Geise v. Lee
| Decision Date | 11 March 1974 |
| Docket Number | No. 2103--I,2103--I |
| Citation | 10 Wn.App. 728,519 P.2d 1005 |
| Parties | Lulu Owens GEISE, Appellant, v. Wallace LEE and Jane Doe Lee, d/b/a Lazy Wheels Mobile Home Park, Respondents. |
| Court | Washington Court of Appeals |
Owen J. Wales, Seattle, for appellant.
Martin, Niemi, Burch & Mentele, Susan F. French, Seattle, for respondents.
Plaintiff, tenant of a mobile home park, appeals a judgment, dismissing her claim based on defendants' alleged negligent failure to remove accumulated snow and ice from the common area in that park as a result of which she fell and was injured. The question raised concerns the duty of a mobile park owner in Washington to remove ice and snow accumulations from the common driveway area of the mobile home park under the landlord's control when the latter has not assumed that duty.
Lazy Wheels Mobile Home Park, located in Bothell, Washington, consists of approximately 100 spaces for mobile homes with a driveway between the rows of spaces for both pedestrian and vehicular use. No portion of the driveway is reserved for the exclusive use of either pedestrians or vehicles. Plaintiff, 61 years old, had been a tenant of the park since 1965. From January 23 to 26, 1972, a total of approximately 12 to 14 inches of snow accumulated on the common areas of the park. During the 6 days following January 26, alternately melting and freezing conditions, combined with passing vehicles, caused hummocks and ridges of ice from 4 to 6 inches in height to form throughout the common area of the park. On February 1, 1972, plaintiff, while carefully making her way to her sister's automobile, slipped and fell sustaining serious injuries. Defendant owners were aware of the dangerous accumulation and condition existing at the time. They had been directly informed thereof by the plaintiff on several occasions. Defendants' manager had also been notified of the condition. Other mobile home tenants had slipped and at least one other tenant required hospitalization as a result of her fall. Defendants at no time agreed to undertake, nor did they undertake, the removal of accumulated ice and show. Plaintiff sued defendants for injuries she sustained by defendants negligently failing to remove the accumulated ice and snow. Defendants timely moved for summary judgment, supported by an affidavit stating:
I am the owner and proprietor of the trailer park where Mrs. Geise rented a space. In the January-February snow of 1972, I did not clean the street where she fell prior to her fall. I did not want to assume the responsibility of keeping the streets clear of snow and ice, and all the tenants knew it.
The court granted defendants' motion on the ground defendants had no duty to remove the accumulated ice and snow, having never undertaken the duty so to do. This appeal followed.
The relationship between a mobile park owner and an occupant of a space in that park, pursuant to mutual arrangements for that purpose, is one of landlord and tenant. Sunde v. Tollett, 2 Wash.App. 640, 469 P.2d 212, 41 A.L.R.3d 319 (1970). At common law one who leases a portion of his premises but retains control over the approaches, common passageways, stairways and other areas to be used in common by the owners and tenants, has a duty to use reasonable care to keep the common areas in safe condition for use of the tenant in his enjoyment of the demised premises. McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971). The rule stated has long been followed in this state. Yarbrough v. Smith, 66 Wash.2d 365, 402 P.2d 667 (1965); Feigenbaum v. Brink, 66 Wash.2d 125, 401 P.2d 642 (1965); Anderson v. Reeder, 42 Wash.2d 45, 253 P.2d 423 (1953); Schedler v. Wagner, 37 Wash.2d 612, 225 P.2d 213, 230 P.2d 600, 26 A.L.R.2d 604 (1950); Andrews v. McCutcheon, 17 Wash.2d 340, 135 P.2d 459 (1943); Stoebuck The Law Between Landlord and Tenant in Washington, 49 Wash.L.Rev. 291, 355 (1974).
The landlord's common law duty with respect to common areas within his control is subject to several exceptions. See generally 1 H. Tiffany, Real Property § 109 (3d ed. 1939). One exception, known as the Massachusetts rule, adopted in a number of states including Washington, is that the landlord's duty does not extend to the removal of accumulations of ice and snow from the common areas unless the landlord has assumed the duty to do so. Schedler v. Wagner, Supra; Oerter v. Ziegler, 59 Wash. 421, 109 P. 1058 (1910); Cramer v. Van Parys, 7 Wash.App. 584, 500 P.2d 1255 (1972). In Cramer the court approved the following jury instruction as a correct statement of the Washington law:
You are instructed that a landlord has no duty to remove accumulations of snow and ice from common passageways unless you find that the landlord has, in fact, assumed this duty. In the event you so find, then the defendant would be liable for injuries proximately caused by his failure to use reasonable care in the discharge of such duty, taking into consideration all the surrounding facts and circumstances.
7 Wash.App. at 590--591, 500 P.2d at 1260.
When Oerter was decided in 1910, Massachusetts and some other states had already adopted the rule. Oerter states the rule it adopts represented the weight of authority, citing several cases, including Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am.Rep. 344 (1883). Since Oerter, the Massachusetts rule has been followed in a number of cases, some fairly recent. Karp v. Mills, 348 Mass. 768, 202 N.E.2d 244 (1964); Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969). Some other states have refused to follow the Massachusetts rule, treating it as providing an illogical exception to the general duty of the landlord to use reasonable care to keep the common areas in his control in safe condition. Fuller v. Housing Authority, 108 R.I. 770, 279 A.2d 438, 49 A.L.R.3d 382 (1971); Dubreuil v. Dubreuil, 107 N.H. 519, 229 A.2d 338 (1967); Strong v. Shefveland, 249 Minn. 59, 81 N.W.2d 247 (1957). The New York cases have adopted an intermediate position. They hold that if the surface of the ice and snow on the common areas has formed into ridges or hummocks, then the landlord's duty of removal arises because the user is exposed to an unreasonable risk of harm. See Annot., 49 A.L.R.3d 387, 408--409 (1973). Neither Massachusetts nor Washington has adopted the New York rule, and Oerter, as noted, still expresses the Washington law. The cases supporting the respective rules discussed are collected in Annot., 49 A.L.R.3d 387 (1973).
Plaintiff recognizes she cannot prevail on appeal unless the Oerter rule is overruled, the new rule to be applied to her case. She invites this court to do so. She relies upon the cases that have rejected the Massachusetts rule, adopting instead what is sometimes called the Connecticut rule, E.g., Fuller v. Housing Authority, Supra. Textwriters support the latter rule. See 2 F. Harper & F. James, Law of Torts § 27.17, at 1516--17 (1956); W. Prosser, Law of Torts § 63, at 407 (4th ed. 1971). See 49 Am.Jur.2d Landlord and Tenant § 822 (1970); Annot., 49 A.L.R.3d 387, 400--404 (1973). In referring to the absence of a landlord's duty to remove ice and snow from common areas and the absence of and duty on the landlord's part to light common hallways, except under exceptional circumstances, 2 F. Harper & F. James, Supra, at 1517, states:
Both these rulings involved the fixing of arbitrary standards of care in a way that is disappearing generally throughout the field of negligence.
Appellate courts, no doubt, have discretionary power to change or abandon prior legal doctrine and, to the extent necessary, to overrule prior decisions. As stated in State ex rel. Madden v. PUD No. 1, 83 Wash.2d 219, 221, 517 P.2d 585, 587 (1973):
There is no vested right in an existing law--common law or statutory--which precludes its change or repeal.
Unless the decision changing an existing rule holds otherwise, the change made in the opinion is retroactively applicable to the case in which the change is adopted. Some of the Washington cases illustrating retroactive overruling are set out in the margin. 1
Retroactive overruling of an established rule may well result in substantial hardship to those who, in good faith, have relied on the rule. Such hardship may be minimized or largely eliminated if the overruling court has first suggested and thereby alerted the legal profession to the possibility the rule involved may be later reconsidered, E.g., K. Llewellyn, Common Law Tradition, Deciding Appeals 299--305 (1960). See Manion v. Pardee, 79 Wash.2d 1, 482 P.2d 767 (1971); Potts v. Amis, 62 Wash.2d 777, 787, 384 P.2d 825 (1963). A similar result may follow if, in the concerned state, there has been published from a responsible source a reasoned statement of dissatisfaction with the existing rule. Such publication may serve to put interested parties on notice the possibility of reconsideration is a real one and they should govern themselves accordingly.
An alternative method of obviating hardship to the concerned litigants resulting from their good faith reliance on the existing rule is to make the overruling prospective in operation, leaving the case under review to remain governed by the rule on which they have relied. State ex rel. Fin.Comm. v. Martin, 62 Wash.2d 645, 384 P.2d 833 (1963). See State v. Adams, 81 Wash.2d 468, 503 P.2d 111 (1972). Whether retroactive overruling should take place, whether hardship exists with respect to which a litigant should be protected, and what method of obviating hardship should be adopted, is determinable on a case by case basis as public interest may require.
In the instant case there is neither a showing nor argument the problem is so serious and the need for change so great and urgent that the 63-year-old Oerter rule must be immediately and retroactively overruled even though defendants...
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