                                                                     •COUPJ OF APPEALS OiV
                                                                      SlAlE OF WASHINGTON'
                                                                      2013 APR 29 AM 10: 03
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

EVANGELINE SALDE and MAGNO
SALDE, husband and wife and the                  DIVISION ONE
marital community do composed,
                                                 No. 68145-1-1
                       Appellants,
                                                 UNPUBLISHED OPINION
                  v.



ARNOLD YAGEN and ELIZABETH
YAGEN, husband and wife and the
marital community do composed,
                                                 FILED: April 29, 2013
                       Respondents.


       Dwyer, J. — Tenants Evangeline and Magno Salde appeal the trial court's

dismissal of their personal injury suit against their landlords, Arnold and Elizabeth
Yagen. Because the evidence does not establish notice, actual or constructive,
of a defect or dangerous condition, the landlords are not liable under any ofthe
legal theories advanced by the tenants. We affirm the summary judgment

dismissal of the complaint.



       The Yagens purchased a house in SeaTac in 2001. The home has a
living room fireplace with a stone face veneer surrounding the fireplace and
chimney structure. The veneer consists of large stones ofvarious sizes held in
place by mortar. It appears to have been built in the mid-to-late 1960s. In
November 2007, the Yagens leased the home to the Saldes.
No. 68145-1-1/2



       One day in June 2009, Evangeline Salde noticed that one of the stones

above the mantle had become loose and was about to fall. She tried to hold it in

place so the stone would not hit a child who was playing in front of the fireplace.

But she was unable to do so, and the stone gave way and hit her on the

shoulder.

       The Saldes filed a lawsuit against the Yagens alleging that they

negligently failed to inspect and maintain the premises. The Yagens moved for

summary judgment, asserting that they had no notice or knowledge that the

fireplace facade was in need of repair. The trial court granted the motion and

dismissed the tenants' lawsuit. The tenants appeal.

                                          II


       We review a trial court's order granting summary judgment de novo.

Toraerson v. One Lincoln Tower. LLC, 166 Wn.2d 510, 517, 210 P.3d 318

(2009). Summary judgment is appropriate only if the pleadings, affidavits,
depositions, and admissions on file demonstrate the absence ofany genuine
issues of material fact, and the moving party is entitled to judgment as a matter of
law. CR 56(c). A material fact is one on which the outcome of the litigation
depends in whole or in part. Atherton Condo. Apartment-Owners Ass'n Bd. of
Dirs. v. Blume Pev. Co.. 115 Wn.2d 506, 516, 799 P.2d 250 (1990). The court

must consider all facts submitted and all reasonable inferences from the facts in

the light most favorable to the nonmoving party. Atherton Condo, 115 Wn.2d at
516.
No. 68145-1-1/3



       Ifthe moving party submits sufficient evidence, the burden shifts to the

nonmoving party, who must rebut the moving party's contentions or show that a

genuine issue exists. Discover Bank v. Bridges, 154 Wn. App. 722, 727, 226

P.3d 191 (2010). Mere allegations and conclusory statements are insufficientto

establish a genuine issue. Bridges, 154 Wn. App. at 727. The nonmoving party

cannot rely on speculation or argumentative assertions that genuine issues

remain. Bridges, 154 Wn. App. at 727.

       The tenants' complaint alleged only common law negligence. But in their

response to the landlords' motion for summary judgment, the tenants set forth

additional theories of liability under the Residential Landlord-Tenant Act of 1973

(RLTA), chapter 59.18 RCW, and the rental agreement. The tenants, however,

failed to identify evidence sufficient to sustain a claim under any of these

theories.

       It is uncontested that the landlords did not have actual notice that the

fireplace stone facade was dangerous or in need of repair. The tenants admit
that prior to the accident, they had not noticed any defects and consequently had
not asked the landlords to inspect or repair the structure. After the stone fell, the

tenants saw epoxy residue where the stone had been attached to the wall,
suggesting a previous repair. But before the stone became detached from the
wall, there was no visible evidence of a prior repair and nothing caused the

tenants to suspect that a prior attempted repair was about to fail. Nothing in the
record contradicts the landlords' assertion that they made no repairs to the
No. 68145-1-1/4



fireplace exterior or noticed any loose stones, cracks, or other structural defects

during the approximately seven years that they lived in the house.

       The tenants nonetheless argue that "visible cracks" in the masonry existed

prior to the leasehold putting the landlords on notice of the dangerous condition.

The facts in the record do not support this premise. The tenants rely on the

declaration of an architect they submitted in opposition to the landlords' motion

for summary judgment. The architect, Christopher Bollweg, visually inspected

the fireplace exterior in November 2011, two and a half years after the incident.

Bollweg observed "large cracks in the masonry obvious to a non-professional."

He further stated:

       At the ceiling near the fireplace there is extensive water damage.
       The area is discolored, and the ceiling sags. In the vicinity of the
       water damage, there is a rock missing, and clearly visible cracked
       mortar. Based on the discoloration and the amount of cracks,
       these defects appear to be old, and likely predate June 2009.

       Essentially, the tenants argue that the landlords had constructive notice of

the dangerous condition because of "visible cracks" observed in 2011. The

tenants claim that because the landlords lived in the house for several years

before renting it out in 2007, they would have or should have known about the

danger posed by defects in the masonry. But while the expert characterized the

"defects" as "old," he determined only that they "likely" existed before June 2009.

The expert expressed no opinion about whether and to what extent the problems

he observed existed before the lease took effect in 2007.

       Citing a federal district court case, Pincknevv. Smith, 484 F.Supp.2d 1177

(W.D. Wash. 2007), and a case decided by Division Three of this court, Tucker v.
No. 68145-1-1/5



Havford, 118 Wn. App. 246, 75 P.3d 980 (2003), the tenants contend that notice

is irrelevant because the landlords violated one of the duties enumerated in RCW

59.18.060, the statute designed to ensure that rental properties are fit for human

habitation. This argument fails for several reasons. First, the tenants fail to

appreciate the context of those cases. In Pincknev, the landlord had knowledge

of the dangerous condition (the absence of a handrail on a staircase). 484

F.Supp.2d at 1180. It was also undisputed that the absence of a handrail was a

violation of Seattle's minimum building standards and that those standards were

in effect when the landlord rented the premises to the tenant. The landlord

argued that knowledge ofthe condition was not enough absent specific notice of
the need for repair. Pincknev, 484 F.Supp.2d at 1180. The court rejected this

argument and determined that the landlord had a common law duty to ensure

compliance with applicable building codes before leasing the apartment to the
tenant. Pincknev, 484 F.Supp.2d at 1181. The circumstances here are not

analogous because there is no comparable evidence ofthe landlords' actual or
constructive knowledge of a dangerous condition that existed at the outset ofthe

tenancy.

       In Tucker, the tenants became ill from drinking contaminated well water

and claimed that the landlord breached the lease agreement. The lease

contained an express provision requiring the lessor to maintain and repair the
leased premises. The court determined that the landlord's awareness ofthe
contamination was not necessary to a determination of breach. Tucker, 118 Wn.

App. at 252-53. Nevertheless, the court made it clear that even where the
No. 68145-1-1/6



contract expressly requires the landlord to maintain the premises, if the unsafe

condition is inside the residence where the landlord does not have a right to

regular access, there must be evidence of notice of the condition. Tucker. 118

Wn. App. at 252-53. The lease here contained no express covenant to repair.

Even ifthere were such a provision, the analysis in Tucker suggests that the

landlords would not be liable for breach in the absence of notice.1

       In short, the authority does not support the tenants' claim that no notice is

required. They also fail to offer sufficient proof to establish that the landlords
violated the implied warranty of habitability under the RLTA. RCW 59.18.060

requires landlords to "at all times during the tenancy keep the premises fit for
human habitation." The tenants cite subsections (1) and (2) which specifically

require that a landlord must:

                (1) Maintain the premises to substantially comply with any
       applicable code, statute, ordinance, or regulation governing their
       maintenance or operation, which the legislative body enacting the
       applicable code, statute, ordinance or regulation could enforce as
       to the premises rented if such condition endangers or impairs the
        health or safety of the tenant;
                (2) Maintain the structural components including, but not
        limited to, the roofs, floors, walls, chimneys, fireplaces, foundations,
        and all other structural components, in reasonably good repair so
        as to be usable.

RCW 59.18.060(1), (2).

        Although the tenants argue on appeal thatthe condition ofthe stone
surface was not in compliance with a provision of the International Property
Maintenance Code adopted by the City of SeaTac pertaining to the maintenance

        1While the tenants raised a claim under the rental agreement in the trial court, they
abandoned this theory of liability on appeal.


                                                -6-
No. 68145-1-1/7



of interior surfaces, this argument was not considered below because the tenants

failed to raise it in a timely manner. See RAP 9.12 (reviewing a grant of

summary judgment, we consider solely the issues and evidence the parties

called to the trial court's attention on motion for summary judgment). And not

every code violation implicates the implied warranty of habitability. A code

violation must result in a level of dangerousness that substantially "endangers or

impairs" the tenants' health or safety. RCW 59.18.060(1). Or the tenant must

show that a "structural component" such as a fireplace or chimney is in a state of

disrepair so as not to be "usable." RCW 59.18.060(2). Apart from bare and
conclusory allegations, the tenants make no showing that the alleged code

violation meets either of these standards.2

       The evidence offered by the tenants failed to raise a genuine issue of

material fact as to whether the landlords had notice of a defect or whether a

violation of RCW 59.18.060 occurred. Summary judgment was properly granted.

       Affirmed.




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We concur:




        2In addition, the tenants speculate that future discovery may lead to information showing
the landlords had knowledge ofthe defective condition ofthe fireplace stone facade. Such
speculation is not, however, sufficient to defeat summary judgment.
