 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wilbanks v. Ombrellaro4/19/2005
Ms. Wilbanks argues that the lease agreement required the Ombrellaros to maintain the property in a condition that was fit for habitation--including the heating system. And they breached the lease agreement when they failed to timely commence repairs.
A landlord is generally not liable for injuries caused by a defect in the premises unless he contracts to maintain and repair the property and he fails to do so. Brown v. Hauge, 105 Wn. App. 800, 804, 21 P.3d 716 (2001). The landlord must fail to take reasonable care to repair the property once he has been notified that repairs are needed. Id.; Tucker, 118 Wn. App. at 252; Restatement (Second) of Torts sec. 357 (1965).
'The lessor's duty to repair . . . is not contractual but is a tort duty based on the fact that the contract gives the lessor ability to make the repairs and control over them. . . . Unless the contract stipulates that the lessor shall inspect the premises to ascertain the need of repairs, a contract to keep the interior in safe condition subjects the lessor to liability if, but only if, reasonable care is not exercised after the lessee has given him notice of the need of repairs.'
Tucker, 118 Wn. App. at 252 (quoting Teglo v. Porter, 65 Wn.2d 772, 774-75, 399 P.2d 519 (1965)).
Ms. Wilbanks argues the Ombrellaros failed to exercise reasonable care under the lease agreement to remedy the problem. She concedes, however, that her claim for a breach of the lease agreement essentially mirrors her claim under the RLTA. And as we have already concluded, the Ombrellaros adequately remedied the situation within the time limits prescribed under the RLTA.
On this record, the Ombrellaros exercised reasonable care to perform the necessary repairs under the lease agreement.
Ms. Wilbanks raises additional arguments in her brief with regard to a leaky pipe and certain sections of the lease that she believes are unenforceable. Appellant's Br. at 11, 23-25. But these arguments were not raised before the trial court and are not appropriate for appellate review. RAP 2.5(a); Lindblad v. Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1 (2001).
The court properly dismissed these claims.
Common Law Causes of Action
Ms. Wilbanks argues that she called the Ombrellaros on March 12, 1999 and informed them of a problem with the heating ducts. The Ombrellaros therefore had knowledge of the latent defect in the home. A landlord is liable under common law for harm caused to a tenant that is the result of ''(1) latent or hidden defects in the leasehold (2) that existed at the commencement of the leasehold (3) of which the landlord had actual knowledge (4) and of which the landlord failed to inform the tenant.'' Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P.2d 226 (1994) (emphasis added) (quoting Younger v. United States, 662 F.2d 580, 582 (9th Cir. 1981)). This does not require that the landlord seek out obscure defects. Tucker, 118 Wn. App. at 255. But the landlord is required to make his tenants aware of the defects he has knowledge of that would likely be undiscoverable. Id.
The Ombrellaros were not required to inspect the ventilation ducts or the air quality in the house on a regular basis. And they had no actual knowledge, nor could they have had any actual knowledge, of the problem. The Ombrellaros lived in the house for four years without a problem. Ms. Wilbanks moved into the house in August 1998 and did not notice any gray fibers until late November. She told the Ombrellaros on March 12, 1999, of the problem. There is, then, no evidence that the Ombrellaros had actual knowledge of the defective air duct or that they should have known of th
Page 1 2 3 4 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|