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Ray v. Clark12/26/2000
est, suffer personal injury therefrom, after a reasonable time for making the premises safe has elapsed from the time of the landlord's notice, then the landlord is liable in tort for the injuries sustained, absent contributory negligence. Teglo, 65 Wn.2d at 774.
The Restatement (Second) of Torts sec. 357, cited with approval by Teglo, 65 Wn.2d at 774, likewise recognizes landlord tort liability based on a covenant to repair. One of the rationales supporting this principle is that the landlord, by promising to repair, has induced the tenant to forego repairs of his or her own, and is thereby responsible for the consequences of his actions or failure to act. W. Page Keeton et al., Prosser and Keeton on Torts, sec. 62, at 444 (5th ed.1984).
In the instant case, the terms of the lease between Leading Fighter and Clark provide in pertinent part:
7. LANDLORD'S DUTY TO REPAIR AND MAINTAIN PREMISES
a. Warranty of Fitness.
Landlord warrants that the premises are clean and fit for human habitation and that Landlord will comply with all state and local laws regarding maintenance and repair of the premises.
b. Notice of Need for Repairs.
Tenant shall immediately notify Landlord of any needed repairs by sending written notice to the Landlord.
Charging Hawk asserts that section 7 is an 'explicit lease provision that warrants the premises fit for habitation and promises at least some level of repair and maintenance.' Thus, a duty under the contract arose when, at Leading Fighter's behest, Clark told her that he planned to finish repairing the balcony. Clark, on the other hand, contends that subsection 7.b. necessarily incorporates subsection 7.a., such that he is obligated to repair only those conditions that render the apartment uninhabitable or that do not comply with state and local laws. Clark maintains that the condition of the balcony did not meet either criteria, so he was under no obligation to repair a condition that did not need to be repaired.
We decline to adopt Clark's narrow reading of the lease. Section 7 sets forth an overarching duty upon the landlord to repair and maintain the premises. And each of the covenants within the section has independent significance. In other words, subsection 7.b. does not limit notice of 'needed repairs' to those that fall under subsection 7.a. only. One could envision a tenant notifying a landlord of a condition that was in need of repair, even though the condition did not render the apartment uninhabitable or was not in compliance with local laws.
Here, there is evidence that Clark had been notified of a previous tenant's (McClure's) concern with exposing children to a balcony with eight- inch spacing between the posts. Clark apparently promised to 'fix the situation' but failed to act until prompted by McClure's complaint to the DES and subsequent receipt of a notice of violation. At the time Leading Fighter executed the lease for the same apartment, Clark knew that four eight-inch gaps remained.
It is at this juncture, however, where the stories diverge. Leading Fighter testified that she asked Clark to finish repairing the balcony because she was concerned about her children's safety, and Clark told her that Teague would make the repairs when he had the money and/or materials.
Clark testified that he knew nothing of Leading Fighter's requests. If a trier of fact were to believe Leading Fighter's testimony, then Clark's promise to finish repairing the balcony created a concomitant duty to make those repairs. If the trier of fact believed otherwise, then Clark could not be held liable for promising to remedy a
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