* Donna Phillips, Appellant V. Kathleen Greco And John Doe Greco, Respondents

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FILED
1/16/2019
Court of Appeals
Division I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
DONNA PHILLIPS, a single individual,
Appellant,
V.
KATHLEEN GRECO and JOHN DOE
GRECO, a married couple, and their
marital community,
Res•ondent.
No. 75911-6-1
ORDER GRANTING MOTION
TO PUBLISH
The respondent, Kathleen Greco, has filed motion to publish. The appellant,
Donna Phillips, has filed an answer. A panel of the court has reconsidered its prior
determination not to publish the opinion filed for the above entitled matter on May 7,
2018 and has found that it is of precedential value and should be published; now,
therefore it is hereby
ORDERED that the written opinion filed May 7, 2018, shall be published and
printed in the Washington Appellate Reports.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DONNA PHILLIPS, a single individual,
Appellant,
V.
KATHLEEN GRECO and JOHN DOE
GRECO,a married couple, and their
marital community,
Respondent.
No. 75911-6-1
DIVISION ONE
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UNPUBLISHED OPINI04 v—orncorno
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FILED: May 7, 2018
APPELWICK, C.J. — Phillips brought a negligence action against her
boyfriend's landlord, Greco. Phillips sought to recover for foot injuries suffered
when she fell on the step to the back deck of her boyfriend's rental home. Phillips
argues that the trial court erred in granting summary judgment dismissal. She
asserts that the deck was a common area, Greco was negligent, and Greco owed
her a duty under the implied warranty of habitability. We affirm.
FACTS
In the early morning of April 30, 2012, Donna Phillips had just left the home
of her boyfriend, Ryan McGrath, when she realized that she had forgotten her cell
phone. She returned to the house and went around to the back. She placed her
left foot onto the one step leading up to the deck, the step broke, and her foot
plunged through the broken board, causing injury.
*--`
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No. 75911-6-1/2
The house was a single family residence with a mother in law unit. At the
time of the incident, McGrath and his roommate were renting the main house from
Kathleen Greco. Greco rented the mother-in-law unit to different tenants on a
separate lease. The mother-in-law unit had its own side entry off the carport and
its own backyard and patio area. The deck was attached to the main house, and
was only for the use of the tenants of the main house. The only shared area
between the main house and the mother-in-law unit was the carport. Phillips did
not live at the house.
On January 2, 2015, Phillips filed a negligence suit against Greco. Her
complaint alleged that Greco had breached her duty to maintain a safe and
habitable premises, and, as a result of Greco's negligence, she was severely
injured.
Greco filed a motion for summary judgment dismissal of Phillips's claims.
The trial court granted this motion. It found that (1) the deck was a noncommon
area,(2)the Restatement(Second) Property § 17.6(1977) has not been extended
to nontenants in Washington, and (3) the possessor, the tenant, was responsible
under Washington law.
Phillips filed a motion for reconsideration. The court denied the motion.
Phillips appeals.
DISCUSSION
I. Summary Judgment
Phillips first argues that the court erred in finding that Greco did not owe her
a duty of care, asserting that the deck was a common area. And, she argues that
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No. 75911-6-1/3
Greco was negligent after she had notice of the deck's condition. Alternatively,
she argues that the court erred in finding that Greco did not owe her a duty under
the implied warranty of habitability.
We review summary judgment orders de novo, considering the evidence
and all reasonable inferences from the evidence in the light most favorable to the
nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).
Summary judgment is appropriate only when no genuine issue exists as to any
material fact and the moving party is entitled to judgment as a matter of law. Id.
A cause of action for negligence requires the plaintiff to establish (1) the
existence of a duty owed,(2) breach of that duty, (3) a resulting injury, and (4) a
proximate cause between the breach and the injury. Tincani v. Inland Empire
Zoological Soc`y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). The threshold
determination of whether the defendant owes a duty to the plaintiff is a question of
law. Id. at 128.
A. Duty of Care
Phillips first argues that Greco owed a duty because the deck was a
common area. In support of her argument, she states that "the deck was
permanently affixed to the home" and it "cannot be avoided to reach the backyard,
garage area, and back door that leads into the main home." Alternatively, she
argues that Greco owed her a duty because she had notice that the deck was
dangerous.
A landlord owes no greater duty to the invitees or guests of his tenant than
he owes to the tenant himself. Frobip v. Gordon, 124 Wn.2d 732, 735, 881 P.2d
3
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No. 75911-6-1/4
226(1994). A landlord has an affirmative obligation to maintain the common areas
of the premises in a reasonably safe condition for the tenants' use. Degel v.
Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49, 914 P.2d 728 (1996). But, under
common law, a landlord has no duty to repair noncommon areas absent an
express covenant to repair. Martini v. Post, 178 Wn. App. 153, 167, 313 P.3d 473
(2013). And, absent a repair covenant, a landlord is not liable to a tenant for
injuries caused by apparent defects after exclusive control has passed to the
tenant. Sample v. Chapman,7 Wn. App. 129, 132, 497 P.2d 1334 (1972).
The Restatement(Second) of Torts § 343(Am. Law Inst. 1965) expresses
this rule:
A possessor of land is subject to liability for physical harm caused to
his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover
the condition, and should realize that it involves an unreasonable risk
of harm to such invitees, and
(b)should expect that they will not discover or realize the danger,
or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the
danger.
By its terms, this section applies only to one who is a"'possessor of land.'"
Pruitt v. Savage, 128 Wn. App. 327, 331, 115 P.3d 1000 (2005) (quoting
RESTATEMENT (SECOND) OF TORTS § 343. By definition, a landlord is not the
possessor of noncommon areas. Id. In Pruitt, a home's failing garage door injured
a nontenant, a person who lived in a neighboring house, and this court held that
the landlords of the property were not liable. 128 Wn. App. at 328, 331. We held
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No. 75911-6-1/5
that Restatement (Second) of Torts, § 343 (1965) did not apply in that case
because Pruitt's injury occurred in a noncommon area and the landlord was not
the possessor of the noncommon area. Id.
Phillips relies on Lian v. Stalick, 106 Wn.App. 811,25 P.3d 467(2001)(Lian
I) and Lian v. Stalick, 115 Wn. App. 590, 62 P.3d 933 (2003)(Lian II). In Lian I,
this court stated,"The determinative issue is not so much the location of the defect
but whether the dangerous defect was so obvious that the landlord should have
anticipated the harm even though the tenant knew of the defective condition." 106
Wn. App. at 821. Lian, the tenant, fell on the "obviously decrepit" steps outside of
her apartment and sued her landlord, who knew of the steps' poor condition. Id.
at 814. In Lian II, 115 Wn. App. at 592, the landlord was liable under Restatement
(Second) of Property § 17.6 (Am. Law Inst. 1977), which states that a landlord is
subject to liability for physical harm to tenants and their guests caused by
a dangerous condition existing before or arising after the tenant has
taken possession, if he has failed to exercise reasonable care to
repair the condition and the existence of the condition is in violation
of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.
Washington has adopted section 17.6 in cases where the plaintiff, a tenant,
alleges negligence against the landlord. See, e.g., Martini, 178 Wn. App. at
171Lian 11, 115 Wn. App. at 593, 599. In Martini, the court noted that section 17.6
has not been adopted in the context of nontenants. 178 Wn. App. at 169-70.
5
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No. 75911-6-1/6
Phillips does not cite to any Washington authority that has extended the implied
warranty of habitability of section 17.6 to persons other than tenants.1
Lian I and Lian II differ from this case. They are landlord versus tenant
cases decided under property law principles, not a licensee versus possessor case
decided under tort law principles. See Lian II, 115 Wn. App. at 596-97. The duties
are different. Lian was a tenant. Phillips is not a tenant.
Phillips, citing Tincani, also argues that Greco had notice the deck was
dangerous and she therefore owed a duty to her as an invitee. In Tincani, the court
noted that Restatement(Second) of Torts § 343A creates a duty to protect invitees
from known or obvious dangers if the landowner should anticipate the harm despite
their knowledge of the condition or obviousness of the danger. 124 Wn.2d at 139.
Distraction, forgetfulness, or foreseeable, reasonable advantages from
encountering the danger are factors that trigger a landowner's duty in these limited
circumstances. Id. at 140. Tincani is distinguishable from here because there, the
issue was whether the landowner in possession, the Zoo, was liable for the
plaintiff's injuries. See id. at 133-34. Here, Greco was the owner, but not the
possessor of the deck at the time of Phillips's injury.
Tenants McGrath and his roommate possessed the entire main house,
including the deck. Landlords are responsible for common areas, but this deck is
not a common area. See Schedler v. Wagner, 37 Wn.2d 612, 615-16, 225 P.2d
1 Phillips alternatively argues that Greco owed her a duty under the implied
warranty of habitability pursuant to Restatement(Second) of Property § 17.6. As
this analysis shows, the trial court did not err in concluding that the implied warrant
of habitability did not extend to Phillips, a nontenant.
6
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No. 75911-6-1/7
213, 230 P.2d 600 (1950)("When premises are leased, a stairway, porch, or walk
necessary to be used with the premises, and which it is intended shall be for the
exclusive use of the tenant, passes as an appurtenant to the leased premises."),
overruled on other grounds by Geise v. Lee,84 Wn.2d 866, 529 P.2d 1054(1975).
Thus, Greco is not liable under Restatement(Second)of Torts § 343for the
noncommon area, because she was not the possessor of the home. The trial court
correctly concluded that Greco did not owe Phillips a duty of care.
B. Affirmative Neglicience
Relying on Rossiter v. Moore, 59 Wn.2d 722, 370 P.2d 250(1962), Phillips
also argues that Greco was negligent, because she "had the opportunity to make
the premises safe and habitable for human occupation. .. and . . . failed to do so."
In Rossiter, the landlord removed a porch railing before leasing the home. Id. at
723. The tenant's guest fell from the porch and sued the landlord. Id. Reversing
summary judgment, the court held there was a genuine issue of fact as to whether
there was an oral agreement obligating the landlord to replace the railing. Id. at
724, 727-28.
Rossiter differs from this case because there, the issue was whether the
landlord undertook a duty to the tenant to perform repairs not required of him under
the lease, and did so negligently (an affirmative act). See id. at 725, 727. That
court concluded that a landlord is liable for an affirmative act of negligence, as well
as a breach of an express covenant to repair. See id.
Here, there is no evidence that the deck was in a dangerous condition at
the time the property was leased. And, both the tenant McGrath and Greco made
7
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No. 75911-6-1/8
repairs to the deck before Phillips's accident. The first time a deck board broke,
McGrath voluntarily repaired it. In February 2010, Greco had someone replace a
second broken board, along with other soft boards. Greco's act of replacing the
boards did not create a dangerous condition as the landlord's act did in Rossiter.
Even when viewed in the light most favorable to Phillips, she has not alleged nor
proved an express covenant to repair.
There is no evidence that Greco owed or breached any duty to Phillips.
II. Motion for Reconsideration
We review an order denying a motion for reconsideration for abuse of
discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d
674, 685,41 P.3d 1175 (2002). A court abuses its discretion when its decision is
manifestly unreasonable or based on untenable grounds or reasons. State ex rel.
Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Phillips appealed the trial court's order denying her motion for
reconsideration. But, in her brief, she did not assign error to the denial, nor did
she argue the issue.
This court will only review a claimed error that is included in an assignment
of error or clearly disclosed in the associated issue pertaining thereto. RAP
10.3(g); see also Emmerson v. Weilep, 126 Wn. App. 930, 939-40, 110 P.3d 214
(2005)("[A] party's failure to assign error to or provide argument and citation to
authority in support of an assignment of error .. . precludes appellate consideration
of an alleged error.").
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No. 75911-6-1/9
We decline to review the trial court's denial of Phillips's motion for
reconsideration.
We affirm.
WE CONCUR:
9
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