Watts v. Jaffs

455 S.E.2d 328, 216 Ga. App. 565

• Court: Court of Appeals of Georgia
• Decided: May 26, 1995
• Docket: A94A2084
• Status: Published

Opinions

Johnson, Judge.

Debbie Jaffs and her husband brought this action against William Watts seeking to recover for injuries sustained when Jaffs fell down the steps of an apartment building owned by Watts. Jaffs was ascending the stairs of the building to visit a tenant when she lost her footing. She reached for a handrail to avoid falling, but none was present and she fell to the bottom of the stairs. The Jaffs complain that Watts was negligent in failing to provide a handrail and in failing to post a sign warning of the danger. Watts filed a motion for summary judgment, which the trial court denied. We granted Watts’ application for interlocutory appeal.

Watts’ motion for summary judgment was based on the premise that the absence of a handrail is a patent condition and that because Jaffs had equal knowledge of the condition, she is precluded from recovery. We disagree and affirm the order of the trial court. Watts is correct that there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care. See Smith v. Housing Auth. of the City of Athens, 212 Ga. App. 503, 506 (441 SE2d 847) (1994). However, the fact that a defect is obvious does not necessarily bar recovery when the defect is in violation of a duty created by a statute or administrative regulation. Bastien v. Metropolitan Park Lake Assoc., 209 Ga. App. 881, 882 (434 SE2d 736) (1993); Commerce Properties v. Linthicum, 209 Ga. App. (2) (434 SE2d 769) (1993). The Official Code of Georgia provides that a landlord must keep the premises in repair and is responsible for damages arising from the failure to do so. OCGA §§ 44-7-13; 44-7-14. The Code also specifically provides that a landlord cannot avoid his duty to repair created by housing codes. OCGA § 44-7-2 (b) (3); Thompson v. Crownover, 259 Ga. 126, 129 (3) (381 SE2d 283) (1989). In Bastien, supra, we reversed the grant of summary judgment to the landlord where a tenant attributed her injuries to the absence of a handrail and a building code required that a handrail be provided.¹ In this case, two years prior to the accident, the City of Savannah adopted the “One and Two Family Dwelling Code,” which requires that handrails be provided on at least one side of stairways having three or more steps. Savannah City Code, Art. G, Sec. 8-1131; R-214.1. Watts does not dispute the contention that he is bound by the Savannah City Code. Nor does he deny that the stairway in his two-unit apartment building has more than three steps and at the time of the accident had no handrails in place. Watts also defends on the basis that a handrail had previously been in place, but that he removed it a month before the accident so it could be repaired. As stated above, a landlord has a duty to keep the premises in repair. OCGA § 44-7-13. A jury must decide whether Watts failed to exercise reasonable care with regard to the handrail and whether the condition constituted a violation of the dwelling code. See Thompson, supra at 129 (4), (5). Likewise, issues of Jaffs’ own negligence and the proximate cause of her fall are for the jury to resolve. See Spencer v. Little Brownie Properties, 203 Ga. App. 324, 325 (416 SE2d 851) (1992). As genuine issues of material fact remain, the trial court did not err in denying Watts’ motion for summary judgment.

Watts’ reliance upon cases not involving residential housing to support his position that summary judgment should have been granted is misplaced. In recent years our courts have come to recognize a state policy of prevention of unsafe residential housing, holding landlords liable in tort for failure to correct conditions that exist in violation of the duties created by the housing codes and other legislation. See Thompson, supra. Our holding here is consistent with that policy.

Judgment affirmed.

McMurray, P. J., Pope, P. J., Blackburn, Smith and Ruffin, JJ., concur. Beasley, C. J., concurs specially. Birdsong, P. J., and Andrews, J., dissent.

1 The fact that Jaffs was a guest rather than a tenant is immaterial, as a person on the premises by the express or implied invitation of the tenant stands in the tenant’s shoes and has the same right of recovery for injuries arising from the landlord’s failure to keep the premises in repair as does the tenant. See Hohnerlein v. Thomas, 186 Ga. App. 282 (367 SE2d 95) (1988); Paul v. Sharpe, 181 Ga. App. 443, 444 (1) (352 SE2d 626) (1987).