Monohon v. Antilla, No. 32704-0-II (WA 10/25/2005)
| Decision Date | 25 October 2005 |
| Docket Number | No. 32704-0-II,32704-0-II |
| Court | Washington Supreme Court |
| Parties | RAYMOND MICHAEL MONOHON, II, Appellant, v. LIISA J. ANTILLA, a/d/a LISA J. MULLEN, Respondent. |
Appeal from Superior Court of Pacific County. Docket No: 02-2-00145-1. Judgment or order under review. Date filed: 11/19/2004. Judge signing: Hon. Joel Penoyar.
Counsel for Appellant(s), Todd Whitney Gardner, Attorney at Law, 4512 Talbot Rd S, Renton, WA 98055-6216.
Kathleen Garvin, Law Offices of Kathleen Garvin, 16 Skagit Ky, Bellevue, WA 98006-1022.
Counsel for Respondent(s), Kelley J. Sweeney, Attorney at Law, 3315 S 23rd St Ste 310, Tacoma, WA 98405-1617.
Raymond Michael Monohon, II appeals from a judgment that Liisa Antilla was not negligent for his injuries when he fell through a deck while visiting a tenant in a building Antilla owned. We hold that the trial court should have given an instruction on Antilla's duty under the tenant's lease to maintain the deck; that the instruction based on Antilla's duty to warn of latent defects was improper; and that the trial court should have admitted the rental agreement in the evidence it sent to the jury. We reverse and remand for a new trial.
In June 1999, Raymond Monohon visited Keith Buchanan, a tenant in a building Antilla owned. The building had a second floor wooden deck running the length of the building that was separated by partitions for each individual tenant's use. The deck had 16 panels of several two-by-four slats laid on wooden ledgers nailed into the wooden beams supporting the deck.
The rental agreement between Buchanan and Antilla provided, in language similar to that of the Residential Landlord-Tenant Act, that Antilla would `{m}aintain all structural components in good repair' and `{k}eep common areas reasonably clean and safe from defects increasing the hazards of fire or accident.' Ex. 54, RCW 59.18.060(2)-(3). Antilla indicated at trial that she understood that her responsibility was to keep the structure safe. Buchanan indicated that he believed it was not his duty to maintain the deck structure. Buchanan and Antilla gave conflicting testimony regarding whether Buchanan notified Antilla of problems with the deck before Monohon's visit.
Earlier on the day of Monohon's visit, a guest of Buchanan's next door neighbor fell on Buchanan's portion of the deck, knocking out three or four of the wooden slats and leaving a hole in the deck. When Monohon walked onto the deck panel containing the hole later that day, the panel collapsed and Monohon fell 10 feet to the concrete walkway below. Monohon alleged that he sustained back, hip, and shoulder injuries as a result of the fall.
The parties disputed the exact cause of the deck collapse at trial. Monohon's expert witness testified that the failure of the wooden ledger below the deck caused the collapse.1 Antilla's expert testified there was insufficient evidence to determine the cause of the accident conclusively but that either the wooden ledger failed or the deck slats failed due to the hole the neighbor's guest caused earlier in the day.
Monohon sued Antilla alleging that she negligently failed to maintain the structural components of the deck in reasonably good repair and for failing to inspect and repair the deck before the accident. The trial court allowed Monohon to amend the pleadings to include a contract claim but refused to give an instruction relating to any claim under the rental agreement.
At trial, Monohon presented his case as a negligence action and proposed instructions based on a duty to repair arising out of the rental agreement and common law. Proposed instruction 11 read:
Liisa Antilla, the property owner, owed her tenants and their guests, including Mike Monohon, a duty to exercise ordinary care to maintain the outdoor deck structure in a reasonably safe condition.
Construing Monohon's proposed instruction as a new legal theory based on breach of contract, the trial court rejected it.2 The court indicated that the landlord's potential duty arising out of the landlord-tenant agreement was `a matter that could be addressed by the {c}ourt by a directed verdict or by summary judgment' and if the jury came back with a defense verdict on liability, the court might send them out for damages. Report of Proceedings (Jun. 24, 2004) (Colloquy Re: Instructions) at 2. According to that understanding, the court admitted a copy of the rental agreement into evidence but excluded it from jury consideration as irrelevant to the latent defect negligence theory.3
Instead, the trial court gave the jury a general negligence instruction.4 It further instructed the jury over Monohon's objection that:
A landlord is liable to a social guest of a tenant for harm caused by:
(1) latent or hidden defects in the leasehold;
(2) of which the landlord had actual knowledge or should have been able to identify and which were unknown to the tenant;
(3) and of which the landlord failed to inform the tenant.
The trial took place in June 2004, and the jury found Antilla not negligent. The jury also found Buchanan negligent but returned no verdict as to damages.5
We review jury instructions in their entirety, and they are sufficient if they (1) permit each party to argue his theory of the case; (2) are not misleading to the jury; and (3) when read as a whole, properly inform the trier of fact of the applicable law. Caldwell v. Wash. Dep't of Transp., 123 Wn. App. 693, 697, 96 P.3d 407 (2004). We review the jury instructions given at trial de novo and an error is reversible when it prejudices a party. Cox v. Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000). An error is not prejudicial unless it presumptively affects the trial's outcome. Caldwell, 123 Wn. App. at 696-97. Even if misleading, an instruction is not grounds for reversal unless prejudice is shown. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). We presume, however, that a clear misstatement of the law is prejudicial. Keller, 146 Wn.2d at 249-50.
Both parties are entitled to have the trial court give instructions on their theories of the case, provided there is substantial evidence to support them even if the parties have inconsistent legal theories. A.E. Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 135, 606 P.2d 1214 (1980). So long as the instructions actually given are sufficient, it is not an error to refuse to give cumulative or detailed augmenting instructions. Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996). The number and specific language of instructions are matters left to the trial court's discretion, which we review for abuse of discretion. Douglas v. Freeman, 117 Wn.2d 242, 256, 814 P.2d 1160 (1991), Herring v. Dep't of Soc. & Health Servs. 81 Wn. App. 1, 22, 914 P.2d 67 (1996).
In Washington, a landlord who explicitly covenants to repair and maintain may be liable for negligent performance or nonperformance of that covenant. Mesher v. Osborne, 75 Wn. 439, 446, 134 P. 1092 (1913). Division Three of this court has also acknowledged a cause of action for damages for a breach of an implied warranty of habitability in residential leases. Lian v. Stalik, 106 Wn. App. 811, 822, 25 P.3d 467 (2001). Antilla expressly contracted in a rental agreement to `{m}aintain all structural components in good repair.' Ex. 54. Monohon argues that the trial court erred by not instructing the jury that Antilla had a duty to exercise ordinary care to maintain the outdoor deck structure in a reasonably safe condition. Monohon argues that this duty arose from the rental agreement or from an implied warranty of habitability. We do not address Monohon's claim under an implied warranty of habitability because we resolve the matter under the agreement. Because Washington recognizes a landlord's duty under an express covenant to repair, and the instructions actually given were misleading, the trial court erred in refusing to give Monohon's proposed instruction.
Monohon asserts that the contractual duty to maintain the structure gave rise to a duty to keep the deck reasonably safe. The existence of a duty is initially a question of law. Brown v. Hauge, 105 Wn. App. 800, 805, 21 P.3d 716 (2001); Howard v. Horn, 61 Wn. App. 520, 523, 810 P.2d 1387, review denied, 117 Wn.2d 1011 (1991). A tenant may maintain an action against a landlord on three premises: the rental agreement, common law, or the Residential Landlord-Tenant Act (RLTA). Dexheimer v. CDS, Inc., 104 Wn. App. 464, 470, 17 P.3d 641 (2001), Howard, 61 Wn. App. at 522-23. For Monohon to prevail, one of these bases must give rise to a duty to maintain the deck such that failure to give an instruction was prejudicial error.
A landlord is generally not liable for personal injuries to the tenant or his guest for injuries caused by a defective condition in the premises. Brown, 105 Wn. App. at 804. But where a landlord has made an explicit covenant to repair or maintain the premises, a landlord may be held liable for negligent performance or negligent nonperformance of that duty. Mesher, 75 Wn. at 446; Teglo v. Porter, 65 Wn.2d 772, 774 399 P.2d 519 (1965) (citing Mesher favorably); Brown, 105 Wn. App. at 804. Because the duty arises out of contract, the contract defines the extent of the duty owed. Brown, 105 Wn. App. at 804.
In determining the parameters of landlord tort liability arising from performance of contract duties, the court determines if the parties understood and intended that the obligation for repair and maintenance rested primarily on the landlord. Teglo, 65 Wn.2d at 776. The duty to repair and maintain includes a duty to make reasonable inspections for defects. Estep v. Sec. Sav. & Loan Soc'y, 192 Wash. 432, 438, 73 P.2d 740 (1937) (citing Johnson v. Dye, 131 Wash. 637,...
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