Johnson v. Miller
| Decision Date | 14 January 2014 |
| Docket Number | 43752-0-II |
| Court | Washington Court of Appeals |
| Parties | JOHN JOHNSON and JANET JOHNSON, husband and wife, and the marital community thereof, Appellants, v. TOBIN MILLER and CRYSTAL MILLER, husband and wife, and the marital community composed thereof, Respondents. |
UNPUBLISHED OPINION
John Johnson appeals the summary judgment dismissal of his negligence action against Tobin and Crystal Miller.[2] Johnson contends that he is entitled to recover for injuries he received after slipping on the steps of a mobile home that the Millers were renting to his stepdaughter and her boyfriend. Because the Millers did not breach any duty owed to their tenants under the implied warranty of habitability or the Residential Landlord-Tenant Act of 1973 (RLTA), ch. 59.18 RCW, we decline to hold that Johnson, as the tenants' guest, may recover for his injuries and affirm the dismissal of his lawsuit.
The front door to the mobile home opened onto an attached and partly-enclosed porch. A door on one side of the porch opened to three steps that led to the path to the driveway. This door had a window, but there was no landing leading from the door to the steps. There was a light inside the porch as well as an outside motion sensor light to illuminate the steps. Baxter and Caldwell turned off the outside light during bad weather because it operated erratically in.the rain, and they let the light from inside the porch illuminate the area.
When Baxter and Caldwell first moved into the home, the steps had handrails on both sides. At some point after the Millers bought the home, Baxter removed both handrails because of their poor condition, intending to replace them himself. No one notified the Millers that the handrails had been removed and the tenants never told the Millers about any problems with the motion sensor light or the steps. Caldwell said the Millers came by often but could not specifically remember them coming by the property after the handrails were removed.
Johnson visited the home several times without incident after Baxter removed the -handrails. On a rainy evening in November 2006 Johnson stopped by again for a visit. When he left, he was carrying a large bag. Caldwell and Baxter heard a thump, went outside, and saw Johnson on the ground. He said that he had slipped and went home.
Johnson sued the Millers in November 2009, alleging that their negligence in maintaining the steps had caused him personal injury. The complaint alleged that there was no landing on the mobile home porch and that the steps had no handrail and insufficient lighting. The Millers moved for summary judgment, which the trial court denied.
When the Millers moved for reconsideration, the trial court granted summary judgment on Johnson's common law claims as well as his RLTA, res ipsa loquitor, and agency claims but it denied summary judgment on Johnson's claim that the Millers were vicariously liable for their tenants' acts on their behalf.
After additional discovery, the Millers moved for summary judgment on the vicarious liability claim. The trial court granted the motion, denied Johnson's motion for reconsideration, and entered a judgment for the Millers on all claims. Johnson now appeals the orders granting the Millers' motions for summary judgment and the order denying his motion for reconsideration.
When reviewing a summary judgment order, we engage in the same inquiry as the trial court. Marshall v. Bally's Pacwest, Inc., 94 Wn.App. 372, 377, 972 P.2d 475 (1999). Accordingly, our review is limited to the evidence and issues called to the trial court's attention; an argument neither pleaded nor argued to the trial court cannot be raised for the first time on appeal. Silverhawk, LLC v. KeyBank Nat'l Ass'n, 165 Wn.App. 258, 265, 268 P.3d 958 (2011). A summary judgment order can be granted only if the pleadings, affidavits, depositions, and admissions on file show the absence of any genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Marshall, 94 Wn.App. at 377. We must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 198, 943 P.2d 286 (1997).
We review an order denying a motion for reconsideration for abuse of discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002). A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
In a negligence case, the plaintiff. must prove duty, breach, causation, and damages. Nivens, 133 Wn.2d at 198. Whether an actionable duty was owed to a plaintiff is a threshold determination and a question of law that we review de novo. Munich v. Skagit Emergency Commc'n Cent., 175 Wn.2d 871, 877, 288 P.3d 328 (2012). Johnson argues here that the Millers are liable for his injuries because they violated duties of care owed to him under the common law and the RLTA.
Under the common law, a lessor owes no greater duty to guests of his tenant than he does to the tenant himself. Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P.2d 226 (1994); Regan v. City of Seattle, 16 Wn.2d 501, 504, 458 P.2d 12 (1969). A landlord is liable for an affirmative act of negligence, as well as breach of an express covenant to repair. Rossiter v. Moore, 59 Wn.2d 722, 725, 370 P.2d 250 (1962); Brown v. Hauge, 105 Wn.App. 800, 804, 21 P.3d 716 (2001). A landlord has no duty to repair non common areas absent an express covenant to repair. Aspon v. Loomis, 62 Wn.App. 818, 826, 816 P.2d 751 (1991), review denied, 118 Wn.2d 1015 (1992). And absent a repair covenant, a landlord is not liable to a tenant for injuries caused by apparent defects after exclusive control has passed to the tenant. Sample v. Chapman, 7 Wn.App. 129, 132, 497 P.2d 1334, review denied, 81 Wn.2d 1004 (1972).
A landlord is liable to a tenant, however, for damages caused by a concealed, dangerous condition known to the landlord that existed at the beginning of the leasehold. Frobig, 124 Wn.2d at 735. Although there is no duty to repair such a condition, the landlord must inform the tenant of known dangers that the tenant is not likely to discover. Aspon, 62 Wn.App. at 827. In addition, a landlord generally is not responsible for conditions that develop or are created by the tenant after possession has been transferred. Frobig, 124 Wn.2d at 736. These rules apply to tenants and guests alike. Frobig, 124 Wn.2d at 735-36.
Johnson does not contend that the Millers committed any affirmative act of negligence or violated any express covenant to repair. The porch and steps at issue in this case constitute non common areas, and the alleged defects at issue—the lack of a landing, railings, and adequate lighting—were patent rather than latent defects.[3] See Schedler v. Wagner, 37 Wn.2d 612, 615-16, 225 P.2d 213 (1950) (stairway to leased premises intended solely for tenant's exclusive use is not common area), overruled on other grounds by Geise v. Lee, 84 Wn.2d 866, 529 P.2d 1054 (1975). Furthermore, the tenants removed the railings and turned off the outside light after they took possession of the property. Under these facts and the common law rules set forth above, the Millers did not violate any duty of care. See Sjogren v. Props. of Pac. Nw., LLC, 118 Wn.App. 144, 148-49, 75 P.3d 592 (2003) ().
Johnson argues, however, that the rental agreement required the tenants to keep the property in good condition and that the Millers are vicariously liable for Baxter's actions in attempting to repair the handrails because he was acting as their independent contractor. Johnson supports this argument by citing several Restatement provisions. See Restatement (Second) of Property §19.1 (1977) (); Restatement (Second) of Torts § 419 (1965) (same); Restatement (Second) of Torts § 424 (1965) ().
The Millers respond that at common law, an employer is not liable for the negligence of an independent contractor. Afoa v Port of Seattle, 176 Wn.2d 460, 476, 296 P.3d 800 (2013). The Millers also point out that Johnson cites no case law to support application of these Restatement sections where the alleged independent contractor is a tenant; indeed, there are no...
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