Lane v. Kelley

• Decision Date: 26 April 1982
• Docket Number: No. 124,551,124,551
• Citation: 57 Or.App. 197,643 P.2d 1375
• Parties: Diane LANE, Appellant, v. Glenn W. KELLEY and Susan C. Kelley, Respondents. ; CA A20729.
• Court: Oregon Court of Appeals

Page 1375

643 P.2d 1375

57 Or.App. 197

Diane LANE, Appellant, v. Glenn W. KELLEY and Susan C. Kelley, Respondents.

No. 124,551; CA A20729.

Court of Appeals of Oregon.

Argued and Submitted Jan. 18, 1982.

Decided April 26, 1982.

Robert M. Atkinson, Marion-Polk Legal Aid Service, Inc., Salem, argued the cause and filed the briefs for appellant.

Kathleen A. Evans, Certified Law Student, Salem, argued the cause for respondents. On the brief were Dale L. Crandall and Crothers & Crandall, Salem.

Before RICHARDSON, P. J., THORNTON, J., and FORT, Senior Judge. ^*

FORT, Senior Judge.

This case was brought by a tenant against a landlord, alleging violations of the Oregon Residential Landlord and Tenant Act. ORS 91.770. Plaintiff sought damages both for failure to maintain the premises in habitable condition and for water damage to her personal property resulting from leakage. For the former she claimed reduction of rent from the agreed monthly rental of $325 to $125 per month for the full 12-month period of her occupancy, totaling $2,400. For the damaged personal property, the value of $700 was alleged. Defendants counterclaimed for three months' unpaid rent totaling $975.

At the conclusion of plaintiff's case defendants moved to strike from the complaint the following allegation:

"(1) Plaintiff's mutual obligation to payment has been diminished by an average of $200.00 per month since the inception of the rental agreement. Plaintiff has therefore overpaid defendants, and has been damaged thus far in the amount of $2400.00."

The court allowed the motion. Thereafter, pursuant to defendants' motion, the court dismissed the complaint. Defendants then proceeded on their cross-complaint. The court found in their favor and entered judgment accordingly against the plaintiff on her complaint and for defendants on their cross-complaint. Plaintiff appeals.

The first assignment charges error in granting defendants' motion to strike plaintiff's claim for damages and also the granting of the motion to dismiss. The principal issue relates to proof of damages resulting from violation of certain habitability requirements of ORS 91.770. The court, sitting without a jury, stated at the time of the oral ruling:

" * * * Of course you know I am sitting here as trier of fact as well as trier of law. * * * There has been no proof at all of the reasonable rental value of the premises before or after. * * * But there has simply been a failure of proof and that is the basis for my ruling on these motions."

Plaintiff relies on our decision in L & M Investment Co. v. Morrison, 44 Or.App. 309, 605 P.2d 1347, rev. den. 289 Or. 275 (1980). In that case, we considered the question of damages and said:

" * * * The tenant testified that the rental value was diminished by 75 percent of the stated rental because of the defects in the premises, about which she testified. Pictures of some of those defects, which violate ORS 91.770(1), are in evidence. See Lewis v. Worldwide Imports, Inc., 238 Or. 580, 395 P.2d 922 (1964). That evidence, although meager, was sufficient to permit the trial court to calculate a dollar amount by which the rental value of the premises was diminished. This is what it did." (Emphasis added.) 44 Or.App. at 313, 605 P.2d 1347.

In the case at bar there is no evidence concerning by what amount, if any, the conditions claimed to render the house unhabitable diminished the agreed rental of $325, either in percentage or in dollars.

Plaintiff does not contend that she offered any such evidence, but rather argues that it is unnecessary. During the trial and prior to the rulings, the judge called plaintiff's attention to the total absence of any such evidence and stated that he considered plaintiff's opinion thereon would be competent. Plaintiff, although stating "Perhaps it would be competent," made no request to reopen or otherwise to offer such evidence. There can be no doubt but that it would properly presented, have been admissible. L & M Investment Co. v. Morrison, supra, so holds. See Lewis v. Worldwide Imports, Inc., 238 Or. 580, 395 P.2d 922 (1964).

Recently, in Park West Mgt. v. Mitchell, 47 N.Y.2d 316, 418 N.Y.S.2d 310, 391 N.E.2d 1288 (1979), the New York Court of Appeals considered, in a landlord-tenant case, the rules relating to damages for breach by the landlord of the habitability requirement.

"Problematical in these cases is the method of ascertaining damages occasioned by the landlord's breach. That damages are not susceptible to precise determination does not insulate the landlord from liability * * *. Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord's duty to maintain the premises in habitable condition, the proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach. The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceeding in which the tenant...