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Wilbanks v. Ombrellaro4/19/2005
This is an appeal from the dismissal of a tenant's personal injury suit against her landlord. An improperly installed return air duct allowed insulation dust to flow into living areas. But when the landlord learned of the problem he hired a contractor who identified the defect and repaired it. We conclude it was repaired appropriately and timely under any of the legal theories advanced by the tenant. We therefore affirm the summary dismissal of the complaint.
FACTS
Richard and Karen Ombrellaro bought a new house in October 1994. They lived there until August 1998. The Ombrellaros then leased the house to Martha and Richard Wilbanks. Ms. Wilbanks told Ms. Ombrellaro in January 1999 that she thought there was something in the house making them sick. Ms. Wilbanks told Ms. Ombrellaro on March 12 that she found gray fibrous material throughout the house. She told Ms. Ombrellaro her daughter was sick and that the doctor recommended the air ducts in the house be inspected and cleaned. Mr. Wilbanks contacted the Ombrellaros on March 19 to again request that the air ducts be inspected and cleaned. Mr. Ombrellaro agreed and an appointment was made for Monday, March 22--the earliest available appointment. Chris Quinton inspected and cleaned the air ducts on March 22. He identified the problem during his inspection. The return air duct had not been separately sealed and isolated from the insulation in the attic when the house was built. This allowed fibers from the blown-in insulation to enter the ventilation system. Mr. Quinton returned the following day, March 23, and sealed the defective air duct. The Wilbanks sued the Ombrellaros and several others. The Ombrellaros moved for summary judgment and the trial court granted the motion.
DISCUSSION
We review the trial court's grant of summary judgment de novo. Tucker v. Hayford, 118 Wn. App. 246, 251, 75 P.3d 980 (2003). We view the documents and evidence designated in the trial court order in the light most favorable to the nonmoving party. RAP 9.12; Tucker, 118 Wn. App. at 251. Summary judgment will be granted when there are no genuine issues of material fact and the issues presented can be resolved as a matter of law in favor of the moving party. CR 56(c); Tucker, 118 Wn. App. at 251. Issues of material fact must be shown by actual evidence and not bare assertions. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000). Ms. Wilbanks challenges several court orders that granted summary judgment in favor of the Ombrellaros, Safeco Insurance Company of America, and Safeco Corporation. She, however, only assigns error to and briefs her challenge to the order that granted the Ombrellaros' motion for summary judgment. This is the only order we will then address on appeal. Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wn. App. 609, 620, 1 P.3d 579 (2000).
Residential Landlord Tenant Act
Ms. Wilbanks argues the defect in the air duct was a defect that was imminently hazardous to life. Therefore, the Ombrellaros were required to make the necessary repairs within 24 hours and failed to do so. She also contends that even if the court were to accept the Ombrellaros' argument that they had 10 days to commence repairs, they still failed to meet the deadline. The Ombrellaros respond that they did not fail to maintain the property under the Residential Landlord-Tenant Act (RLTA). First, Ms. Wilbanks did not provide the Ombrellaros with written notice of a defect as required by the RLTA. Second, the Ombrellaros commenced repairs within 10 days of Ms. Wilbanks' oral complaint and the repairs were completed promptly. The 10- day period did not begin until March 12, 1999. Ms. Wilbanks was requir
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