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Coulter Property Management Inc. v. James12/17/1998
he managers of the apartment complex where Mr. James lived, may by liable to Mr. James under this claim of negligence only if all of the following conditions are proven:
"1. First, the condition that Mr. James is complaining of, that is the deck and railing, must involve an unreasonable risk of physical harm to the tenant;
"2. Second, Mr. James, as a tenant, must not know or have reason to know of the condition or the risk involved;
"3. Third, Coulter Property Management, as managers of the apartment complex, must know of or have reason to know of the condition and realize or should realize the risk involved; and
"4. Fourth, the apartment manager must have reason to expect that the tenant will not discover the condition or realize the risk.
"Under a common law claim for negligence, a property manager does not have a duty to inspect the tenant's apartment for dangerous conditions. In order for a property manager to be liable for concealing or failing to disclose an unreasonably dangerous condition, it is not enough that the dangerous condition is one which might be discovered by a reasonable inspection of the premises. * * *"
The circuit court rejected landlord's proposed instructions and instead gave a general instruction on negligence as follows:
"In general, it is the duty of everyone in our society to use reasonable care to avoid injury to themselves and to others. Reasonable care is that care which persons of reasonable prudence exercise in the conduct of their own affairs.
"Negligence is the doing of some act which a reasonably prudent person would not do or the failure to do something which a reasonably prudent person would do under similar or -- under the same or similar circumstances to avoid injury . The care should be in keeping with that required at the time and circumstances of the incident in question, not in the light of hindsight."
The jury found for tenant, awarding him $32,892.60 in economic damages and $333,000.00 in non-economic damages. Landlord appealed from the judgment entered on the jury's verdict and from a supplemental judgment awarding tenant attorney fees under the RLTA and costs. Tenant cross-appealed from the supplemental judgment, challenging the sufficiency of the trial court's award of attorney fees.
The Court of Appeals reversed and remanded, concluding that the circuit court erred by failing to instruct the jury based on the Restatement:
"In sum, the trial court erred in giving a standard negligence instruction instead of landlord's special instruction * * * which was based on section 358 of the Restatement. The pertinent question in this case is whether landlord had 'reason to know' about the allegedly dangerous condition of the balcony railing, specifically, whether landlord's annual inspections were negligently performed and as a result failed to uncover existing defects. However, because of the manner in which the court instructed the jury, that question was neither asked nor answered." Coulter Property Management, 138 Or App at 574. The Court of Appeals also concluded that, although the circuit court properly had struck tenant's RLTA claim, because landlord had no notice of the railing's defect, the trial court erred "when it allowed that same claim to go forward under a different label," i.e., negligence per se. Id. at 574-75. As noted, the premise underlying that ruling was incorrect. The Court of Appeals also held that the circuit court erred by refusing landlord's request to poll the jury as to each question on the special verdict form, rather than as to only the broader question whether each juror agreed with the verdict. Id.
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