Brown v. Hauge

• Citation: 21 P.3d 716,105 Wash.App. 800
• Decision Date: 19 April 2001
• Docket Number: No. 19114-1-III.,19114-1-III.
• Court: Court of Appeals of Washington
• Parties: Darla A. BROWN & Tom E. Brown, wife and husband, Respondents, v. Rudolph HAUGE & Ilena Hauge, husband and wife, individually and the marital community, Petitioners.

21 P.3d 716

105 Wash.App. 800

Darla A. BROWN & Tom E. Brown, wife and husband, Respondents, v. Rudolph HAUGE & Ilena Hauge, husband and wife, individually and the marital community, Petitioners.

No. 19114-1-III.

Court of Appeals of Washington, Division 3, Panel Four.

April 19, 2001.

Bruce E. Cox, Layman, Layman & McKinley, Everett B. Coulter, Jr., Evans, Craven & Lackie, Spokane, for Petitioners.

Dustin D. Deissner, Spokane, for Respondents.

SCHULTHEIS, J.

Darla and Tom Brown ran a residential home care facility for elderly people. The facility building was owned by Rudolph and Ilena Hauge, who leased it to the Browns. Ms. Brown tripped over the threshold of the front door one day and broke both of her legs. The Browns sued the Hauges for negligence, gross negligence, and tortious conduct. The trial court granted summary judgment dismissal of all claims except the one that sought recovery for breach of the lease agreement. On appeal, the Hauges contend neither the terms of the lease nor the actions of the parties created a duty to alter the threshold. Because we find that the Hauges had no duty under the lease to repair a condition that did not constitute an unsafe defect, we reverse and remand for summary dismissal.

The facts are not disputed. The Hauges, who lived in Texas, owned a house in Spokane that they leased to the Browns as a residential home care facility. The Browns lived in the home with two of their children and anywhere from one to three elderly residents. When the parties entered into the month-to-month lease in April 1996, Ms. Brown and Ms. Hauge talked about the high threshold on the front door. The Browns used the front door, which had a ramp to the street, for taking the elderly residents in and out of the house. Ms. Brown was concerned that it would be difficult to push wheelchairs over the doorsill. On the other hand, she did not see the high threshold as a safety problem. Ms. Hauge said she would discuss the threshold with her husband.

According to paragraph 9 of the lease agreement, the Hauges were obligated to "[m]aintain all structural components in good repair" and to "[k]eep common areas reasonably clean and safe from defects increasing the hazards of fire or accident[.]" Clerk's Papers (CP) at 45. Paragraph 15 included the following terms:

Any & all repairs, additions, improvements, etc. to dwelling and premises must be okayed by landlord, prior to any work being done. Expenses incurred for said work [are] negotiable between parties.

....

Tenant is to notify landlord of any repairs, improvements, etc. All work to be done by a licensed & bonded contractor. Again, all expenses will be negotiable. Landlord reserves the right to deny any such work, unless landlord sees necessary.

CP at 87 (emphasis in original). Ms. Brown claims she called the Hauges once or twice in May or June 1996 to talk about leveling the doorsill, but she never got a decision from them about this alteration.

In mid-March 1997, Ms. Brown walked out the front door, turned to step back in, and caught her shoe on the threshold. She fell, striking both shins on the threshold. Both of her lower legs were broken on impact. At the time of the accident, the Browns were looking for a new facility because the Hauges did not seem interested in remodeling their property to meet codes requiring larger windows and a firewall. After her fall, Ms. Brown was confined to bed and to a wheelchair for a while and had to find alternate accommodations for the only remaining elderly resident.

The Browns sued the Hauges in December 1998. They claimed the Hauges breached a duty to provide their tenants with safe premises. This duty was breached, they alleged, when the Hauges failed to remedy an "excessively high" front threshold that was "in violation of existing building codes and standards." CP at 3. In deposition testimony, Ms. Brown admitted that she never considered the doorsill a safety concern or a hazard to anyone. The reason she wanted to level the threshold was to make it more convenient for her elderly clients. She estimated she walked over the threshold at least 740 times in the two years she worked and lived at the facility.

In September 1999, the Hauges moved for summary judgment dismissal of the Browns' claims. The trial court dismissed claims based on a latent defect and warranty of habitability, but found that a question of fact remained as to a contract basis for the Browns' claim. Specifically, the court found that paragraphs 9 and 15 in the lease agreement created a question of fact regarding the Hauges' duty. In the letter to the parties denying the Hauges' motion for reconsideration, the court further explained: "The Defendants had a duty to the tenants (with full knowledge that some of the tenants were elderly people) to maintain the premises in good structural condition. Whether or not that duty was breached is a question of fact for the jury." CP at 106 (emphasis in original). The Commissioner of this court granted discretionary review.

On appeal, the Hauges contend they had no duty under the lease to change the height of the doorsill. Because this is a review of a summary judgment, we consider the facts in the light most favorable to the Browns (the nonmoving parties), who carried the burden of establishing that the Hauges owed them a duty. Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 515-16, 799 P.2d 250 (1990).

Under the common law, a landlord generally is not liable to a tenant for personal injuries caused by a defective condition in the premises. Teglo v. Porter, 65 Wash.2d 772, 773, 399 P.2d 519 (1965); Sample v. Chapman, 7 Wash.App. 129, 132, 497 P.2d 1334 (1972). One exception to this rule imposes tort liability if the landlord covenants to maintain the premises in good repair, but fails to do so. Teglo, 65 Wash.2d at 774, 399 P.2d 519; McCourtie v. Bayton, 159 Wash. 418, 423, 294 P. 238 (1930); Mesher v. Osborne, 75 Wash. 439, 446, 134 P. 1092 (1913). The tenant may recover for personal injuries caused by the landlord's breach of a repair covenant only if the unrepaired defect created an unreasonable risk of harm to the tenant. 17 WILLIAM B. STOEBUCK, WASHINGTON PRACTICE—REAL ESTATE: PROPERTY LAW § 6.38, at 345-46 (1995). The RESTATEMENT (SECOND) OF TORTS § 357 (1965) provides that the lessor of land is liable if (a) the lessor has contracted to keep the land in repair; (b) the disrepair creates an unreasonable risk that performance of the lessor's agreement would have prevented; and (c) the lessor fails to exercise reasonable care in performing the agreement. See also Te...