial court correctly granted summary judgment as to appellant’s negligence per se claim.
4. As to appellant’s claim for the breach of an implied warranty of suitability of the premises as a dwelling place, the trial court also [637]*637granted summary judgment in favor of appellees. This ruling is enumerated as error.
“At common law there was no implied covenant on the part of the landlord that the premises were suitable for the purpose for which they were rented, or for the particular use for which they were intended by the tenant. [Cits.] The only modification of this rule in Georgia is as to the duty of the landlord to ‘keep the premises in repair.’ [OCGA § 44-7-13]. And in the absence of an agreement so to do, the landlord is not bound to repair patent defects, of which the defendant had knowledge at the time of entering the rent contract. [Cit.] There have been several decisions by the courts of this State which, by the language used, would seem to hold that it is the duty of the landlord to make the premises suitable for the purpose for which they were rented. . . . [Cits.] But in each of these cases the court was dealing solely with the duty of the landlord to make needed repairs, for in none of them was any question involved as to an implied covenant by the landlord that, irrespective of the state of repair, the premises were suitable for the purpose for which they were leased, or for the particular uses which the tenant intended to make of them. ... We think there is nothing in any of the decisions when studied in light of the facts upon which they are predicated, which could mean that the common-law rule has been changed in this State, except as provided in [OCGA § 44-7-13], having reference to repairs. We therefore hold that the implied covenant of the landlord does not, regardless of the condition of repair, include ‘an undertaking on his part that the premises leased are suitable or fitted for the particular use for which they are intended by the lessee.’ [Cits.]” Cox v. Walter M. Lowney Co., 35 Ga. App. 51, 54-55 (132 SE 257) (1926). Accordingly, insofar as appellant predicates her right to recover upon appellees’ alleged breach of a warranty of suitability other than the landlord’s duty to repair the premises, that reliance is misplaced. A landlord’s implied warranty of suitability extends only so far as and no further than his statutory duty of repair. Warner v. Arnold, supra; Point Apts. v. Bryant, 99 Ga. App. 110, 111 (1) (107 SE2d 684) (1959); Cox v. Walter M. Lowney Co., supra. As discussed previously, appellant cannot recover under the theory that appellees breached their statutory duty to repair. Accordingly, the trial court correctly granted summary judgment as to appellant’s claim for breach of an implied warranty of suitability of the premises.
5. As the result of the foregoing, it necessarily follows that the trial court correctly granted summary judgment in favor of appellees as to appellant’s claim seeking to recover punitive damages based upon allegations of gross negligence.
Judgment affirmed.
Birdsong, C. J., and Banke, P. J., concur. Sognier and Beasley, JJ., concur in judgment only. Been, P. J., Me-
[638]*638
Murray, P. J., Pope and Benham, JJ., dissent.