¶1dissenting.
¶2While I agree with the conclusions reached by the majority in Divisions 1 and 4, but not with the reasoning contained therein, I must dissent as to Divisions 2, 3, and 5, and I write separately to fully explain my disagreement with the majority opinion.
¶3On January 19, 1984, a cold winter morning, Beverly Jean Thompson, appellant, suffered disfigurement and disability as a result of second and third degree burns over 36 percent of her body, which she sustained when her dress caught fire while she was warming herself in front of a bedroom space heater. At the time of her injury, she was renting a house located at 3825 College Street, College Park, Georgia, from appellees, James L. Crownover and Crownover Electrical & Mechanical, Inc. The house in question consisted of three bedrooms, a living room, and a kitchen, and it contained a gas space heater in the living room and in one bedroom. The remaining pertinent facts will be outlined as the respective enumerations of error are *639addressed.
¶4The trial court found that the defective condition of the space heater was patent and that appellant had equal or superior knowledge of the defective condition; therefore, she assumed the risk and summary judgment was granted to appellees/landlords.
¶51. In her first enumeration of error, appellant contends that the trial court erred in granting summary judgment to appellees on appellant’s claim that material issues of fact remain as to matters of upkeep. In Division 1 of the main opinion, the majority concedes that material issues of fact remain as to this issue, but for reasons contained in Division 2 of the main opinion, the majority rules that the trial court did not err in granting summary judgment. We must begin our analysis of Enumeration 1 with reference to one of the Code sections dealing with a landlord’s duty to repair. OCGA § 44-7-13 provides that the landlord must keep his rental premises in repair.
¶6Since this matter is before the court on a review of the trial court’s grant of summary judgment under OCGA § 9-11-56, there are certain rules we must apply. The burden is on the moving party to show a lack of genuine issues of material fact. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). The evidence is to be construed most favorably toward the party opposing the motion for summary judgment. McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178. (129 SE2d 408) (1962), and the party opposing the motion is to be given the benefit of all reasonable doubts and inferences. Holland, supra.
¶7The evidence, viewed in light of the foregoing rules of law, shows that although the bedroom heater was in a state of disrepair at the inception of the lease, it fell into further disrepair during the life of the lease when the metal frame fell out and the back fell off the heater. This matter was brought to the attention of the landlord and he promised to repair it. The Atlanta Gas Light Company examined the heater and found it to be defective. The landlord told the tenant to repair the heater and deduct the amount from her rent, but the material the tenant bought to repair the heater did not work. The landlord promised to make the necessary repairs since only the box and metal frame were left, but he never made the repairs. In December 1983, the property was condemned as being unfit for human habitation due to violations of the city code, which included the defective bedroom heater. On December 21, 1983, the house was “red tagged” by the City of College Park, which also notified appellees of the condemnation. On the day that appellant was burned, her mother, who also resided with her, was out looking for another place for them to live.
¶8Although I disagree with the majority’s assessment of the patent and latent defects issue in Division 1,1 see no need to take issue with *640it at this point since it did not form a critical part of the majority’s ruling as to Division 1. However, I must note that contrary to the statement contained in the majority opinion, the patent-latent defect analysis does not apply where the landlord assures the tenant that repairs will be made. Richardson v. Palmour Court Apts., 170 Ga. App. 204 (316 SE2d 770) (1984). Nevertheless, the foregoing statement of facts clearly shows that the trial court improperly granted summary judgment to appellees on the duty to repair issue, and the majority opinion was correct in disavowing such a ruling.
¶92. I part company with the majority opinion in Division 2 wherein it rules that summary judgment was proper even though material issues of fact remain to be determined. Since the enumeration of error as to negligence per se is closely associated with appellant’s negligence claim, they will be addressed together. Citing Williams v. Jones, 26 Ga. App. 558 (2) (106 SE 616) (1921), the majority opinion concludes that appellant failed to exercise ordinary care for her own safety and that, therefore, she is barred from recovery. In analyzing this conclusion, we must begin with a time-honored legal axiom. Matters of ordinary care, assumption of risk and contributory negligence are normally matters for jury determination except in situations where the evidence is clear, plain, and indisputable. United Car &c. Leasing v. Roberts, 150 Ga. App. 369 (3) (257 SE2d 905) (1979); Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977); Davis v. Gen. Gas Corp., 106 Ga. App. 317 (2) (126 SE2d 820) (1962). Citing Hearn v. Barden, 115 Ga. App. 708, 709-710 (155 SE2d 649) (1967), the majority concludes that appellant had full knowledge of the danger, and, therefore, she was precluded from recovery because she should have abstained from using the defective heater. The majority places great reliance on the Supreme Court’s summary affirmance in Rothstein v. Golf Club Co., 214 Ga. 187 (104 SE2d 83) (1958), aff'g 97 Ga. App. 128 (102 SE2d 654) (1958), a case wherein a two-year-old child was injured in a fall into a ravine located near her apartment complex. The Rothstein court ruled that since the condition existed at the time the landlord-tenant relationship was entered into, it was a patent defect and recovery was barred. However, the majority here fails to realize that there have been many advancements in the law since the 1958 Rothstein decision, which was brought on general negligence grounds (Code Ann. § 105-401 (now OCGA § 51-3-1)). In Rothstein, the court ruled that a landlord has no duty to repair a patent defect unless there is an express agreement to repair. The majority here fails to take into consideration the date of the Rothstein case and the fact that a landlord’s statutory duty to repair was in its infancy at that time and had not developed to the state of maturity that exists today. As early as Lee v. Huiet & Powell, 142 Ga. App. 528, 530 (236 SE2d 506, 508) (1977), a case involving a *641leaky ceiling which eventually collapsed, we ruled that “[continued use of the room with knowledge of the defect will not, as a matter of law, bar appellant’s recovery. [Cits.]” In Warner v. Arnold, 133 Ga. App. 174, 179 (210 SE2d 350) (1974), a case involving the burglary of an apartment and destruction of property, we found that summary judgment was improper even though the tenant knew that the lock on her door was defective and she had told the landlord of its existence: “The immediacy of the connection between the inadequate (although functioning) lock, the landlord’s notice of the inadequacy, either actual or constructive, and the burglary and arson, compels us to hold that the landlord is not insulated as a matter of law, and that the jury should properly pass on the questions of agency, notice, foreseeability, intervening causation, assumption of risk, as well as the suitability of the lock in question.”
¶10Likewise, in Phelps v. Consolidated Equities Corp., 133 Ga. App. 189, 193 (210 SE2d 337) (1974), where a tenant attempted to clear ice from a walk and was unsuccessful, and in attempting to traverse the ice to go to work, fell, the court ruled that the tenant “had no alternative but to traverse the ice if she was to go to and from her apartment.” See also Grier v. Jeffco Mgt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985); Richardson v. Palmour Court Apts., supra. This rule has become known as the “necessity rule.” In Plant v. Lowman, 134 Ga. App. 752 (216 SE2d 631) (1975), where a tenant was injured while using a defective stairwell even though another stairwell was available, this court ruled that even though the tenant had knowledge of the defective condition of the stairwell, the landlord was not insulated as a matter of law from liability, and that summary judgment was inappropriate. Therefore, as it relates to the case in chief, since this court has not only recognized the “necessity rule” but also an extension of the “necessity rule,” the trial court erred in granting summary judgment. The jury should determine (1) if the defect was in fact patent; (2) if so, was the danger apparent; (3) if so, did appellant appreciate the risk and assume it; (4) and, if so, does the “necessity rule” apply?
¶113. For reasons contained in the foregoing divisions, I believe that material issues of fact remain to be determined not only as to negligence, but also negligence per se; therefore, it would be premature to rule on the punitive damages issue.
¶12I would reverse the trial court and allow appellant to have a jury trial.
¶13I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Pope join in this dissent.