Ray v. Clark12/26/2000
sts. He also testified that he neither received any complaints from Leading Fighter nor promised her that Teague would finish installing the posts.
On May 29, Leading Fighter's niece, Natasha, fell off the balcony to the ground below.
DISCUSSION
A. Standard of Review
We review the grant of a motion for summary judgment de novo and consider the facts in a light most favorable to the nonmoving party. Reynolds v. Farmers Ins. Co., 90 Wn. App. 880, 884, 960 P.2d 432 (1998). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c).
B. Landlord's Tort Liability Under Lease Covenant to Repair
Under traditional common law principles, a landlord is not liable to a tenant for personal injuries caused by a defective condition in the premises under the tenant's exclusive control. Sample v. Chapman, 7 Wn. App. 129, 132, 497 P.2d 1334 (1972); see also Teglo v. Porter, 65 Wn.2d 772, 773-74, 399 P.2d 519 (1965) ('{A}bsent agreement to the contrary or a fraudulent concealment of obscure defects, the maxim caveat emptor applies, and the tenant takes the demised premises as he finds them.'). There are various exceptions to this general rule, however, such that a landlord may be found liable for personal injuries to a tenant or invitee where: (1) the landlord fails to disclose the existence of a latent defect that existed at the commencement of the leasehold and of which the landlord had actual knowledge; (2) the landlord gratuitously undertakes to make repairs, but does so negligently; or (3) the landlord covenants to maintain the premises in good repair, but fails to do so or does so negligently. See, e.g., Thomas v. Housing Auth. of Bremerton, 71 Wn.2d 69, 74-75, 426 P.2d 836 (1967) (latent defect); Regan v. City of Seattle, 76 Wn.2d 501, 505-06, 458 P.2d 12 (1969) (gratuitous undertaking); McCourtie v. Bayton, 159 Wash. 418, 423, 294 P. 238 (1930) (covenant to repair). Charging Hawk argues that the latter exception applies. She contends that Clark, as the landlord, was bound by a covenant to repair under the lease, and that his failure to repair the balcony after promising to do so renders him liable for Natasha's fall.
Washington allows recovery for personal injuries caused by the landlord's breach of a repair covenant, provided the unrepaired defect created an unreasonable risk of harm to the tenant. 17 William B. Stoebuck, Washington Practice: Real Estate : Property Law sec. 6.37, at 345-46 (1995). A landlord is liable to third persons only if he would be liable to the tenant for the same injury . Sunde v. Tollett, 2 Wn. App. 640, 642, 469 P.2d 212, 41 A.L.R. 319 (1970).
The Supreme Court first articulated the principle of a tort duty emanating from a contractual relationship in Mesher v. Osborne, 75 Wash. 439, 446, 134 P. 1092 (1913). 'Where there is a general duty, even though it arises from the relation created by, or from the terms of the contract, and that duty is violated, either by negligent performance or negligent nonperformance, a landlord may be held as for a tort.' In Teglo, the Supreme Court further explained:
{W}here there is a covenant or agreement entered into, contemporaneously with commencement of the tenancy, whereby the landlord is to keep and maintain the premises in repair and the landlord acquires knowledge or notice of a condition, existing either before or arising during the tenancy, rendering the premises unsafe, and the tenant, a member of his family, or a gu
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