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Monohon v. Antilla10/25/2005
g a contract, the parties' intent controls. Mayer v. Pierce County Med. Bureau, Inc., 80 Wn. App. 416, 420, 909 P.2d 1323 (1995). Here, both parties agree that it was Antilla's responsibility under the contract to keep the structure safe.
Antilla asserts that the duty to keep a structure reasonably safe applies only to common areas. She notes that the proposed instruction follows the Washington pattern jury instruction for common area duty and the language of the RLTA. The similarity between the duties is not enough to render the proposed instruction inaccurate. The landlord's liability for negligence is not mutually exclusive of her duty under landlord-tenant law. Rossiter, 59 Wn.2d at 725. The existence of an express covenant to repair carries the landlord's liability beyond common areas. See e.g., Aspon v. Loomis, 62 Wn. App. 818, 826, 816 P.2d 751 (1991) ('{A} landlord has no duty to repair non-common areas absent an express covenant to repair.') (emphasis added), review denied, 118 Wn.2d 1015 (1992). So long as the parties intended Antilla to maintain the deck in a reasonably safe condition, Monohon's proposed instruction is not an incorrect statement of law even if it expanded the landlord's common law duty.
Moreover, there is support for interpreting covenants to maintain and repair to require 'reasonably safe' premises. In Teglo, the court considered an oral covenant to repair and maintain and described the duty under such a covenant as an obligation to keep the premises in a 'reasonably safe condition for the intended use.' Teglo, 65 Wn.2d at 776.
In Brown, the court indicated that an unrepaired defect constituted a breach of a covenant to repair where the defect created an unreasonable risk of harm to the tenant. Brown, 105 Wn. App. at 804. Under either case, Monohon's instruction fairly states the law.
Antilla also asserts that before any duty arises in tort based on the covenant to repair, the tenant must give notice of a defect. We disagree. Division Three recently addressed the notice issue in Tucker v. Hayford, 118 Wn. App. 246, 75 P.3d 980 (2003). There, the court addressed a summary judgment motion regarding whether a landlord had to be on notice that well water contained bacteria. Tucker, 118 Wn. App. at 250. In analyzing Teglo, the court noted that ''the lessor's duty to repair . . . is a tort duty based on the fact that the contract gives the lessor ability to make repairs and control over them.'' Tucker, 118 Wn. App. at 252 (quoting Teglo, 65 Wn.2d at 774). Therefore, the court reasoned, actual notice by the tenant is required only for conditions inside the residence where the landlord has no right to enter. Tucker, 118 Wn. App. at 252-53. When the landlord has physical access to the structure, she has a duty to make reasonable inspections and repairs. Estep, 192 Wn. at 438.
Here, the deck was accessible to Antilla and she regularly inspected it with or without the tenants' permission. Moreover, Buchanan testified at trial that he gave Antilla notice of dry rot in the deck. Accordingly, the proposed instruction accurately described her legal duty to maintain the deck structure even without including an element regarding actual notice by the tenant.
Whether Antilla's actions breached her duty to maintain the structure is a question of fact for the jury. Brown, 105 Wn. App. at 803. At a minimum, however, Monohon was entitled to an instruction accurately describing Antilla's legal duty under the rental agreement and his proposed instruction was sufficient. The trial court recognized this in considering the motion for a new trial, noting that Antilla owed Monohon a duty 'to not negligently breach the covenant to keep structur
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