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SCARBORO ENTERPRISES, INC. et al. v. HIRSH (two cases).
Action for damages. DeKalb Superior Court. Before Judge Hubert.
1. The proof adduced on motion for summary judgment failed to pierce the allegations that the defendants knew or should have known of the defective condition of the stairs which collapsed, injuring the plaintiff.
2. The terms of the lease agreement did not require a construction that the plaintiff agreed to exculpate the defendant from liability as to the defendant's own negligence.
Ellis Hirsh filed a claim for damages in DeKalb Superior Court against Scarboro Enterprises. Inc. (hereinafter referred to as Scarboro) and Ward Wight Realty Company (hereinafter referred to as Wight). The plaintiff sought recovery for personal injuries he sustained when certain metal steps, affixed to the rear of a building he had leased from the defendant Scarboro through its agent Wight, collapsed. Tammy Hirsh, the plaintiff's wife, filed a claim for loss of consortium of her husband predicated on the identical facts in the plaintiff's claim. Thus for purposes of simplicity, we shall consider cases 44243 and 44244 as one case.
The claim as amended alleged that the defendant Scarboro leased to the plaintiff "the ground floor only" of a store building located in DeKalb County; attached to the rear wall of the building was a stairway; that such stairway was defective as built by the defendants and under their direction; that the defect was not a visible one which could have been detected by the plaintiff; that the defendant knew, or by the exercise of ordinary care should have known, of the condition of the defective construction; that the defendant retained qualified possession and general supervision of the stairway. The claim further alleged that the defect in the steps was of a structural nature; that by the exercise of ordinary care at the time of the installation of the steps the defendants could have known that the stairway was defectively anchored to the building; that the defect was a latent one; that the defendants kept and maintained control of the steps and they repaired and replaced them after the collapse.
The defendants answered and denied the material allegations of the plaintiff's claim. The defendants subsequently filed their motions for summary judgment based on an affidavit and deposition. The plaintiff filed counter-affidavits and the motion came on for hearing. The trial judge denied the motion for summary judgment and certified that it would be subject to review.
The defendants enumerated the denial of the motion for summary judgment as error. Such proof as is pertinent to the issues will be discussed in the opinion.
1. The plaintiff alleged that the defendants knew, or by the exercise of ordinary care should have known of the condition of the defective construction. While in the case of defective construction the landlord's knowledge of such defect is conclusively presumed, this is true only if the construction was accomplished by the landlord or under his supervision or direction. Dobbs v. Noble, 55 Ga. App. 201, 203 (189 SE 694); Robertson v. Nat Kaiser Invest. Co., 82 Ga. App. 416, 419 (61 SE2d 298). As has been stated many times by our appellate courts: "A landlord is liable for injuries to his tenant arising from latent defects unknown to the tenant, existing at the time of the lease, provided the landlord actually knew, or in the exercise of ordinary care on his part might have known, of their existence." Downs v. Powell, 215 Ga. 62 (1) (108 SE2d 715); National Distributing Co. v. Ga. Industrial Realty Pa., 106 Ga. App. 475, 477 (127 SE2d 303); Bazemore v. Burnet, 117 Ga. App. 849, 851 (161 SE2d 924).
The proof adduced relative to this allegation was as follows: The president of the defendant Wight stated in the affidavit that the defendant Wight contracted with a third party who added the metal steps to the rear of the building; that the steps were designed by the third party and all matters concerning construction thereof were left to it; that the steps were built, constructed, erected and added to the building completely by the third party and neither the defendant Wight nor the defendant Scarboro was involved in the supervision or construction of the building, and in the erection and building of the steps.
On the motion for summary judgment the rule is well established that: "The burden is upon the moving party, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence." Internat. Brotherhood &c. v. Newman, 116 Ga. App. 590, 592 (158 SE2d 298); Colonial Stores, Inc. v. Turner, 117 Ga. App. 331, 333 (160 SE2d 672). Moreover, opinion evidence is never sufficient to require the grant of a summary judgment. Harrison v. Tuggle, 225 Ga. 211 (2) (167 SE2d 395). The proof offered was insufficient to pierce the allegation that the defendant knew or should have known of the defective condition. While it tended to refute the allegation that the steps were constructed under the defendant's direction and control (however, see in this connection Code 105-502 (4) in conjunction with Code 61-111 and 61-112; Millard v. AAA Electrical Contractors, &c., 119 Ga. App. 548 (3) (167 SE2d 679)), there is nothing to show, as a matter of law, that the defendant did not have knowledge of the defective condition prior to and at the time the lease was executed. Thus a jury question was presented as to this issue.
The Carter case is not controlling in the case sub judice because the lease there expressly provided that the tenant released the landlord. The instant provision is styled an indemnity provision. It is well settled that, in a contract of this nature, any ambiguous provision is to be construed against the party who drew it and this is especially true regarding indemnity or exculpatory clauses. Farm Supply Co. v. Cook, 116 Ga. App. 814, 818 (159 SE2d 128); Covington v. Brewer, 101 Ga. App. 724, 729 (115 SE2d 368); Ins. Co. of N. A. v. Gulf Oil Corp., 106 Ga. App. 382, 388 (127 SE2d 43); Parkhill Trust Fund v. Carroll, 115 Ga. App. 108, 110 (153 SE2d 615). As pointed out in Batson-Cook Co. v. Ga. Marble &c. Co., 112 Ga. App. 226. 230 (144 SE2d 547), "in the absence of explicit language to the contrary, courts will not interpret an indemnity agreement as a promise by the indemnitor to save the indemnitee harmless on account of the latter's own negligence." Thus, there being no express language requiring a finding that this provision acted to release the landlord from its acts of negligence, we will not so hold.
The trial judge did not err in denying the motions for summary judgment.
Judgments affirmed. Felton, C. J., and Pannell, J., concur.
Henning, Chambers & Mabry, Eugene P. Chambers, Jr., for appellants.
Friday May 22 17:59 EDT

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