Brady v. Whitewater Creek, Inc.

Decision Date06 December 2022
Docket Number38449-7-III
Parties Aleta BRADY, an individual, Appellant, v. WHITEWATER CREEK, INC., a foreign corporation; Summit Ridge, LLC, a Washington corporation, Respondents.
CourtWashington Court of Appeals

Richard L. Anderson, King County Prosecuting Attorney, 516 3rd Ave. Ste. W554 Seattle, WA, 98104-2362, Sergio Alfredo Garciduenas-Sease, Lucas William Hannum Garrett, Schroeter Goldmark & Bender, 401 Union Street, Suite 3400, Seattle, WA, 98101-2678, for Appellant.

Todd R. Startzel, Kirkpatrick & Startzel PS, 108 N Washington St. Ste. 201, Spokane, WA, 99201-5133, Alison Mae Turnbull, Attorney at Law, 108 N Washington St. Ste. 201, Spokane, WA, 99201-5133, Luke Wesley O'Bannan, Kirkpatrick & Startzel PS, 108 N Washington St. Ste. 201, Spokane, WA, 99201-5003, for Respondents.


Staab, J.

¶1 Whitewater Creek, Inc. managed the Summit Ridge Apartments. Whitewater received a written tenant complaint that a man was observed attempting to access an upper-floor apartment balcony by scaling the exterior of the building. Two weeks later, Aleta Brady, a tenant at Summit Ridge, was raped in her apartment by a neighbor assailant. She believed he accessed her third-floor balcony and entered her apartment through the unlocked slider door. She sued Whitewater for failing to protect her from the risk that persons could access the upper-level balcony. Whitewater moved for summary judgment on the theory that it did not owe Brady a duty, and Brady could not produce evidence of breach or causation. Prior to granting Whitewater's summary judgment motion, the trial court struck the untimely declaration of Brady's expert witness.

¶2 Procedurally, we find that the trial court abused its discretion in failing to conduct a Burnet1 analysis on the record before striking the relevant declaration.

¶3 On the substantive issues, we reject Brady's contention that Whitewater had a special relationship with her attacker that required Whitewater to trespass or evict him. However, we hold that because Whitewater had a special relationship with Brady; it had a duty to protect her from the foreseeable criminal conduct of a third person. Whitewater's knowledge that a person was recently seen attempting to access an upper-level balcony at night was sufficient to create a duty for Whitewater to protect Brady from the foreseeable risk of someone accessing her upper-floor balcony. Additionally, sufficient evidence exists in the record to create a factual issue as to whether Whitewater breached its duty and whether the breach caused Brady's injuries. We therefore reverse and remand.


¶4 Because this issue was decided on summary judgment, the following facts are set forth in a light most favorable to the nonmoving party, Brady.

¶5 Summit Ridge Apartments are owned by Summit Ridge, LLC, and managed by Whitewater Creek, LLC. Maryann Prescott is the president of Whitewater. Whitewater constructed the Summit Ridge apartment complex and began accepting new tenants in 2015. The apartment complex consists of 6 buildings and a total of 120 apartments.

¶6 There is evidence in the record that Whitewater took steps to keep its tenants safe with regard to the security of the apartments. The tenant apartments had deadbolts and door-handle locks on the primary front doors. All the windows had locks. The apartment sliding-glass doors to the balconies had a switch-type lock on the door handle that could only be locked from the inside.

¶7 Casie Waholi handled leasing during the first six months after construction. She testified that Whitewater ran background checks for rental credit and criminal history on prospective tenants. At the time of this incident, most misdemeanors within three years and any felonies within seven years disqualified a potential tenant. A current tenant could be evicted if they were subsequently convicted of qualifying offenses, including sexual abuse, drug dealing, and charges involving guns.

¶8 Whitewater maintains incident reports, tenant complaint forms, and maintenance work forms for the property managers, maintenance personnel, and tenants to fill out in the office. If Whitewater became aware of criminal or suspicious activity, the policy was to provide tenants with safety notices in writing that are posted to the front door of every tenants apartment. Whitewater "rarely [has] major criminal issues that create tenant dissatisfaction." When an incident occurs on the property, Whitewater would follow up by requesting a copy of the police report to check for any criminal arrest and would contact the police department to check on any convictions.

¶9 Under Whitewater's lease provisions, all persons living in a unit must be on the lease so tenants could be screened. When investigating unauthorized guests, Whitewater would speak to the tenant to confirm the guest and would send several notices to the tenant before turning the issue over to counsel. Under the lease, Whitewater could evict a tenant for lease violations but was not required to do so.

¶10 The plaintiff, Brady, lived in a third-floor apartment at Summit Ridge. The apartment had a balcony that was only accessible from inside the apartment. LaJuane Roberson was an unregistered tenant, living in an apartment on the other side of the common stairwell, which was to the left of Brady's apartment. Roberson is an 18-year-old male with a light build, standing 5'10" tall. He was described as fit, athletic and could climb through the window of his apartment. There is evidence in the record that Roberson was living at Summit Ridge from November 2015 until October 2016.

¶11 Although it is not clear if Whitewater knew of Roberson specifically, the company had received information that unauthorized guests were staying in the apartment on the other side of the common stairwell, which was to the left of Brady's apartment, for more than 14 days. In April and May 2016, Whitewater served four notices of violation on the tenants living in the apartment for unauthorized guests staying more than 14 days. The record does not indicate what action was taken in response to these notices.

¶12 In April 2016, Brady witnessed Roberson in a physical altercation with a young female in the complex's parking lot. Brady called 911 to report that Roberson was assaulting the female, but there is no evidence that Roberson was charged with a crime for this incident. Brady filed a tenant complaint form in the manager's office. As she completed the form and verbally described what she witnessed, an employee told her to be quiet because the "neighbor" she reported had just walked in. Several days later, the maintenance worker asked Brady if Roberson was the person she saw in the parking lot. Brady responded yes. Roberson denied assaulting a female.

¶13 Several months later, another tenant at Summit Ridge, Olga Yurkova, witnessed a balcony trespass incident. While on her balcony at 4:00 a.m. she heard a noise and saw a male climbing the stairwell roof. He was trying to get into a second-floor balcony belonging to her neighbor. He was "dangling" and about to roll himself onto the balcony. He was "kind of pushing himself, but using his legs from the wall that he can roll over to the balcony." Clerk's Papers (CP) at 93. She also described the incident as "kinda like in a movie, he's ninja, and pushing himself by the feet" and getting his arms over the railing to pull up by the armpits. CP at 183. She asked the trespasser what he was doing, and he said he lived there. She told him that he did not. He then got back on the roof. She said without a doubt that had she not yelled at him, he would have been able to get up on the balcony. She got scared and went back into her apartment and locked the door. She does not know how he left. She only saw him from the back and he was wearing a hoodie.

¶14 In the morning, Yurkova called the police to report the incident. The police report for the incident indicated that the man was skinny, blonde, and white, but Yurkova denied telling the police that he was blonde.

¶15 The following Monday, Yurkova and her neighbor reported the incident to the apartment manager at Summit Ridge. Yurkova filled out a complaint form: "I went on the balcony Saturday morning at 4:30 am. I saw a guy on the roof above the stairs and trying to climing [sic] to my neighbor balcony. I said him something and scared him so he run away." CP at 98. The form indicates that it will be part of Summit Ridge's records after submission and that should follow-up be required, they would contact Yurkova shortly.

¶16 Right after Yurkova's complaint, the maintenance person at Summit Ridge spoke to Yurkova and reported back to the president, Maryann Prescott. Prescott testified that they did not find any evidence to corroborate Yurkova's claim and did not believe that someone had attempted to access the balcony as she described.

¶17 Nevertheless, Prescott claims maintenance was instructed to go door to door and provide wooden dowels to tenants who were home and wanted one. While Prescott testified that all tenants were offered dowels for their sliding doors, she had no first-hand knowledge that this occurred, and the maintenance person was unavailable to testify. Whitewater did not keep records as to which tenants were notified or accepted a dowel. There is no evidence that the other tenants were told about the balcony incident. Yurkova later testified that the "apartment complex did nothing to make the apartment's more safe" and she "had to make her own door block and add a stick on alarm to her slider." CP at 184.

¶18 Two weeks after the Yurkova incident, an intruder raped Brady in her apartment in the middle of the night. She believed the intruder entered her apartment through the sliding glass door on her balcony. Brady remembered locking her front door before going to bed and specifically remembered unlocking the front door for the police who arrived after the rape. But she did not lock...

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