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Coulter Property Management Inc. v. James12/17/1998
at 575. Finally, because the Court of Appeals earlier had determined that tenant "had no legal basis for a claim under the RLTA," the court refused to consider tenant's cross-appeal regarding attorney fees. Ibid.
On review, tenant makes three arguments concerning the Restatement's continuing applicability. First, he argues that, by framing the "pertinent question" to be whether landlord should have known about the defect, 138 Or App at 574, the Court of Appeals failed to capture the total import of section 358 and landlord's proposed instructions. Tenant is correct. Applying section 358 and using landlord's instructions would have required tenant to prove, among other things, that landlord knew or should have known of the defective railing and that tenant himself neither knew nor should have known about the defect. The Court of Appeals' analysis, therefore, was incomplete. Agreeing with tenant on this point, however, does not advance meaningfully our effort to answer the question on review, namely, should the court continue to follow the approach of section 358 in landlord-tenant cases?
Tenant next argues that we should disavow the Restatement as a statement of the common law in Oregon, because the standard that the Restatement espouses is inconsistent with the habitability provisions of the RLTA, which the legislature enacted after the court adopted section 358. With respect to the interplay between the RLTA and existing common law, this court stated in Davis:
"Given the lack of contrary legislative intent, a tenant may choose to maintain claims of common-law negligence and statutory liability against a landlord in the same action." 327 Or at 592 (citing Bellikka v. Green, 306 Or 630, 638, 762 P2d 997 (1988)).
See also Jones v. Bierek, 306 Or 42, 46, 755 P2d 698 (1988) (rejecting argument that "the Legislative Assembly intended RLTA to be the exclusive source of a tenant's remedies against a landlord"). Accordingly, simply because the RLTA imposes certain affirmative duties on landlords does not necessarily mean that those duties automatically supplant the common law. Finally, tenant argues that we should reject section 358, because the legal standard that that section espouses includes elements of traditional contributory negligence and implied assumption of the risk, concepts that the legislature has abolished. In response, landlord contends that section 358
"merely places the burden on the tenant, as the person in the best position to know after the tenancy commences, to become aware of defects in the tenant's unit and to notify the landlord of any defects when they are discovered."
We agree with tenant. We hold that section 358 of the Restatement (Second) of Torts (1965) no longer accurately states the common law of Oregon.
As an initial matter, accepting tenant's argument necessarily requires that we reconsider a prior common-law rule. Although the court has changed common-law rules from time-to-time, see Hammond v. Central Lane Communications Center, 312 Or 17, 26 n 7, 816 P2d 593 (1991) (collecting cases), it "will not lightly overturn precedent, especially when the precedent has been followed for a long time," id. at 26. This court will reconsider a court-created rule or doctrine if "surrounding statutory law or regulations have altered some essential legal element assumed in the earlier case." G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 (1988) (setting out other circumstances as well). See also Heino v. Harper, 306 Or 347, 373-74, 759 P2d 253 (1988) (following analysis in abolishing doctrine of inter-spousal immunity); Dahl v. BMW, 304 Or 558, 567-68, 748 P2d 77 (1987) (enactment of compa
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