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Ray v. Clark12/26/2000
This case stems from a fall taken by an 18-month-old off an apartment unit's second floor balcony. The child and her mother, who were the tenant's invitees, sued the landlord in tort. They alleged that the landlord had a duty under the lease agreement to keep the premises in repair and that he failed to repair the balcony after agreeing to do so.
The trial court granted summary judgment in favor of the landlord. We hold that a duty to repair may be created by a lease covenant and a promise to repair, and there is a genuine issue of material fact as to whether the landlord promised to repair the balcony. Accordingly, we reverse and remand for trial.
Facts
Natasha Charging Hawk was 11 months old when she fell off the second- floor balcony of a two-story apartment rented by her aunt, Susanne Leading Fighter. At the time of the accident, most of the balcony posts were four inches apart; four of the posts, however, were eight inches apart. Rodney Ray, guardian ad litem for Natasha, and Natasha's mother, Claudette Charging Hawk, filed a complaint against apartment owner Leo Clark, alleging that the eight-inch spacing between the balcony posts created a dangerous condition that Clark promised but failed to remedy, and that Clark was therefore liable for Natasha's fall.
The trial court dismissed the case on Clark's motion for summary judgment and denied Charging Hawk's motion for reconsideration. The parties presented the following evidence below.
Leading Fighter and Clark executed a one-year lease for the apartment on March 6, 1997. Leading Fighter and her five children had been living in the apartment since October 1996 with the previous tenant, June McClure. During that time, all of the balcony posts were eight inches apart.
McClure testified that she informed Clark verbally and in writing of the problem with the spacing between the posts. He told her he would 'fix the problem shortly,' but he never followed through. McClure filed a complaint with the King County Environmental Division, Department of Development and Environmental Services (DES) on November 4. Following inspection, the DES issued Clark a Notice of Violation on December 2. One of the code violations was listed as: 'Broken, deteriorated and unsecured portions of exterior deck guardrail assembly including missinig {sic} stile in Unit D.'
At some point thereafter, Clark directed his maintenance man, Ken Teague, to replace the balcony rail cap. In the process of doing so, Teague filled in the spaces between some, but not all, of the pre-existing posts. Clark testified that he directed Teague to replace only the railing cap, and that Teague filled the spaces on his own initiative, although admittedly with Clark's consent.
DES Code Enforcement Officer William Turner reinspected the apartment on March 5, 1997, and found it to be in 'reasonable compliance.' The DES issued Clark a Notice of Satisfaction on March 11.
Leading Fighter executed a lease for the apartment on March 6. Leading Fighter testified that when she moved in, she told Clark of her concern that one of her children might fall off the balcony and asked Clark whether he planned to finish repairing it. Clark responded that it would be done as soon as Teague had the time and materials. Leading Fighter asked Teague the same question, who told her that he would complete it when Clark gave him the money for the materials. Leading Fighter asked Clark about the balcony again in April.
Clark testified that he inspected the balcony and saw that the spaces between four of the posts had not been narrowed, but said he never instructed Teague to install the remaining po
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