Bellikka v. Green

• Decision Date: 16 November 1988
• Citation: 306 Or. 630,762 P.2d 997
• Parties: , 49 Ed. Law Rep. 978 Sandra L. BELLIKKA, Petitioner on review, v. Carol GREEN, Defendant, and Columbia Christian College, an Oregon corporation, Respondent on review. CC A8507-04251; CA A42728; SC S34821.
• Court: Oregon Supreme Court

Page 997

762 P.2d 997

306 Or. 630, 49 Ed. Law Rep. 978

Sandra L. BELLIKKA, Petitioner on review, v. Carol GREEN, Defendant and Columbia Christian College, an Oregon corporation Respondent on review.

CC A8507-04251; CA A42728; SC S34821.

Supreme Court of Oregon In Banc.

Argued and Submitted May 5, 1988.

Decided Sept. 29, 1988.

Reconsideration Denied Nov. 16, 1988.

Stan Sather, Portland, argued the cause and filed the petition, for petitioner on review.

Thomas M. Christ of Mitchell, Lang & Smith, Portland, argued the cause and filed a response to the petition, for respondent on review.

JONES, Justice.

The question in this case is whether a landowner who rents real property to a tenant is liable to a third person injured by a dangerous condition on the rented property known to the landowner at the time of the rental.

Plaintiff brought a personal injury action against Carol Green, tenant, and Columbia Christian College (the College), landowner, alleging that the College had rented property with a concealed hole in the lawn into which the plaintiff fell while "trick or treating" on Halloween. The circuit court granted the College's motion to dismiss plaintiff's complaint against the College under ORCP 21 A(8) as not stating ultimate facts sufficient to constitute a claim. ¹ The Court of Appeals affirmed. Bellikka v. Green, 88 Or.App. 604, 746 P.2d 255 (1987). We reverse the decision of the Court of Appeals.

The factual allegations of the second amended complaint on which plaintiff predicates the College's liability may be summarized as follows. The College owned a residence on N.E. 92nd Place in Portland, which it rented to Carol Green in February 1984. At 5:30 p.m. on Halloween of the same year, plaintiff accompanied her pre-school children across the lawn as the children were going to the front door of the house to trick-or-treat. The porch light was on at the residence. There was no sidewalk leading to the front door. Plaintiff fell and was injured after she stepped into a partially concealed hole in the lawn about three feet from the paved driveway. Plaintiff alleged that the hole had been in the lawn prior to the time defendant rented the house to Green, and that defendant knew or should have known of the existence of the hole and failed to fix or give warning about the hole.

Plaintiff's claims for relief are based on five interrelated theories of liability. Plaintiff's first and third claims are based on defendant's alleged violation of its duty under the Residential Landlord and Tenant Act (RLTA), ORS 91.700 to 91.895, to maintain the rental premises in a habitable condition. The second claim is based on defendant's alleged breach of an implied warranty that the rental premises are habitable. The fourth and fifth claims are based on common-law negligence.

RESIDENTIAL LANDLORD AND TENANT ACT CLAIMS

The RLTA provides that "[a] landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition." ORS 91.770(1). ² This court held in Humbert v. Sellars, 300 Or. 113, 708 P.2d 344 (1985), that tenant's guest may recover damages from the landlord for violation of the landlord's duty under the Act. Plaintiff relies on an extension of Humbert for her theories of liability under the RLTA. We start with a brief discussion of that case.

In Humbert the plaintiff was a guest who, on leaving the tenant's apartment, slipped and fell while attempting to wade through several inches of water standing on the tenant's patio. The questions before this court were whether a plaintiff other than a tenant could state a cause of action arising under the RLTA, and whether the plaintiff in Humbert could rely on a violation of the statute for the basis of her cause of action.

We held that persons other than tenants were protected by the RLTA. The external contiguous patio floor within the tenant's exclusive control was more like the other floors within the dwelling unit than it was like grounds. The statutory duty to maintain in "good repair" covers "floors" and not "grounds." Because evidence had been offered thatthe landlord had failed to keep the patio in good repair, we con cluded that granting summary judgment for defendant landlord was improper.

In the present case, plaintiff bases her statutory warranty claim on the RLTA, claiming that it applies to the grounds of the premises in addition to the floors. Specifically, plaintiff contends that defendant violated the RLTA by renting the premises with the hole in the lawn. She relies on ORS 91.770(1)(f), which provides:

"A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. For purposes of this section, a dwelling unit shall be considered unhabitable if it substantially lacks:

* * *

* * *

(f) Building, grounds and appurtenances at the time of the commencement of the rental agreement in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, and all areas under control of the landlord kept in every part clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin * * *."

Plaintiff seeks to erase the distinction between floors and grounds that this court made in Humbert. The statute sets different standards for different parts of the property. With regard to "floors"--at issue in Humbert--the landlord must maintain them in "good repair." As to "grounds," they must be "clean, sanitary and free from accumulation of debris." The sanitary requirements of ORS 91.770(1)(f) do not create a warranty of habitability to include a hole in the grounds present when the premises were leased. Plaintiff's claim which relies on this statute was properly dismissed.

In her third cause of action, plaintiff argues that the RLTA gives rise to a statutory tort claim against the landlord. Brewer v. Erwin, 287 Or. 435, 600 P.2d 398 (1979), held that the statement in ORS 91.725(1) of the RLTA "shall be so administered that an aggrieved party may recover appropriate damages" allowed a plaintiff to bring an action against a landlord for personal injuries. Humbert held that a visitor is within the class of persons that the legislature intended the RLTA to protect, and that the harm suffered by the plaintiff was of the type intended to be protected against. In other words, ORS 91.725 creates statutory liability. See Gattman v. Favro, 306 Or. 11, 24, 757 P.2d 402 (1988); see also Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983). Statutory liability is not necessarily "tort" liability, a characterization that might affect issues such as the measure of damages or the statute of limitations, see ORS 12.080(2), 12.110, 12.115. We use the phrase here because plaintiff's third claim used it.

The RLTA, after stating in ORS 91.770(1) the landlord's general obligation "at all times during the tenancy [is to] maintain the dwelling unit in a habitable condition," continues, "[f]or purposes of this section, a dwelling unit shall be considered unhabitable if it substantially lacks" a series of specified features. These include structural features such as weather protection and "[f]loors, walls, ceilings, stairways and railing maintained in good repair," ORS 91.770(1)(h); sanitary requirements, such as water and sewage connections and garbage receptacles; and locks and other features for safety from intruders and fire hazards. The statute says that substantial lack or inadequate maintenance of these features "shall be considered" to make a dwelling unhabitable, but it does not expressly say that only substantial lack or failure to maintain the listed items shall be so considered. It does not say that "unhabitable" means the lack of the listed features or otherwise indicate that the list is exclusive.

Statements of a general principle or category, followed by a list of particular instances, often reflects diverging goals of legislative drafting. The general statement alone may be too open-ended, communicating too little to those who must comply with it and leaving too much to argument and post hoc decision, unless some agency is assigned the task of refining the generality by rules. See, e.g., Megdal v. Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980) (standard of "unprofessional conduct"). Those who bear the burden of compliance not only want prior notice of their obligations, they also want those obligations confined within acceptable bounds. The drafters therefore state many requirements with some particularity. On the other hand, it is often unsatisfactory to list every particular form of the general objective to be achieved. If the demand for specificity is paramount, the list can be enacted without any reference to an overall principle or, if a collective term is needed, by phrasing it in the form of a definition.

This might have been done in the RLTA. ORS 91.770(1) could have listed items (a) through (k) without first stating a general requirement to maintain habitable conditions, or as a definition of "habitable condition." This approach, however, requires drafters to imagine and to list too many variations of the common theme, including future technological changes. For instance, if ORS 91.770(1)(e) had been written in the gaslight era, it would not have required a landlord who installed electric lights to maintain those lights.

This court already has recognized that other conditions besides those listed in paragraphs (a) through (k) can make residential quarters unhabitable. Humbert v. Sellars, supra. But when the legislature chooses to state both a general standard and a list of specifics, the specifics do more than place their particular subjects beyond the dispute; they also refer the scope of the general standard to matters of the same kind, often phrased in Latin as "ejusdem generis." We think that in order to fall short of what the legislature meant by "habitable condition," other...