Meyberg v. Dodson

Stolz, Judge.

The parties to this action for damages for personal injuries were both widows, between 65 and 70 years old, and friends for 50 years. The plaintiff had been to the defendant’s house about six times and to the rear portion thereof once. At the defendant’s invitation, the plaintiff spent the night at the defendant’s home. At the plaintiffs request, the light was left on in the bathroom during the night. During the night, the plaintiff decided to go into the unlighted den to escape the defendant’s snoring. From the hall, the plaintiff opened the unlocked basement door, thinking it to be the den door, and fell down the unlighted stairs to the basement. The plaintiff appeals from the grant of summary judgment for the defendant. Held:

This appeal is controlled adversely to the appellant by the cases of Goodwin v. Mullins, 122 Ga. App. 84 (176 SE2d 551) and Sanford v. Howe, 129 Ga. App. 641 (200 SE2d 508) and cases cited therein.

Even if the constitutional issue had been raised in the trial court, this court does not have jurisdiction to hold Code §§ 105-401, 105-402 unconstitutional in order to abolish the common-law categories of invitee, licensee and trespasser and substitute the standard of reasonable care on the part of the occupier of premises in view of the probability of harm to entrants, as has been done in various jurisdictions and as is urged by the appellant. Mason v. Town of Berlin, 128 Ga. App. 177 (196 SE2d 181) and cits.

Judgment affirmed.

Bell, C. J., Deen, P. J., Clark, Webb and Marshall, JJ., concur. Pannell, P. J., Quillian *325 and Evans, JJ, dissent. Argued June 30, 1975 Decided September 22, 1975 Rehearing denied October 24, 1975 Scott Walters, Jr., for appellant. Greer & Klosik, Frank J. Klosik, Jr., for appellee.