dissenting.
I respectfully dissent from the majority opinion. I would find the trial court was correct in granting summary judgment to the landlord. The tenant was fully aware of the alleged defect in the premises, in fact, even more so than the landlord, since the tenant admitted he used the stairs on which he was injured, to get to his apartment, four to five times daily and had been living in this apartment for several months.
Although a landlord is required to keep the premises in repair (OCGA § 44-7-13), the landlord is not an insurer of the tenant’s safety. Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 191 (210 SE2d 337). “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.” Jackson v. Davis, 39 Ga. App. 621 (147 SE 913); accord Kimball v. Morcock, 57 Ga. App. 750 (196 SE 125); Gallovitch v. Ellis, 55 Ga. App. 780 (3) (191 SE 384); Parker v. Miller, 41 Ga. App. 560 (153 SE 619); Kleinberg v. Lyons, 39 Ga. App. 774 (3) (148 SE 535); Williams v. Jones, 26 Ga. App. 558 (2) (106 SE 616); Ledbetter v. Gibbs, 19 Ga. App. 485 (2) (91 SE 875).
The basis for a landlord’s liability is his superior knowledge of the defective or hazardous condition, and the danger resulting from it. Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770). However, it is not contested that the alleged defect, or hazard, was patent and appellant admitted full knowledge of the hazard and continued to use the stairs for his convenience, although he had another entrance which was safe — on the front side of the apartment. Hence, appellant’s testimony established that the route he chose was not one of necessity, but of convenience. Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814, 815 (354 SE2d 13). Neither was appellant forced to assume the risk because there was no other means of ingress or egress. Smith v. Collins, 182 Ga. App. 564 (356 SE2d 530). In essence, if the tenant knows of the hazard there is no duty on the part of the landlord to warn him and there is no liability for resulting injury because the tenant has as much knowledge of the hazard as the landlord. Garnett v. Mathison, 179 Ga. App. 242, 243 (345 SE2d 919); Bell v. Abercorn Toyota, 175 Ga. App. 668, 669 (333 SE2d 880); Purvis v. Holiday Hills &c. Assn., 163 Ga. App. 387, 388 (294 SE2d 592). “By voluntarily acting in view of that knowledge, the [tenant] assumes the risk and dangers incident to the known condi*34tion.” Bell, supra at 669; accord Sumner v. Otasco, Inc., 175 Ga. App. 177, 178 (333 SE2d 28); Yankey v. Battle, 122 Ga. App. 275 (176 SE2d 714).
“ ‘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.]’ ... ‘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.]’ ” (Emphasis supplied.) Thompson v. Crownover, 186 Ga. App. 633, 635 (368 SE2d 170); accord Richardson, supra at 205; Hearn v. Barden, 115 Ga. App. 708, 709-710 (155 SE2d 649); Williams v. Jones, supra. Here, there was full knowledge of the hazard by the appellant, equal or superior to that of the landlord (Garnett v. Mathison, supra), a duty to avoid using the defective or unsafe portion of the premises (Thompson, supra), knowledge of a safe but alternative route (Lindsey, supra), and an election to use the known defective route, thus assuming the risk (Bell, supra; Sumner, supra; Yankey, supra).
“Although the issue of the plaintiff’s exercise of due diligence for his own safety is ordinarily reserved for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable.” Soucy v. Alexander, 172 Ga. App. 501, 502 (323 SE2d 662); accord Harris v. Star Svc. &c. Co., 170 Ga. App. 816 (318 SE2d 239); Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95 (6) (303 SE2d 284); Ga. Power Co. v. Purser, 152 Ga. App. 181, 182 (262 SE2d 473); Smith v. Bel-Arbor, 121 Ga. App. 739 (175 SE2d 146).
Accordingly, where, as here, it is clear and palpable that appellant was aware of the alleged defect and danger, and knew of the alternative and safe route, but voluntarily used the dangerous stairs for his own convenience, he assumed the risk and summary judgment for the landlord was appropriate.
I would affirm the trial court.
*35Decided January 24, 1989. Charles L. Day, for appellants. Swift, Currie, McGhee & Hiers, Lynn M. Roberson, for appellees.I respectfully dissent. I am authorized to state that Chief Judge Carley, Judge Sognier and Judge Pope join in this dissent.