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Wilbanks v. Ombrellaro4/19/2005
e defect at the time they leased the house.
Restatement (Second) of Property Claims
Ms. Wilbanks' argument is that the defective air duct created a dangerous condition. And under the Restatement (Second) of Property sec. 17.6 (1977), the Ombrellaros are liable if they failed to exercise reasonable care to timely discover and remedy the dangerous condition. Here, the Ombrellaros lived in the house for four years. They therefore had four years to discover the problem. Ms. Wilbanks advised the Ombrellaros in January 1999 and on March 12 of a problem in the home. The Ombrellaros respond that liability under the Restatement requires that the Ombrellaros either knew or could have known of a dangerous condition in the exercise of reasonable care. And Ms. Wilbanks has failed to show this. Moreover, Ms. Wilbanks has not shown that the condition was 'dangerous.'
A landlord is liable for harm caused to the tenant where the tenant establishes '(1) that the condition was dangerous, (2) that the landlord was aware of the condition or had a reasonable opportunity to discover the condition and failed to exercise ordinary care to repair the condition, and (3) that the existence of the condition was a violation of an implied warranty of habitability or a duty created by statute or regulation.' Lian v. Stalick, 115 Wn. App. 590, 595, 62 P.3d 933 (2003) (emphasis added).
But again Ms. Wilbanks has not shown that the Ombrellaros had actual knowledge of the defective condition, that they had a reasonable opportunity to discover it, or that they failed to exercise ordinary care to repair it.
Unlawful Exclusion or Retaliation
Ms. Wilbanks did not raise the issues of unlawful exclusion or retaliation in the trial court. We will only review those arguments that were raised before the trial court. RAP 2.5(a); Lindblad, 108 Wn. App. at 207. This question, then, is not properly before us. RAP 2.5(a).
We affirm the summary dismissal of the complaint.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, J.
WE CONCUR:
Kato, C.J.
Brown, J.
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