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Monohon v. Antilla10/25/2005
press covenant to repair, and the instructions actually given were misleading, the trial court erred in refusing to give Monohon's proposed instruction.
A. Duty to Keep Structure Reasonably Safe
Monohon asserts that the contractual duty to maintain the structure gave rise to a duty to keep the deck reasonably safe. The existence of a duty is initially a question of law. Brown v. Hauge, 105 Wn. App. 800, 805, 21 P.3d 716 (2001); Howard v. Horn, 61 Wn. App. 520, 523, 810 P.2d 1387, review denied, 117 Wn.2d 1011 (1991). A tenant may maintain an action against a landlord on three premises: the rental agreement, common law, or the Residential Landlord-Tenant Act (RLTA). Dexheimer v. CDS, Inc., 104 Wn. App. 464, 470, 17 P.3d 641 (2001), Howard, 61 Wn. App. at 522-23. For Monohon to prevail, one of these bases must give rise to a duty to maintain the deck such that failure to give an instruction was prejudicial error.
A landlord is generally not liable for personal injuries to the tenant or his guest for injuries caused by a defective condition in the premises. Brown, 105 Wn. App. at 804. But where a landlord has made an explicit covenant to repair or maintain the premises, a landlord may be held liable for negligent performance or negligent nonperformance of that duty. Mesher, 75 Wn. at 446; Teglo v. Porter, 65 Wn.2d 772, 774 399 P.2d 519 (1965) (citing Mesher favorably); Brown, 105 Wn. App. at 804. Because the duty arises out of contract, the contract defines the extent of the duty owed. Brown, 105 Wn. App. at 804.
In determining the parameters of landlord tort liability arising from performance of contract duties, the court determines if the parties understood and intended that the obligation for repair and maintenance rested primarily on the landlord. Teglo, 65 Wn.2d at 776. The duty to repair and maintain includes a duty to make reasonable inspections for defects. Estep v. Sec. Sav. & Loan Soc'y, 192 Wash. 432, 438, 73 P.2d 740 (1937) (citing Johnson v. Dye, 131 Wash. 637, 640, 230 P. 625 (1924)). In addition, the duty under a covenant to repair runs to 'the tenant, a member of his family, or a guest.' Teglo, 65 Wn.2d at 774; see also Sundee v. Tollett, 2 Wn. App. 640, 642, 469 P.2d 212 (1970) (indicating the landlord is liable to a third person if he would be liable to the tenant); Rossiter v. Moore, 59 Wn.2d 722, 723, 370 P.2d 250 (1962) (allowing a social guest of a tenant to assert a claim for breach of express agreement to repair).
In this case, it is undisputed that Antilla covenanted to maintain all structures on the premises in good repair. Both Antilla and Buchanan understood that the contract allocated responsibility for maintenance and repair of the deck to Antilla. Accordingly, Monohon was entitled to an instruction describing Antilla's duty to maintain the deck.
The next issue is whether Monohon's proffered instruction accurately reflected the law. The proponent bears the burden of providing the court with appropriate instructions correctly stating the law. A.E. Egede-Nissen, 93 Wn.2d at 135. Monohon's instruction indicated that Antilla had 'a duty to exercise ordinary care to maintain the outdoor deck structure in a reasonably safe condition.' CP at 49. Antilla now asserts that this misstates the law in two ways. First, she argues that the language 'reasonably safe condition' refers only to the landlord's duty to maintain common areas. Br. of Resp't at 35. Second, Antilla argues that any such duty to repair requires notice by the tenant. Neither argument is compelling.
As the rental agreement defines the scope of the landlord's duty we look there to determine its scope. Brown, 105 Wn. App. at 804. In interpretin
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