Howard v. Horn
| Decision Date | 06 June 1991 |
| Docket Number | No. 10957-7-III,10957-7-III |
| Citation | 810 P.2d 1387,61 Wn.App. 520 |
| Court | Washington Court of Appeals |
| Parties | Larry G. HOWARD and Patricia Howard, husband and wife, Appellants, v. William HORN, Respondent. |
Timothy Cronin, Mullin, Cronin & Blair, Spokane, for appellants.
Curtis L. Shoemaker, Paine, Hamble, Coffin & Brooke, Spokane, for respondent.
This is a personal injury action brought by Larry and Patricia Howard against their landlord, William Horn, for alleged negligence. Mr. Horn's motion for summary judgment of dismissal was granted. The Howards appeal. We affirm.
The question presented is whether a landlord may be sued in tort for personal injury to his tenant if the injury is proximately caused by a defect in the leased premises.
In 1984 Mr. Horn purchased a duplex, constructed in 1974, at E. 15103-05 Rich in the Spokane Valley. In September 1987, Mr. Horn rented unit 103 to Mr. and Mrs. Howard. On October 15, approximately 2 weeks after the Howards moved onto the premises, Mr. Howard stumbled on the uneven cement walkway between the porch and the driveway. He fell across three steps leading to the front door. As he fell, he put his arm through the glass window panel adjacent to the door. The accident occurred just after dusk while the Howards were unloading groceries and carrying children from their car. Mr. Howard admitted the porch light was on and that the uneven edge of the cement was visible "[i]f you were looking for it".
Mr. Horn moved for summary judgment, contending there were no material issues of fact under any legal theory of recovery. The trial court agreed and dismissed the action.
In reviewing a summary judgment order, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. Charlton v. Day Island Marina, Inc., 46 Wash.App. 784, 787, 732 P.2d 1008 (1987).
On appeal, the Howards contend the uneven sidewalk and failure to install a handrail along the front steps and safety glass in the window panel create questions of fact regarding Mr. Horn's duty and his consequent liability for the injury. There are three possible legal theories under which liability may be imposed: the rental agreement, common law, and an implied warranty of habitability under the Residential Landlord-Tenant Act, RCW 59.18.
First, the rental agreement required the Howards to accept the premises in its present condition and inform the landlord of any necessary repairs. The agreement further provided the Howards would maintain the grounds, including the sidewalks which were to be kept "in a safe condition." Thus, no duty was imposed upon Mr. Horn under the rental agreement.
Second, common law negligence encompasses four basic elements: duty, breach, proximate cause, and injury. Mauch v. Kissling, 56 Wash.App. 312, 318, 783 P.2d 601 (1989) (citing Hoffer v. State, 110 Wash.2d 415, 421, 755 P.2d 781 (1988)). A duty may arise from common law principles or a statute or regulation. Doss v. ITT Rayonier, Inc., 60 Wash.App. 125, 129, 803 P.2d 4 (1991) (citing Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 932, 653 P.2d 280 (1982)). Whether a duty exists is initially a question of law. In deciding questions of duty, a court must evaluate public policy considerations. Swanson v. McKain, 59 Wash.App. 303, 307, 796 P.2d 1291 (1990), review denied, 116 Wash.2d 1007, 805 P.2d 813 (1991).
A commercial or residential landlord may be liable for personal injury to a tenant if the injury is caused by a latent defect known to the landlord. Charlton, 46 Wash.App. at 788, 732 P.2d 1008, and cases cited therein. The trial court held the uneven cement and lack of a handrail were patent defects and the failure to use safety glass was a noncompensable latent defect because Mr. Horn did not know the glass was hazardous. There is no evidence indicating a material question of fact whether the uneven cement and lack of a handrail were patent defects. The absence of a handrail and uneven concrete were clearly observable. As to the latent defect, there is no evidence to create a question of fact whether Mr. Horn knew the glass was not safety glass. While he knew a broken panel of glass in unit 105 had been replaced by the prior owner when he purchased the duplex, he did not participate in the repair and did not know the type of glass which was installed. It was only after Mr. Howard broke the window in unit 103 that Mr. Horn learned the building code required it to be replaced with an acrylic glass. Thus, the court's conclusion the latent defect was noncompensable is correct and liability could not be imposed based on common law negligence.
Finally, the Howards contend a duty was imposed on Mr. Horn under the Residential Landlord-Tenant Act...
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