124 Ga. App. 648 | Ga. Ct. App. | 1971
In this action by a tenant against her landlord for injuries sustained when the steps at the back of the house fell as she went upon them, plaintiif concedes that she had given no notice to the landlord of any claimed defect in the steps. She admits that there was nothing in the appearance of the steps to indicate that a defect existed. The landlord testified by deposition that he had no knowledge of the defect. However, he asserted that the property had been in the hands of a rental agent, whose duty it was to "see that it is kept in good condition” and that he had looked to the agent to make repairs when needed. There is no testimony, by affidavit or otherwise, from the agent.
Consequently, the defendant has failed to carry his burden in connection with his motion for summary judgment. It was incumbent upon him to show that neither he nor his rental agent had knowledge of the defect. It was thus not error to deny the motion.
The posture is very different upon a trial, where the burden rests upon the plaintiff. Cf. Black v. New Holland Baptist Church, 122 Ga. App. 606, 609 (178 SE2d 571).
Judgment affirmed.
