Eduardo v. Clatsop Community Resource

• Decision Date: 21 June 2000
• Citation: 168 Or. App. 383,4 P.3d 83
• Parties: Maria Carolina EDUARDO, Appellant, v. CLATSOP COMMUNITY RESOURCE DEVELOPMENT CORPORATION, fka Clatsop Community Action, Inc., an Oregon nonprofit corporation, Respondent.
• Court: Oregon Court of Appeals

4 P.3d 83

168 Or. App. 383

Maria Carolina EDUARDO, Appellant, v. CLATSOP COMMUNITY RESOURCE DEVELOPMENT CORPORATION, fka Clatsop Community Action, Inc., an Oregon nonprofit corporation, Respondent.

(972150; CA A103699)

Court of Appeals of Oregon.

Argued and Submitted September 24, 1999.

Decided June 21, 2000.

Daniel Hoarfrost, Beaverton, argued the cause and filed the briefs for appellant.

Thomas M. Christ, Portland, argued the cause for respondent. With him on the brief was Mitchell, Lang & Smith.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

De MUNIZ, P.J.

In this personal injury action, plaintiff tenant seeks review of a judgment dismissing her claims against defendant landlord and denying her motion for summary judgment. We reverse.

Plaintiff's first amended complaint, which is the subject of this appeal, alleges the following facts. The parties entered into a month-to-month residential rental agreement in May 1995. Defendant owned the property that was the subject of that agreement. Both parties agreed to comply with all applicable codes and regulations. Building codes in effect when the building was constructed required continuous handrailings for staircases with more than three risers. Building codes in effect when the parties entered into the rental agreement also required continuous handrailings. In November 1995, plaintiff suffered a serious injury when she fell down the staircase connecting the main floor of her residence to the basement. The staircase was constructed of varnished wood with nonabrasive treads and, at the time of the fall, lacked continuous handrails.

Plaintiff further alleges that the condition of the stairwell violated applicable building codes, creating an unreasonably dangerous situation that defendant knew about or reasonably could have discovered. She identifies four claims for relief based on theories of statutory liability, negligence per se and negligence. Plaintiff's first two claims for relief are based on defendant's alleged violation of building codes in effect when the building was constructed. Plaintiff's third claim for relief alleges negligence per se based on defendant's failure, under the terms of the rental agreement, to comply with applicable building codes. Plaintiff's fourth and final claim alleges that defendant negligently subjected her to a foreseeable risk of harm and that defendant knew of, or reasonably could have discovered the dangerous condition of the staircase.

The trial court dismissed plaintiff's first amended complaint for failure to state a claim under ORCP 21A(8), finding that it added no material allegations to her original complaint, which had been dismissed previously. The court also denied plaintiff's motion for summary judgment, finding that issue moot. Plaintiff assigns error to the court's judgment dismissal of her first amended complaint and denial of her motion for summary judgment.

In reviewing plaintiff's claims for relief, we accept the allegations in plaintiff's complaint as true, together with all reasonable inferences. McAlpine v. Multnomah County, 131 Or.App. 136, 138, 883 P.2d 869 (1994), rev. den. 320 Or. 507, 888 P.2d 568 (1995). Even vague allegations as to each element of a claim for relief are sufficient to survive a motion to dismiss. Id.

Plaintiff's first claim for relief rests on a theory of statutory liability, arising from the alleged violation of building codes in effect at the time of construction.¹ Specifically, plaintiff alleges that the absence of a continuous handrail violated Astoria City Ordinance (ACO) No. 39-35 (1939), providing

"[t]hat all of the provisions of the Uniform Building Code of the Pacific Coast Building Officials' Conference of 1937 [(UBC)], be and the same are hereby adopted by reference and incorporated in this ordinance in the same manner and with the same force and effect as if each and all of said provisions were herein fully set forth[.]"

The relevant UBC provision, section 3305, provides that

"[a]ll stairways shall have walls or well secured balustrades or guards on each side and handrails shall be placed on at least one side of every stairway and stairways exceeding forty four inches (44") in width shall have handrails placed on each side."

To support an action for statutory liability in this case, ACO No. 39-35 must first "impose [on landlords] a statutory duty to act on behalf of [a tenant]" who is at risk of being injured as a result of the landlord's failure to act.²Scovill v. City of Astoria, 324 Or. 159, 169-70, 921 P.2d 1312 (1996) (violation of statute that requires peace officers to take intoxicated persons into custody may give rise to action in statutory tort). Second, the ordinance must "disclose that a failure to act as mandated was contemplated by the legislature to give rise to a potential liability in tort[.]" Id.

Our first inquiry, therefore, is whether ACO No. 39-35 imposes a duty on defendant as a landlord. Ordinances are construed using the familiar PGE analysis. Harris v. Sanders, 142 Or.App. 126, 130, 919 P.2d 512, rev. den. 324 Or. 322, 927 P.2d 598 (1996). We begin with the text as the best evidence of a legislative body's intent. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). We also look at context, including "other provisions of the same statute and related statutes, id. at 610-11, 859 P.2d 1143, prior enactments and prior judicial interpretations of those and related statutes, Owens v. Maass, 323 Or. 430, 435, 918 P.2d 808 (1996), and the historical context of the relevant enactments." Young v. State of Oregon, 161 Or.App. 32, 35-36, 983 P.2d 1044, rev. den. 329 Or. 447, 994 P.2d 126 (1999).

ACO No. 39-35 requires, by reference to section 3305 of the UBC, that "handrails shall be placed on at least one side of every stairway[.]" (Emphasis added.) When used in a statute, "shall" normally imposes a nondiscretionary duty on the person or persons directed to act. Scovill, 324 Or. at 167 n. 7, 921 P.2d 1312 (citing Dika v. Dept. of Ins. and Finance, 312 Or. 106, 109, 817 P.2d 287 (1991)

). The same is true for ordinances. In any event, defendant does not dispute that ACO No. 39-35 imposes an affirmative duty to act. Rather, defendant argues that that duty does not apply to landlords. According to defendant, building codes regulate construction, not maintenance, and therefore apply to builders, not landlords.

Turning to other provisions of the UBC, we note that section 102 (1930) "regulate[s] the maintenance, use and occupancy of all buildings[.]"³ Similarly, section 105 (1930) provides that "all devices or safeguards which are required by this Code at the erection, alteration or repair of any building shall be maintained in good working order." Defendant apparently agrees that handrails were required when the building was erected but contends that it did not violate the ordinance by purchasing a noncomplying house. We need not, and do not, decide that issue because the issue here is whether defendant violated the code by leasing a noncomplying house to plaintiff. In addition to construction and repair, the UBC regulates occupancy and uses, which includes residential leases. Moreover, the UBC unambiguously directs all required safeguards to be maintained in good repair. There are no exceptions for landlords. We therefore conclude that the duty imposed by ACO No. 39-35 applies to landlords.

At oral argument, defendant emphasized that requiring subsequent owners to comply with building codes that were in force at the time a building was constructed would provide a boon to the construction industry and would be unfair to the owners. Defendant's argument appears to be predicated on the assertion that plaintiff did not allege that the requirement for continuous handrails remained in effect after 1941, when plaintiff's residence was constructed.

We agree that plaintiff's pleading is not a model of clarity. However, for purposes of this analysis, we construe paragraphs 4 and 5 of plaintiff's complaint to allege that her fall resulted from the violation of building codes requiring a continuous handrail and that that requirement was in effect at the time of plaintiff's fall.

Apart from the pleadings issue, the Supreme Court has said that building construction and remodeling must comply with existing codes. Landolt v. The Flame, Inc., 261 Or. 243, 251, 492 P.2d 785 (1972) (subsequent property owners are responsible for injuries caused by violation of building codes in effect at the time of construction). This does not mean, and we do not hold, that owners of a building, built in compliance with existing codes, risk liability if the codes are later changed and the building remains in its original condition. However, when it is alleged that the property did not comply with building codes in effect at the time of construction and that the code remains in effect, liability may attach.⁴

Next, we consider whether "a failure to act as mandated was contemplated by the [legislative body] to give rise to a potential liability in tort[.]" Scovill, 324 Or. at 169, 921 P.2d 1312. Once again we begin by looking at the text and context. We find no express liability provision in the UBC, so plaintiff's right of action must exist by implication, if at all. In the absence of an express liability provision, we look for contextual clues indicating the legislative body's intent to provide a civil right of action. Id. at 169-70, 921 P.2d 1312. Plaintiff makes no contextual argument. Instead, relying on Bellikka, 306 Or. at 636, 762 P.2d 997, she asserts that the violation of building codes, enacted as safety regulations, provides her with a basis for statutory liability because she is a member of the protected class and was injured by the violation.

However, as Bellikka makes clear,

"`statutory tort' allows recovery of damages if the plaintiff can show that the damages suffered came about as a result of the...