Tucker v. Hayford

• Decision Date: 04 September 2003
• Docket Number: No. 21544-0-III.,21544-0-III.
• Citation: 118 Wash.App. 246,75 P.3d 980
• Court: Washington Court of Appeals
• Parties: Don TUCKER and Shalee Miller, individually; Shalee Miller, as the guardian and parent of Alan Miller and Robert Miller, both minors; and Don Tucker and Shalee Miller, as the guardians and parents of Cheyanne Tucker, a minor, Appellants, v. Robert HAYFORD and Dakota Hayford, husband and wife, Respondents.

75 P.3d 980

118 Wash.App. 246

Don TUCKER and Shalee Miller, individually; Shalee Miller, as the guardian and parent of Alan Miller and Robert Miller, both minors; and Don Tucker and Shalee Miller, as the guardians and parents of Cheyanne Tucker, a minor, Appellants, v. Robert HAYFORD and Dakota Hayford, husband and wife, Respondents.

No. 21544-0-III.

Court of Appeals of Washington, Division 3, Panel Nine.

September 4, 2003.

George B. Fearing, Kennewick, WA, for Appellants.

Jeffrey T. Sperline, Rettig, Osborne, Forgette, Kennewick, WA, for Respondents.

OPINION PUBLISHED IN PART

SWEENEY, J.

We again note that a claim for personal injuries by a tenant can be premised on three distinct legal theories: contract (a rental agreement), common law obligations imposed on a landlord, and the Washington Residential Landlord-Tenant Act of 1973 (Landlord-Tenant Act), chapter 59.18 RCW. In Dexheimer v. CDS, Inc.¹ we concluded that the remedies available to a tenant under the Landlord-Tenant Act were limited to those outlined in the statute. We were wrong.

Here, the tenants claim that they became sick from drinking contaminated well water provided as part of their tenancy. The trial judge dismissed all of their causes of action—contract, Landlord-Tenant Act, and common law—concluding that the Landlord-Tenant Act limited all rights to those specifically enumerated in the act. We conclude that the tenants' showing on summary judgment is sufficient to support causes of action based on contract, the Landlord-Tenant Act, and the common law. We therefore reverse the summary dismissal of their claims.

FACTS

Robert Hayford bought a lot and mobile home in Kennewick, Washington from Mike Kirby in 1994. A domestic well supplied water to the home.

The well water was tested on December 8, 1993. On March 15, 1994, the Benton Franklin District Health Department wrote to Mr. Kirby that: (1) the nitrate level of the well water was 8.8 mg/L;² (2) the well was free of bacterial contamination; (3) the sanitary seal was improperly installed and maintained; and (4) chemicals were stored within 100 feet of the well. And "to protect and improve" the water system, the health department recommended that: (1) the sanitary seal be properly installed; and (2) the chemicals be stored at least 100 feet from the well. The health department also recommended that the well be tested yearly:

The Benton-Franklin District Health Department recommends that all wells be tested at least once a year for bacteriological quality and nitrates be tested every three years. The preceding information should be useful to you in evaluating the needs of your water system. A pamphlet on water quality has been enclosed for your information.

Clerk's Papers (CP) at 181.

Mr. Hayford "thumbed through" the report but depended on his real estate agent to call any problems to his attention. CP at 185. And the agent apparently did not.

Mr. Hayford leased the home to Don Tucker and Shalee Miller (now Tucker) in October of 1998. Mr. and Ms. Tucker asked if the well water was drinkable. Mr. Hayford said it was as long as a "Brita" filter³ was used. He said that the nitrates were a bit high.

The Tuckers have four children, one was born after they moved out of the home. The Tuckers signed a written residential lease prepared by Mr. Hayford. They ultimately extended the tenancy through August 1, 2000. The Tucker family all became ill. The family's pediatric nurse practitioner suggested that they test their well water. The test, dated March 28, 2000, showed bacteria in the water. The Tuckers told Mr. Hayford. He had the well repaired and that solved the problem.

The Tuckers moved out of the home on May 15, 2000. They sued Mr. Hayford for damages for personal injury arising from contaminated water. Mr. Hayford moved for summary judgment. The trial court concluded that the landlord's legal obligations were ultimately governed by the Landlord-Tenant Act. And, relying on our decision in Dexheimer; the judge concluded that the Tuckers were not entitled to personal injury damages under the act. He also concluded that Mr. Hayford had no notice of any defect. And he dismissed the Tuckers' complaint.

DISCUSSION

The Tuckers sued for damages based on their contract (obligation to perform major maintenance and repair, and covenant of quiet enjoyment); violation of the Landlord-Tenant Act; and negligent misrepresentation as to the water quality. We evaluate the viability of each claim.

STANDARD OF REVIEW

This is an appeal from summary judgment. So we engage in the same inquiry as the trial court. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994). Summary judgment is appropriate "if the pleadings, depositions, ... [and] affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). "A material fact is one upon which the outcome of the litigation depends." Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993). And we consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Mountain Park, 125 Wash.2d at 341, 883 P.2d 1383. The burden is on the moving party to prove no genuine issue of material fact exists. Jacobsen v. State, 89 Wash.2d 104, 108, 569 P.2d 1152 (1977).

CONTRACT CLAIMS

Obligations Imposed by This Contract. Brown v. Hauge spells out the contract exception to the general rule of nonliability:

The tenant may recover for personal injuries caused by the landlord's breach of a repair covenant only if the unrepaired defect created an unreasonable risk of harm to the tenant. The Restatement (Second) of Torts § 357 (1965) provides that the lessor of land is liable if (a) the lessor has contracted to keep the land in repair; (b) the disrepair creates an unreasonable risk that performance of the lessor's agreement would have prevented; and (c) the lessor fails to exercise reasonable care in performing the agreement.

Brown v. Hauge, 105 Wash.App. 800, 804, 21 P.3d 716 (2001) (citation omitted). The contract defines the extent of the duty when a landlord's duty arises out of a covenant. Id.

Both the trial court and Mr. Hayford, here on appeal, rely on our decision in Brown for the proposition that the landlord must have notice of the "defect" before he is subject to liability. Mr. Hayford argues, and the trial court agreed, that Brown is a general statement of the law on notice. We do not read our decision in Brown so broadly.

In Brown the landlord had notice of the tenant's problem (a high door sill). The holding in Brown turned on the nature of the claimed defect, not notice. The contract required the landlord to keep the common areas "reasonably clean and safe from defects increasing the hazards of fire or accident." Brown, 105 Wash.App. at 804, 21 P.3d 716. So, the court reasoned, the landlord was only obligated to do something about the door sill if it was unsafe. All agreed the door sill was inconvenient for the tenants, but nobody— not the landlord, the tenants, nor a state agent who inspected the premises for a residential adult care facility license—considered it unsafe. Id. at 802, 803, 805, 21 P.3d 716. The court ultimately held that the landlord would not be liable under the contract's safety provision because the door sill was not then unreasonably unsafe. Id. at 805, 21 P.3d 716.

Brown did rely on Teglo v. Porter.⁴ Brown, 105 Wash.App. at 804, 21 P.3d 716. Teglo in turn adopted portions of the Restatement of Torts which are relevant to the claims here:

"The lessor's duty to repair ... is not contractual but is a tort duty based on the fact that the contract gives the lessor ability to make the repairs and control over them. ... Unless the contract stipulates that the lessor shall inspect the premises to ascertain the need of repairs, a contract to keep the interior in safe condition subjects the lessor to liability if, but only if, reasonable care is not exercised after the lessee has given him notice of the need of repairs."

Teglo v. Porter, 65 Wash.2d 772, 774-75, 399 P.2d 519 (1965) (emphasis added) (quoting RESTATEMENT OF TORTS § 357 cmt. a (1934)).

Notice then under this provision of the Restatement becomes an issue when the particular condition under consideration is inside the residence where the landlord has no right to enter. But that is not the case here. The source of water here was an outside well, which the landlord had physical access to. Actual notice is not then required.

Here the lease includes (1) an express covenant of quiet enjoyment⁵ and (2) requires that the lessor maintain and repair the leased premises.⁶

So the factual question is the usual threshold question where the claim has been dismissed on motion—whether the condition of this well interfered with their quiet enjoyment of the home, or whether the well required "major maintenance" as spelled out in the lease agreement.

Quiet Enjoyment. No Washington case directly addresses the impact of drinking water on one's quiet enjoyment of his home. Washington does, however, recognize the relationship of water and habitability. In State ex rel. Andersen v. Superior Court, the court held that without water, a property is uninhabitable. State ex rel. Andersen v. Superior Court, 119 Wash. 406, 407-08, 205 P. 1051 (1922). And in Mitchell v. Straith, the court held that a water system that used an "unusual" approach, but did not affect the water quality, did not render the property uninhabitable. Mitchell v. Straith, 40 Wash. App. 405, 412, 698 P.2d 609 (1985). And in Mathes v. Adams, as the Tuckers point out, the Montana court ultimately held that unsafe drinking water renders a rental property uninhabitable. Mathes v. Adams, 254 Mont. 347, 353, 838 P.2d 390 (1992).

Other jurisdictions have also held that a property without potable water is uninhabitable.⁷

It is well settled that unsafe...