Johnson v. Loy., 231 Ga. App. 431, 499 S.E.2d 140 (1998)
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Judgment affirmed. McMurray, P. J., and Smith, J., concur.
Summary
Judgment affirmed. McMurray, P. J., and Smith, J., concur.
Text
Post & Pond, Bruce Berger, for appellant.
Between 5:30 and 6:00 p.m. on the evening of August 18, 1994, Suzette Johnson left the retail Color Tile store where she had gone as a customer. She crossed the raised sidewalk and walked onto a short concrete ramp which provided a sloped access to the asphalt parking lot one step below. She stepped on what her attorney described as a "gouge," lost her balance, fell and was injured.
Her expert referred to the condition as a "groove" which constituted "an inordinately severe and hazardous irregular depression on the surface of the ramp." By affidavit he testified that it was caused by "weathering coupled with wear and tear of ramp usage" and that it had existed "for several years prior to my inspection in December 1997," four months after Johnson's fall.
Loy, a resident of a distant state since the 1920s, was the owner of the property on the date of the incident. She and her husband bought the property in 1977. She had no knowledge of the ramp or when it was constructed, and she knew nothing of its condition.
The proprietor of the Color Tile business had secured a 20-year lease with the Loys' predecessor for the whole three-store strip, which lease was to expire in June 1995. It provided for construction of the building by the then-owner within a given time.
Lessee agreed, at its expense, to maintain and keep the premises in good condition and repair and in clean and wholesome condition, including replacement of the building and all parts thereof. Specific attention was given to "all sidewalks and areas adjacent thereto," as well as all improvements "in the area thereof," which lessee agreed to keep "safe and secure" and in compliance with all local government requirements. Damage to the improvements was to be repaired by the lessee at its expense.
A covenant of "quiet and peaceable enjoyment" passed possession and the right of possession to Color Tile, although the lessor retained the right to enter the premises "at all reasonable times during business hours for the purpose of inspecting the same." The lessor also retained the right to do any of the things lessee was obligated but failed to do, upon notice, chargeable to lessee, but lessor was not obligated to act.
The lease was subordinate to Loy's mortgage, and in October 1993 the mortgagee initiated an inspection of the property to protect its investment. A copy of the inspection report was sent to the borrower, in this case Loy. The inspection report showed the exterior as well as the grounds to be in "good" as opposed to "excellent" or "poor" condition; the interior was classed as "poor." Repairs "needed to protect [the] property" included "repair asphalt where alligatoring has occurred; restripe faded parking stripe." There is only one "general comment": "This property's condition shows signs of neglect and must receive better care."
Suzette Johnson sued Helen Loy for negligence in causing her injuries. After discovery and a hearing on defendant's motion for summary judgment, the trial court granted judgment to Loy, which prompted the appeal.
The trial court ruled as follows:
A. Loy had no duty under the lease to maintain the premises and make repairs because that duty was passed to the tenant along with possession and the right of possession. This included the duty to maintain and repair which the lender required of the borrower in the deed to secure debt.
B. The lease provision reserving to Loy the right to inspect the property was not for the purpose of making repairs, which was the duty of the tenant, but for the purpose of assuring tenant compliance with lease terms. This provision imposed no duty to repair on the landlord.
C. The inspection report did not put Loy on notice that the ramp was defective or needed repair. The ramp is not mentioned in the report, and the reference to alligatoring was to the parking lot asphalt, not the ramp.
D. If Johnson's fall and injuries were due to someone's negligence other than her own, it was tenant Color Tile's, and Colquitt v. Rowland,
Distilled to their essence, Johnson's contentions on appeal are five-fold:
A. A landlord cannot delegate the statutory duty towards third persons to repair defects in premises, which duty is contained in OCGA
B. In addition to the non-delegable statutory duty, the deed to secure debt required the borrower to maintain and repair, and that obligation inured to the benefit of third parties injured on the property which secured the debt.
C. The lease provision giving the landlord the right to inspect was not only for the purpose of assuring compliance but also for the purpose of discovering the need for repairs and making them.
D. The inspection report notified Loy of the alligatoring problem and the general comment that "signs of neglect" indicated the need for "better care," which gave rise to a duty to inspect and so to discover and repair any patent or latent defects such as the depression in the ramp.
E. The duty on Loy created by the deed to secure debt, coupled with the right retained by her under the lease to make repairs if the tenant did not, obligated her after notice given by the inspection report to repair the ramp; consequently, her failure to do so would allow a jury to find her liable to the tenant's invitee for injuries due to the defective ramp.
1. In reviewing a judgment based on the grant of a motion for summary judgment pursuant to OCGA
In this process the evidence is construed in the respondent's favor, and the respondent is given the benefit of all doubts and all reasonable inferences, because it is the burden of the one who seeks judgment without trial to establish the basis for the court's ruling on the first question. Id. But "a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party's case." Lau's Corp. v. Haskins,
Thus, plaintiff Johnson must prove, among other things (proximate cause and damages), that defendant Loy owed a duty to her and that Loy failed to conform to the standard of care required. Sutter v. Hutchings,
2. The law provides: "Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care. In keeping the premises and approaches safe." OCGA
Nevertheless, as to an owner-landlord, the law further provides: "Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair." OCGA
By the terms of the lease Loy fully relinquished possession and the right of possession and gave an express covenant of quiet enjoyment to Color Tile; in fact, the lease expressly passed to the tenant in control of the premises the duty to maintain it and make necessary repairs. The commercial tenant who has exclusive use is in the best position to preserve the property by safeguarding its use, undertaking preventive measures, detecting disrepair or hazards, and correcting them.
When such a tenant agrees by contract with the landlord to be responsible for maintenance and repair, thereby undertaking the legal duty imposed by OCGA
It is true, as Johnson points out, that the lease retained in Loy the right to enter the premises "at all reasonable times during business hours for the purpose of inspecting the same," as well as the right to do at Color Tile's expense anything Color Tile failed to do as was required of it by the terms of the lease. But these provisions, whether taken separately or in tandem, established no correlative duty to repair. As stated in Godwin, supra at 36 (2), "retention of . . . the right to enter the leased premises . . . during business hours for landlord-related purposes does not evidence such dominion and control of the premises so as to vitiate [landlord's] limited liability under [OCGA
Loy's limited contractual right to inspect and right to repair at tenant's expense did not carry with them a duty to third parties such as invitee Johnson to safeguard her from harm from a weather-and-use-worn ramp about which Loy did not know. The duty to repair was placed, in no uncertain terms by other provisions of the lease, squarely on the shoulders of the tenant, Color Tile.
3. Johnson contends that a paragraph in Loy's deed to secure debt gave rise to a duty to repair which inured to the benefit of third-party invitees such as herself. Under the provision entitled "Care of Premises," Loy promised the lender as follows:
"The Borrower will keep the improvements now or hereafter erected on the premises in good condition and repair, will not commit or suffer any waste, will perform all such acts with respect to the premises as may be reasonably necessary in the opinion of the Lender under the circumstances of the character and use of the premises, will keep all improvements free of termites, dry rot and all other destructive pests, will keep all plants and lawns in good condition and will not do or suffer to be done anything which will increase the risk of fire or other hazard to the premises or any part thereof."
As shown by its wording, the purpose of imposing on Loy, as the borrower against this property, the duty created by this portion of the deed was to protect the investment of the lender by preserving the property which secured it. It was not, nor did it include, a duty to third persons visiting the premises. There is no evidence that the lender objected to the imposition of this duty on the borrower's tenant. The lender would have known there was a tenant in possession, as the record contains evidence of at least one inspection undertaken at its request. Of course, the lease provision did not absolve landlord Loy of her obligation, as borrower, to her lender to keep the property in good repair and so forth.
There is one instance, where the owner who has parted with possession and right of possession and the tenant has undertaken the duty to repair, in which the owner may be liable to third parties for injury. That is where the owner has notice of a dangerous or hazardous condition on the premises. The law holds the owner responsible for defects "of which he knows or in the exercise of reasonable diligence ought to know." (Citations and punctuation omitted.) Birdsey v. Greene,
In the instant case, alligatoring of the parking lot did not relate to the depression in the adjacent ramp. It was not associated with it in any way, and the problem on the ramp was not "alligatoring," nor did the general comment of the inspector, which merely called for better care in the future because of the general condition which the property had acquired through use. In this regard, it was only the interior of the building which rated a "poor" rating by the inspector, whereas the exterior and grounds were rated "good." Although the only specific repairs needed were to the exterior, the ramp was not mentioned.
A jury could not, as a matter of law, find in this report notice to owner Loy of a depression in the ramp. Plaintiff Johnson has presented no other evidence of notice. Thus it is not a case of a landlord who in the exercise of reasonable diligence should have known of the defect.
As in Stephens v. Ernie's Steakhouse &c.,
Michael A. Kessler, for appellee.
Notes:
1. Johnson initially complained of negligent construction by Loy but abandoned that theory of recovery after it became clear that the premises had been constructed before Loy became owner and there was no proof that the ramp was constructed during Loy's ownership. An abbreviated history of the landlord's duty under the law is recited in Thompson v. Crownover,
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This document cites
- Supreme Court of Georgia - COLQUITT v. ROWLAND., 265 Ga. 905, 463 S.E.2.d 491 (1995)
- Supreme Court of Georgia - LAU\'S CORPORATION, INC. v. HASKINS et al., 261 Ga. 491, 405 S.E.2.d 474 (1991)
- Supreme Court of Georgia - THOMPSON v. CROWNOVER et al., 259 Ga. 126, 381 S.E.2.d 283
- Supreme Court of Georgia - KRAUSE v. SAVAGE., 258 Ga. 335, 368 S.E.2.d 504
- Supreme Court of Georgia - TURNER et al. v. HUTCHINGS et al., 254 Ga. 194, 327 S.E.2.d 716 (1985)
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