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Tucker v. Hayford9/4/2003
Concurring: Frank L Kurtz, Kenneth H. Kato
OPINION PUBLISHED IN PART
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. 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) 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' filter 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 dismiss
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