There's a little puzzle question in the comments here, right at the end

Daily Development for Friday, July 12, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANT; WARRANTY OF HABITABILITY: A residential tenant may have tort remedies for personal liability claims based upon a statutory warranty of habitability, even if such claims are beyond those recited in the statute.

Lian v. Stalick, 25 P.3d 467 (Wash. App. 2001).

Tenant brought an action for damages relating to personal injuries sustained as a result of obviously decrepit, rotten, and inherently dangerous condition of steps. The Washington Court of Appeals, Division 3, reversed a lower court award of damages based on the Residential Landlord Tenant Act of the State of Washington, which limited remedies in the event of a landlord violation to a right to repair and set-off rent, to decrease rent based upon diminished value, to pay rent into a trust account, or to terminate tenancy.

The appeals court, however, went on to adopt the Restatement Second of Property Section 17.6 (1977), which attributes liability to a landlord for failure to exercise reasonable care in violation of an implied warranty of habitability (as provided in the RLTA) or violation of a duty created by statute or administrative regulation. This remedy was in contrast to previous Washington law, which would have limited landlord's liability to a tenant to harm caused by latent defects of which landlord had actual knowledge at the commencement of the leasehold, and of which the landlord failed to inform the tenant. The court remanded the damage issue for further consideration by the lower court.

Comment 1: Note that we don't need the warranty of habitability to make out this kind of case. Breach of ordinary building codes would appear to rise to the same level. Note also that this does not appear to be a "strict liability" standard. Although there appears to be some controversy about relying upon the implied warranty of habitability in imposing tort duties, where the warranty is a matter of legislative mandate, and the mandate is to maintain premises in a "safe" condition, it is difficult for the editor to understand why such a duty should not give rise to tort liability.

Comment 2: The case did not discuss the issue, and in fact affirmed the damages verdict, but it strikes the editor that where someone is injured by an obviously dangerous defect, it may be appropriate to allocate some of the cause of the injury to negligent conduct on the part of the plaintiff. Few, if any, jurisdictions, recognize contributory negligence as an absolute bar to liability, but wouldn't a comparative negligence measure be appropriate here?

Comment 3: The implied warranty of habitability requires knowledge, and it should be noted here that the tenant did not notify the landlord of the defect, but the court concluded that the landlord in fact was well aware of the defect. The court even concludes, on the basis of disputed testimony, that the landlord had made "desultory" attempts to repair the steps in the past.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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