Kreiss v. Allatoona Landing, Inc. , 108 Ga. App. 427 ( 1963 )

Russell, Judge.

“Where the 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 occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Code § 105-401. This Code section may have application in a landlord-tenant situation where the landlord does not fully part with the right of possession. Augusta-Aiken R. &c. Corp. v. Hafer, 21 Ga. App. 246 (1) (94 SE 252). The plaintiff was an invitee on facilities provided by the defendant as a means of egress and ingress between the shore and the rented dock slips where boats were moored. From the pleadings, depositions, and affidavit, it appears that the plaintiff was injured because in the course of its repairs and renovations of these docks the defendant lined up a main floating dock with an auxiliary catwalk 42 inches wide, leaving a 4-inch space between the two, at a point where there had previously been an apron rounding out the angle of two intersecting dock areas, and had also disconnected the lights from this portion of the dock so that persons walking on the area at night would not be on notice, so far as appears from the facts stated here, of any difference between the structures. One maintaining a defective footway, walkway, or excavation on the premises through which another falls may be held guilty of actionable negligence unless it appears for other reasons that the plaintiff cannot recover. Southern R. Co. v. Hoioard, 9 Ga. App. 264 (70 SE 1124); Central of Ga. R. Co. v. Ledbetter, 46 Ga. App. 500 (168 SE 81); Gray v. Watson, 54 Ga. App. 885 (189 SE 616); Atlanta Life Ins. Co. v. Rogers, 57 Ga. App. 785 (196 SE 239). The facts set out present a jury question as to negligence on the part of the defendant in failing to close or warn patrons against the hole between the dock section and catwalk at the point where the apron or flange between the intersecting dock sections had previously been located.

It is undisputed that the plaintiff did not know of the defect in the dock caused by the defendant’s negligence, and it is undisputed that a person walking in the darkness as she was might, although in the exercise of ordinary care for her own safety, have failed to notice it unless the mere fact of walking in an unlighted area is in itself such lack of care as to preclude recovery. The defendant earnestly insists that this is the case, citing Srochi v. Hightower, 57 Ga. App. 322 (195 SE 323); Hendricks v. Jones, 28 Ga. App. 335 (111 SE 81); Dacus v. Dickinson Trust Co., 65 Ga. App. 872 (16 SE2d 786); Mattox v. Atlanta Enterprises, 91 Ga. App. 847 (87 SE2d 432), and Hardigree v. Housing Authority of the City of Atlanta, 107 Ga. App. 406 (130 SE2d 275). These cases make an imposing argument in favor of a legal proposition which, carried to its ultimate conclusion, would result in an invariable holding that a defendant may be as negligent as he pleases regarding premises which he controls and, in the absence of some contractual obligation to the contrary, then insulate himself against the consequences of such negligence by also negligently failing to light the area, relying upon courts to hold that whatever happens to one injured in an unlighted area must be held to result proximately from the act of the injured party in entering it. We doubt that such a conclusion would be either just or tenable. Whatever may be the rule as to stairs and hallways, a dock area which is necessary to be traversed by persons who spend the evening visiting friends on shore facilities related to the defendant’s enterprises, and who must necessarily return to the boat to sleep, as the defendant knew this plaintiff and others would have to do, which area is ordinarily lighted by a permanent electric installation, may be so dangerous when unlit that the failure to provide light may be negligence in and of itself. Further, the lights which were removed here were the very ones surrounding the reconstruction of the docks, that is, they were the only illumination of areas made dangerous because of recent changes not in existence at the time the plaintiff’s husband rented the dock slip. Failure to illuminate may not in and of itself be sufficient to charge the defendant with liability, but failure to illuminate in connection with defective or dangerous construction falls in a different category, and may be pleaded and proved both on the question of the defendant’s overall negligence and of the plaintiff’s duty to exercise ordinary care for her own safety. Pilgreen v. Hanson, 89 Ga. App. 703 (81 SE2d 18); Sylvan Heights Apts. v. Tallon, 100 Ga. App. 192 (110 SE2d 419).

This court cannot accept the premise that every person injured while walking in darkness regardless of the attendant circumstances has failed to exercise ordinary care for his own safety and thus is precluded by law from recovering for his injuries. In White v. Thacker, 89 Ga. App. 656, 661 (80 SE2d 699) it was held: “While mere failure to light a hallway which proximately results in injury is not negligence in the absence of special contract or statutory provisions, failure to light an area which the landlord has negligently left in bad repair may be considered on the question of whether, as charged in the petition, the landlord was negligent in failing to give warning of a known defect.” Where such negligence exists, and as a result thereof the owner has failed to give warning of the danger to his invitee, it follows that such fact may be considered in submitting to the jury the question of whether the plaintiff has exercised ordinary care for her own safety. “It is a generally recognized rule at common law that a landlord does not owe any obligation or duty to provide stairways and hallways' used in common by tenants with artificial lights unless there is some unusual and dangerous condition existing which necessitates special warning to his tenants.” Miller-Dupont, Inc. v. Service, 120 Colo. 131 (208 P2d 87) and authorities there listed; also, Landes v. Barone, 127 NYS2d 112, aff. 307 NY 867 (122 NE2d 750); Hirschler v. Briarcliff Mgt. Corp., 89 NYS2d 744, aff. 300 NY 680 (91 NE2d 331); May v. Hexter, 226 SW2d 383. Another rule stated in 25 ALR2d, Anno., 496, 505, is that applicable to cases where personal injury results to one using an unlighted portion of the property under sitúa,tions where the landlord assumed voluntarily the obligation of lighting, the obligation existed at the -time of the creation of the tenancy, and no notice of discontinuance was given. See, in addition to cases there listed, Ballou v. Jewett City Sav. Bk., 128 Conn. 527 (24 A2d 260); McDonald v. Yogel, 329 Mass. 492 (109 NE2d 136); Triggiani v. Olive Oil Soap Co., 12 N.J. Super. 227 (79 A2d 471). Neither this court nor the Supreme Court has heretofore dealt specifically with the exception to the common law rule of liability under these circumstances, and we do not believe it was ever intended to be held that a landlord, after furnishing lights over an area necessary to be traversed in order to reach a leased space, where common knowledge suggests that the area in the absence of lights would make the dock or passage so inherently hazardous that tenants would be hesitant to rent the facility unless lights were provided, may turn out these lights and at the same time create additional hazards the extent of which is unknown to the plaintiff, and then defend against a plaintiff injured by the new hazard on the ground that her negligence in facing a new and unknown peril insulates it from its own negligence in simultaneously creating and concealing the hazard. The common law rule is a harsh one; if we are to follow it we must at the very least recognize the common law exceptions. And this is all the more true'where, as here, some of the lights which the landlord customarily maintained on the dock (those near the shore at the point where the plaintiff entered) were still burning, and the lights which were disconnected were the very ones which might have revealed the extent of the repairs and changes being made at the far end of the main walkway leading back to the boats.

In the opinion of the majority of this court, the dissent properly indicates the applicable yardstick—“volenti non fit injuria”— but improperly applies it. No one contends that Mrs. Kreiss knew the protecting apron had been removed from the inner dock corner and a catwalk substituted so as to leave a four-inch crack. No one contends that when she testified she was “very familiar with the landing” she meant the landing in its state of temporary repair. On the contrary, she meant the landing before the apron guard was removed. No one contends that she knew, when she arrived that afternoon, that she would find the dock torn up—the letter received by patrons not only failed to state what renovations were intended, but even when they were to be initiated. No one contends that a person traversing the dock area only twice (her attention being called to the danger of the unguarded area where the dock had been moved from the left of the “T”) would necessarily have noticed the small crack on the opposite side of the dock, or that she did in fact notice it, or that for any other reason she would anticipate this hazard. Her testimony was that, because she knew of the danger on the outside dock area, she walked over what she thought was the apron because it was safer. This is a far cry from Bridger v. Gresham, 111 Ga. 814 (35 SE 677), where the plaintiff, either a trespasser as alleged in the answer in that case or at best a licensee, entered a hotel closed to the general public, and, after questioning an unidentified “guest” or “special friend” of the owner voluntarily undertook to seek out somebody in charge for the purpose of making a sale and was injured while prowling through a darkened veranda and falling down a flight of steps. It has nothing in common with Hardigree v. Housing Authority of the City of Atlanta, 107 Ga. App. 406, supra, where the only negligence alleged against the landlord was failure to provide lights. And in Mattox v. Atlanta Enterprises, 91 Ga. App. 847, supra, the holding was that the plaintiff was “aware she could not safely descend” the staircase. In Floyd v. City of Albany, 105 Ga. App. 31 (123 SE2d 446), Judge Hall held that the plaintiff’s alleged contributory negligence in falling over a pair of scales on a public sidewalk in broad daylight was a jury question. Had the same accident occurred at night we do not apprehend that the darkness would per se have insulated the defendant from all negligence less than wilful misconduct, and the saíne is true of many other cases decided by this court and the Supreme Court. The language in some of the opinions is broad, but neither court has ever laid down the blanket rule that because an injury happens in darkness there can be no recovery. Each negligence case must rest on its own facts. “A judgment upon a similar state of facts is binding, but the argument of a judge, pronouncing an opinion upon a different state of facts, however much the argument may appear to fit the facts of the case being considered, is not binding as a decision.” Wright v. Lake, 75 Ga. 219, 221. The court accordingly sees no necessity to overrule the long line of decisions cited in the dissenting opinion, but does, insofar as any of them may lead to the conclusion that a plaintiff is under all circumstances barred from recovery because the defendant’s negligence was concealed by darkness, disapprove any language therein which- may lead to such conclusion.

(b) But it is further contended that the plaintiff was chargeable with knowledge of the open area between the dock and catwalk so as to preclude her recovery for the reason that she had on the afternoon in question twice traversed the area without incident, once in broad daylight going to the boat and again at dusk when she returned to shore to visit friends. In Firestone Service Stores v. Gillen, 58 Ga. App. 782, 787 (199 SE 853), a “semi-darkness” case, the court held: “It affirmatively appearing from the petition that the defendant had ascended the stairway once only, and a few minutes afterward, for the first time, descended the same (no structural change having been made in the stairway between the time of ascent and the time of descent), we cannot say under these circumstances that a conclusion, as a matter of law, is demanded that the plaintiff should have had a full appreciation of the danger, and that in the exercise of ordinary care she should have avoided the injury to herself. This, we think, is a question for the jury.” The mere fact that one has been in the area before will not preclude him from recovery for injuries received from defective premises unless his failure to observe the defect amounts to a lack of that care which an ordinarily prudent person would exercise under the circumstances. “Daily and commonplace use” may raise the presumption of knowledge, or constructive knowledge, as a matter of law. Brim v. Healey Real Estate & Imp. Co., 56 Ga. App. 483 (193 SE 84). “That a plaintiff is guilty of ordinary negligence will not bar recovery where it precedes any duty on his part to discover and avoid the negligence of the defendant, but it will bar recovery where it appears that it is the sole proximate cause of injury, or where by the exercise of ordinary care he might have avoided the defendant’s negligence after it became apparent to him, or where by the exercise of such care he might have detected negligence on the part of the defendant which, had it been detected, could by ordinary care have been avoided. Negligence of the plaintiff not falling into one of these categories which concurs with negligence of the defendant in proximately causing the injury, but which does not equal or exceed the negligence of the defendant, goes in mitigation but not in bar of the recovery.” Conner v. Downs, 94 Ga. App. 482 (2) (95 SE2d 393); F. E. Fortenberry & Sons v. Malmberg, 97 Ga. App. 162 (102 SE2d 667).

Nor will the fact that the defect was patent (or would have been patent had there been sufficient illumination) in and of itself establish contributory negligence so as to bar recovery. “Where the owner or occupier of premises fails to exercise ordinary care in keeping reasonably safe such premises for the use of those who go upon them as invitees, and where such an invitee is injured by a patent defect in such premises of which the injured party has no actual knowledge it can not be held as a matter of law that such injured party was lacking in ordinary care in failing to observe the defect in time to avoid the injury.” Wynne v. Southern Bell Tel. &c. Co., 159 Ga. 624 (4) (126 SE 388). In that case the plaintiff fell and was injured by catching the heel of her shoe in a crack running along and parallel to step runners which were constructed with steel treads, each with an opening of approximately two inches at the back of the runner. The defect was obviously patent, since the crack was not concealed in any way. The plaintiff had obviously used the steps before, since it was alleged that these steps were the only access to the building, and that she was coming out of the building. The Supreme Court in the opinion, while acknowledging that it was dealing with a patent defect, nevertheless in reply to a certified question from this court stated that the questions of both the defendant’s negligence and the plaintiff’s contributory negligence were matters addressed to the triors of fact and were not to be decided as a matter of law. “An invitee is not obliged to inspect the premises to discover latent defects nor even to observe all patent defects.” Misenhamer v. Pharr, 99 Ga. App. 163 (107 SE2d 875). “If the defect, though patent, is not of such a nature and character as necessarily to be seen in the exercise of ordinary care by a person coming upon the premises, and who has the right to rely upon the duty of the occupier of the premises to keep the premises safe ... an invitee coming upon the premises and using the alcove as a walkway, who, without observing the defect, is tripped by it and injured, is not, as a matter of law, guilty of negligence in not observing the defect in the walk.” Lane Drug Stores v. Brooks, 70 Ga. App. 878, 884 (29 SE2d 716). See also Wilson v. Pollard, 62 Ga. App. 781 (10 SE2d 407); Southern Bell Tel. &c. Co. v. Bailey, 81 Ga. App. 20 (2) (57 SE 2d 837); Lawrence v. Hayes, 92 Ga. App. 778 (4) (90 SE2d 102); Rogers v. Sears Roebuck, 45 Ga. App. 772 (166 SE 64); Williams v. Evans, 50 Ga. App. 496 (178 SE 460). That which a plaintiff may not do without barring himself from recovery is to accept a risk so obvious that taking it amounts to failure to exercise ordinary care for his own safety, Culbreath v. Kutz Co., 37 Ga. App. 425, 432 (140 SE 419), or recklessly to test an observed and clearly obvious peril, Laseter v. Clark, 54 Ga. App. 669 (1) (189 SE 265). This plaintiff had traversed this dock area only twice previously to her fall after the repairs had been initiated, once in broad daylight and again at dusk. She had noticed changes, and had noticed a peril in the dock area arising from the removal and rearrangement of a large section of dock which left open to the water a space which had previously been a walkway. When she returned to the boat on the night in question she found the area dark, although it was customarily lighted; she-remembered the removal of the northern dock section and thought the walkway to the right was “still the way it was with the apron and I thought it would be safer to walk that way and I did.” The four inch crack or hole in the walkway, although doubtless patent and obvious to one stepping over it in daylight would not be so at night, nor would it have been patent and obvious to the plaintiff during the afternoon if she had not actually stepped along or over it on one of her previous trips. Nothing in the pleadings, affidavit and depositions demands a finding that the plaintiff knew of the defect, that it was such a defect as would necessarily be discovered by one traversing the area, or that she had such familiarity with the premises as to be chargeable with knowledge of it as a matter of law. There remains in the case a genuine issue as to material facts, both as to the negligence of the defendant and as to the exercise of ordinary care on the part of the plaintiff.

It follows that the trial court erred in granting the motion for summary judgment.

Judgment reversed.

Felton, C. J., Nichols, P. J., Bell, P. J., and Jordan, J., concur. Hall, J., concurs specially. Frankum and Eberhardt, JJ., dissent. Pannell, J., not participating.