Opinion
No. 36510-3-II.
August 5, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 05-2-01787-6, Diane M. Woolard, J., entered May 25, 2007.
Reversed and remanded by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
Makenna Neely, five-year-old daughter of Christopher Neely and Stefani Neely (now Almond), fell out of a second story window of the apartment where Stefani and her three daughters lived. Christopher and Stefani sued Mark and Kristina Vukanovich, the property owners, and The Reid Company, LLC, the property manager, alleging building code violations. The Vukanoviches and The Reid Company appeal from the trial court's denial of their motion to dismiss. We reverse and remand.
For clarity, we refer to various parties by their first names, intending no disrespect. The Neelys had recently separated at the time of this incident.
Our commissioner granted discretionary review under RAP 2.3(b).
FACTS
On August 18, 2004, Stefani decided to rent a two-story apartment for her and her daughters in a duplex located in Camas. The Vukanoviches owned the duplex. After a walkthrough with Mark the following day, Stefani began moving into the apartment.
According to Christopher and Stefani, August 21 was a particularly warm day. Before her daughters' arrival at the apartment, Stefani opened a window in the second floor living room for ventilation. The bottom of the window sill measured 11 inches from the floor and when open, it created an opening approximately 3 feet by 6 feet. A screen had been installed on the window.
Christopher took the girls to the duplex as Stefani continued moving her belongings into the apartment. For an hour or two, the girls stayed downstairs where it was cooler. Eventually, they went upstairs to the second floor so Stefani could put the youngest daughter down for a nap in the master bedroom. The two older girls went into the living room and played with some toys while Stefani was in the bedroom.
About 10 minutes later, Stefani heard a noise and her seven-year-old daughter Maddison ran into the bedroom screaming that Makenna had fallen through the window. Stefani ran downstairs to Makenna, who lay unconscious on the concrete patio below. The patio was 10 feet below the upstairs window.
According to Stefani, Mark told her after the accident that he had always been concerned about the window. Mark stated that he did not recall that conversation, but he did not deny that it took place.
On April 7, 2005, Christopher, Stefani, and Jeffrey Jacobs, guardian ad litem for Makenna (hereinafter collectively Neely), sued The Reid Company, as property manager, and the Vukanoviches (hereinafter collectively Reid) for Makenna's damages resulting from her fall. Reid moved for summary judgment. The trial court denied the motion and Reid appeals.
ANALYSIS
Reid first contends that the trial court erred in denying its motion for summary judgment. It argues that the window was not defective and was an open and obvious danger, precluding its liability.
We review an order or denial of summary judgment de novo, performing the same inquiry as the trial court. Ski Acres, Inc. v. Kittitas County, 118 Wn.2d 852, 854, 827 P.2d 1000 (1992). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c). We review issues of law and statutory interpretation de novo. Nelson Alaska Seafoods, Inc. v. Dep't of Revenue, 143 Wn. App. 455, 461, 177 P.3d 1161 (2008); Schellenbarger v. Brigman, 101 Wn. App. 339, 345, 3 P.3d 211 (2000). The parties do not dispute the facts.
The traditional common law rule is that, absent a repair covenant, a landlord is not liable to a tenant for "injuries caused by apparent defects after exclusive control has passed to the tenant." Sample v. Chapman, 7 Wn. App. 129, 132, 497 P.2d 1334 (1972); see Brown v. Hauge, 105 Wn. App. 800, 804, 21 P.3d 716 (2001) ("Under the common law, a landlord generally is not liable to a tenant for personal injuries caused by a defective condition in the premises."). Generally, a landlord has no duty to protect a tenant or the tenant's guest from open and obvious dangers. Sjogren v. Prop. of the Pac. Nw., LLC, 118 Wn. App. 144, 148-49, 75 P.3d 592 (2003).
Neely does not dispute that, even if the window was defective or dangerous, it was open and obvious. Nevertheless, Neely argues that Restatement (Second) of Property: Landlord and Tenant § 17.6 (1977) and Restatement (Second) of Torts § 343A(1) (1965) apply in this case to allow a claim for Makenna's injuries to proceed. We disagree that either section applies here as an exception to the open and obvious danger rule.
Turning first to § 17.6,
A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.
Reid argues that we have previously declined to adopt § 17.6. Further, Reid asserts that even if we decided to adopt § 17.6, it does not apply here because there was no building code violation or breach of an implied warranty of habitability. provides, "Porches, balconies or raised floor surfaces located more than 30 inches (762 mm) above the floor or grade below shall have guards not less than 36 inches (914 mm) in height." CP at 44.
In Pruitt v. Savage, 128 Wn. App. 327, 332, 115 P.3d 1000 (2005), after we noted that Washington courts had not adopted § 17.6, we declined to examine whether to extend implied warranties of habitability to third persons other than tenants due to a "paucity of briefing." In Sjogren, however, we specifically declined the plaintiff's urging to adopt § 17.6. 118 Wn. App. at 151. In that case, we based our decision on three reasons: (1) as distinguished from Lian v. Stalick, 106 Wn. App. 811, 25 P.3d 467 (2001), the dangerous condition at issue was in a common area and, thus, the landlord's common law duty to maintain common areas in reasonably safe condition applied; (2) unlike Lian, there was "an issue of fact as to whether the darkened stairs were an obvious danger"; and (3) the plaintiff's claim more appropriately fit within § 343A, "under which an obvious danger does not automatically bar her recovery." Sjogren, 118 Wn. App. at 151.
Neely argues that when the window was open, the second floor of the duplex became an "open-sided walking surface" under IBC § 1012, as well as a "raised floor surface" under IRC § R312.1. Resp't Br. at 14. But Neely provides no indication that these provisions contemplated windows. If the authors of the International Codes wanted guards to apply to all operable windows located 30 inches above grade, then they would have said so clearly and directly. In fact, as Reid points out, the 2006 amendments, effective July 1, 2007, to the International Codes require that windows placed six feet or higher above the finished grade can have only four inches of openable space for any portion of the window within two feet of the floor surface. Thus, the International Code sections in effect in Camas in 2004, and applicable to the present case, do not contemplate windows. As such, Reid did not violate a statutory or administrative duty under § 17.6.
With respect to an implied warranty of habitability, Neely argues that, because there was so little space between the window and the floor, the window was the "functional equivalent of a patio door." Resp't's Br. at 26. Neely asserts that the trial court correctly determined that questions of fact exist concerning whether the placement of the window violated the warranty of habitability.
Neely and Reid essentially agree that the only provisions of the Residential landlord-tenant act of 1973 (RLTA) that conceivably apply here to implicate a breach of an implied warranty are RCW 59.18.060(1) and (5). According to the RLTA,
Apart from the applicability of § 17.6, the RLTA limits remedies resulting from the failure to carry out the duties outlined in RCW 59.18.060. "Those remedies . . . are limited to (1) the tenant's right to repair and deduct the cost from the rent, (2) a decrease in the rent based upon the diminished value of the premises, (3) payment of rent into a trust account, or (4) termination of the tenancy." Howard v. Horn, 61 Wn. App. 520, 524-25, 810 P.2d 1387 (1991).
The landlord will at all times during the tenancy keep the premises fit for human habitation, and shall in particular:
(1) Maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation governing their maintenance or operation, which the legislative body enacting the applicable code, statute, ordinance or regulation could enforce as to the premises rented if such condition substantially endangers or impairs the health or safety of the tenant;
. . . .
(5) . . . [M]ake repairs and arrangements necessary to put and keep the premises in as good condition as it by law or rental agreement should have been, at the commencement of the tenancy.
RCW 59.18.060. Thus, to implicate applicable portions of the RLTA's warranty of habitability, Neely must be able to show that the placement of the window failed to follow statute or regulation in a way that impaired the Neelys' safety or that Reid failed to repair or maintain the premises adequately. As previously discussed, Neely does not show that Reid failed to follow Camas's building code and, as a result, RCW 59.18.060(1) does not apply here.
In Lian, 106 Wn. App. at 816, Division Three noted, "RCW 59.18.060 does not create a generally actionable duty on the part of the landlord to 'keep the premises fit for human habitation.'" The court further stated, "In the RLTA context, the defects must constitute violations of the landlord's specific duties as set forth under RCW 59.18.060." Lian, 118 Wn. App. at 818. Thus, before determining the severity of a defect, Lian requires an aggrieved tenant to show that a landlord has violated one of the specified duties set forth in RCW 59.18.060. Unlike here, the Lian court specifically pointed to uncontroverted facts showing a violation of the local building code. 106 Wn. App. at 818.
As for the duty to repair or maintain the premises under RCW 59.18.060(5), the placement of the window is actually at issue in this case, not its functionality or maintenance. RCW 59.18.060(5) addresses repairs. Neely does not specifically suggest the window was in a state of disrepair apart from the allegation that the window's close proximity to the floor was a building code violation. Because we have already examined and rejected that argument, RCW 59.18.060(5) does not apply to the placement, as opposed to the maintenance, of a window.
Neely argues that "[a]lthough the RLTA's warranty of habitability speaks in terms of a landlord's duty to 'maintain' the premises, a 'building that is not in compliance with the applicable building codes is not "maintained" for purposes of the law.'" Resp't's Br. at 19 (citing Pinckney v. Smith, 484 F. Supp. 2d 1177, 1182 (2007)). As discussed, Neely has not shown that Reid failed to "maintain" the building in the statutory sense contemplated by the Pinckney court.
The only option left to support Neely's breach of implied warranty claim would therefore have to originate from the first clause of RCW 59.18.060, i.e., whether the apartment at issue was generally "fit for human habitation." But case law does not support the proposition RCW 59.18.060 encompasses a generalized, actionable duty on the part of a landlord to maintain habitability of premises. Lian v. Stalick, 106 Wn. App. 811, 816, 25 P.3d 467 (2001); Aspon v. Loomis, 62 Wn. App. 818, 825-26, 816 P.2d 751 (1991). Thus, Neely may only rely on the numbered provisions of RCW 59.18.060 to show any breach of an implied warranty of habitability.
In sum, because Neely has not shown that Reid violated either RCW 59.18.060(1) or (5), Reid cannot be liable for breach of an implied warranty of habitability. Additionally, as discussed, Neely has not shown that Reid has violated a statutory or administrative duty. Thus, § 17.6 does not apply here.
Reid next contends that Neely cannot rely on § 343A(1) because it does not apply in circumstances where the defendant is not a "possessor of land." Appellant's Br. at 13. According to § 343A(1), "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."
A possessor of land is
(a) a person who is in occupation of the land with intent to control it or
(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other person is in possession. . . .
Restatement (Second) of Torts § 328E (1965).
In Pruitt Savage, 128 Wn. App. 327, 331, 115 P.3d 1000 (2005), we held that, at least in the landlord-tenant context, § 343A typically only applies to common areas because by definition a landlord or property manager is not a possessor of non-common areas. Neely asks us to follow Lian, which stated that in certain circumstances, § 343A might apply to "portions of the premises under the control of a residential tenant." According to Lian v. Stalick, 106 Wn. App. 811, 821, 25 P.3d 467 (2001), "[t]he determinative issue is not so much the location of the defect but whether the dangerous defect was so obvious that the landlord should have anticipated the harm even though the tenant knew of the defective condition."
Again, however, Neely has not shown that the placement of the window in this case constitutes a defect. In Lian, as previously mentioned, the defect at issue constituted a building code violation. 106 Wn. App. at 818. Further, even were we inclined to ignore that Neely was in sole possession of the non-common area where the window was located, which precludes application of § 343A under Pruitt, the placement of the window in this case does not constitute a maintenance defect, as was the case in Lian.
In sum, § 343A does not apply. Because neither § 343A nor § 17.6 applies here, the trial court erred in denying Reid's motion for summary judgment, as the window constituted an open and obvious danger that precludes Reid's liability.
Reversed and remanded.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.