                                                                                                                FILED
                                                                                                     C           Q APPEALS
                                                                                                             Di\ / ISi0P1 aI

                                                                                                    201311' 1 -o ° 36 "
                                                                                                                    6           08
    IN THE COURT OF APPEALS OF THE STATE OF WASH
                                                                                                      ETA E ' "           SHINGTO

                                                     DIVISION II                                      Y.
                                                                                                                  p


THOMAS MARTINI, individually and as the                                           No. 43484 -9 -II
personal representative of the ESTATE OF
JUDITH ABSON; DEBORAH SVANCARA;
KIMBERLY             SVANCARA,              a    minor;   and

CHRISTINA SVANCARA, a minor;

                                           Appellants,


         V.




PAUL POST, individually,                                                    PUBLISHED OPINION




         PENOYAR, J. —              Thomas Martini appeals the trial court' s dismissal of his negligence

action against his landlord Paul Post for his wife' s, Judith Abson' s, death after a fire in their

rented   house.          Martini filed the negligence action against Post individually and on behalf of

Abson    and       her three daughters.          Before the fire, Martini had repeatedly asked Post to repair

windows       that   were    inoperable because they       were painted shut.     Abson died of smoke inhalation


after the inoperable windows prevented her from escaping the fire. The trial court granted Post' s

motion for summary judgment on the issue of cause in fact and then denied Martini' s motion for
reconsideration.




         Martini         appeals,   arguing that ( 1)     summary judgment was improper because there are

genuine issues of material fact regarding whether Post' s failure to repair the windows was the

cause in fact of Abson' s death, and ( 2) the trial court erred when it denied his motion for

reconsideration given the new evidence he submitted and the court accepted, demonstrating

Abson attempted . to open a window and expert testimony opining that Abson would have

survived      if   she   had been   able   to   open a window.   We   reverse   the trial court' s denial   of   Martini'   s
43484 -9 -II



motion for reconsideration because the new evidence creates a genuine issue of material fact


regarding Abson' s cause of death and remand for trial.

                                                           FACTS


I.         BACKGROUND


           Beginning       in 2006, Abson       and   Martini leased        a   house from Post.   During the initial walk

through of the house, Martini noticed the windows in the northeast bedroom could not be opened

and   he   requested       that Post   repair   them.     After his initial request, Martini requested that Post


repair the windows in the northeast bedroom on at least two more occasions, but Post never

repaired them.


           In the early morning         of   February    27, 2007,      a   fire began in the home'     s   basement.    Two


houseguests and Abson were awake and noticed the fire. One of the houseguests awoke Martini,


who gathered the three children and ushered them outside. Both of the houseguests who initially

discovered the fire also safely exited the house.

           In the course of the fire, Abson, one of her daughters, and a third houseguest became

trapped on the second floor. Abson was trapped in the back side of the house and was eventually

found in the        northeast   bedroom,      which was     the   room with         inoperable   windows.     Martini heard


Abson yelling from an upstairs bedroom in the back of the house before the fire fighters arrived

at the house.


           Abson'    s    daughter   and   the houseguest        were   trapped in the      southeast   bedroom.        While


trapped, Abson' s daughter heard Abson yell from the back of the second floor to get out of the

house.      Abson' s daughter and the houseguest opened a window and took turns sticking their

heads      out of   the   window     to breathe fresh     air.   When the fire fighters arrived, they immediately

rescued Abson' s daughter and the houseguest using a ground ladder.
                                                                 2
43484 -9 -II



         Abson' s daughter and the houseguest told the fire fighters that Abson was still in the

house.   Two fire fighters        reentered     the   house through     a second   floor   window.   They found the

door to the     northeast        bedroom     ajar.    The fire fighters opened the door and found Abson


unconscious on the floor. Due to Abson' s size and her condition, the fire fighters were unable to


exit with   Abson through         a window via a ground           ladder. After other fire fighters gained control


of the first floor fire, the fire fighters exited with Abson using the house stairs and she was

transported to the hospital. Resuscitation efforts were not successful and Abson was pronounced


dead at the hospital. An autopsy showed Abson died from smoke inhalation.

         After the fire, the City of Tacoma fire investigator noted the presence of hand prints and

marks    around   the   east     window      in the   northeast    bedroom,   where   Abson   was    trapped.   In his


complaint, Martini alleged there was evidence of hand prints around the window. In his motion

for reconsideration, he provided a photograph that showed markings around the window.


         A certified fire and explosion investigator, Noel Putannsuu, inspected the northeast room


and found the window on the east wall to be inoperable. He stated that he ( a 210 pound, 6 foot 2

inch tall man) could not open the window with reasonable or even forceful effort, and thus,

Abson would have been unable to open the window while trapped in the northeast bedroom. The


window along the north wall had been removed by the time he conducted his investigation.

II.      PROCEDURAL HISTORY


         Martini filed       a   negligence     action   against    Post.   Post moved for summary judgment,

alleging that ( 1) Martini could not produce evidence that the window in the northeast bedroom

was   painted   shut    at   the time   of   the fire; ( 2) because Martini and Abson were aware that the


window was painted shut, Post could not be liable under Washington law; and ( 3) Martini failed


to produce evidence that any negligence by Post was the proximate cause of Abson' s death.
                                                             J
43484 -9 -II



          Martini responded, arguing that ( 1) Post is liable for Abson' s death because he breached

the Residential Landlord Tenant Act' s ( RLTA) implied warranty of habitability) and violated
                                                                      2
building     requirements of      the Tacoma Municipal Code;              and ( 2) because her daughter survived by

opening a window, Abson also would have survived if the windows in the northeast bedroom

had    not   been   painted shut.     Martini supported his response with Putannsuu' s expert testimony.

Putannsuu testified that Abson would have been unable to open the window and that Post

 should have ensured that the window was open -able with minimal effort by an average person

when    the tenants    moved      in." Clerk' s Paper' s ( CP) at 64.


          The trial court granted summary judgment on the ground that Martini failed to prove the

cause in fact element of proximate cause and stated Martini failed to present sufficient evidence

to   show     that "` but for' the   negligence of   the defendants, [ Abson]          would not     have died."      CP at


165.    Martini     moved   for   reconsideration under    CR 59( a)( 7) -( 9),      arguing that Abson would have

survived the fire but for Post' s failure to repair the inoperable windows, and Post' s failure was

the legal cause of Abson' s death. In his motion for reconsideration, Martini also introduced new

evidence of hand prints around the window in the northeast bedroom and a declaration from Dr.

Kiesel, who performed Abson' s autopsy, testifying that Abson would have survived if she had

been able to open a window and breathe fresh air.

             Post filed a motion to strike the new evidence, arguing that ( 1) it is improper to introduce

new     evidence     on   reconsideration    under   CR 59( a)( 7) -( 9); ( 2) Dr. Kiesel was not qualified to


testify regarding      whether someone could survive             in   a   burning   house;   and   in the   alternative, (   3)




1 RCW 59. 18. 060.

2
     Tacoma Municipal Code § 2. 01. 070.


                                                            rd
43484 -9 -II



Dr. Kiesel'     s    opinion was   based     on   speculation.       Post also responded to Martini' s motion for


reconsideration,       arguing that ( 1) the newly introduced             evidence should not   be   considered, (   2) the


marks on the window in the northeast bedroom do not create a question of fact with regard to

causation, and ( 3) Dr. Kiesel' s declaration does not support Martini' s motion for reconsideration.

         During oral argument on the motion for reconsideration, Martini' s attorney handed the

court a photograph of the window in the northeast bedroom that showed evidence of a mark on

the wall next to the window, which Martini contends is Abson' s hand print. Post objected to the

introduction of the photograph; however, the trial court allowed it. In a letter to counsel, the trial

court noted that it reviewed the photograph of the window and Dr. Kiesel' s declaration and

stated   that   it   was   going to   deny   Martini'   s motion     for   reconsideration.   However, in the actual


order denying the motion for reconsideration, the trial court listed Dr. Kiesel' s declaration as a

document reviewed but not the photograph. Martini timely appeals.

                                                        ANALYSIS


I.        PROXIMATE CAUSE


          Martini argues that the trial court erred when it denied his motion to reconsider the


summary judgment in Post' s favor because the new evidence Martini submitted with his motion

for reconsideration in addition to the evidence he previously submitted in opposition to Post' s

motion     for summary judgment              creates    an   issue   of   fact.   Post responds that, even if all the


evidence can properly be considered on appeal, the evidence is too speculative to support

overturning the trial        court' s   denial    of reconsideration.       We hold it was manifestly unreasonable

to deny Martini' s motion for reconsideration because the trial court had accepted evidence on

reconsideration that created a genuine issue of material fact regarding the cause of Abson' s

death.

                                                                R
43484 -9 -II



          A.     Standard of Review


          Summary judgment is proper if `,` pleadings, depositions, answers to interrogatories,
                                         the

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any    material   fact   and   that the moving party      is   entitled   to   a   judgment    as a matter of   law." CR


56( c).   We construe all facts and the reasonable inferences from those facts in the light most

favorable to the nonmoving party. Jones               v.   Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P. 3d 1068


 2002).     We review a trial court' s denial of a motion for reconsideration and its decision to

consider new or additional evidence presented with the motion to determine if the trial court' s

decision is manifestly            unreasonable   or   based       on   untenable       grounds.      Weyerhaeuser Co. v.


Commercial Union Ins. Co., 142 Wn.2d 654, 683, 15 P. 3d 115 ( 2000); Chen v. State, 86 Wn.


App. 183, 192, 937 P. 2d 612 ( 1997).

          The trial court granted Post' s motion for summary judgment on the basis of the cause in

fact   element of proximate          cause.   Because we determine the trial court' s denial of Martini' s

motion for reconsideration of the grant of summary judgment was improper considering the

additional evidence presented, we need not review the trial court' s initial granting of summary

judgment.
43484 -9 -II



         B.         Additional Material Submitted with a Motion for Reconsideration

                    1.         Admission of Additional Materials


         As    an   initial    matter,      we consider whether the trial court properly considered the

additional evidence         Martini    submitted with          his   motion    for   reconsideration.   Martini contends the



trial court properly exercised its discretion in considering Dr. Kiesel' s declaration and the hand
print evidence when                    on   the   motion      for   reconsideration under      CR 59( a)( 7) -( 9).    We agree
                              ruling


with Martini that the trial court did not err when it considered additional evidence on

reconsideration.




         The decision to consider new or additional evidence presented with a motion for

reconsideration          is squarely   within     the trial    court' s     discretion.   Chen, 86 Wn.     App.   at   192. "`   In



the context of summary judgment, unlike in a trial, there is no prejudice if the court considers
additional     facts     on reconsideration. "'      August v. U.S. Bancorp, 146 Wn. App. 328, 347, 190 P. 3d

86 ( 2008) ( quoting Chen, 86 Wn.                   App.      at    192).    Generally, nothing in CR 59 prohibits the
                                                                                           3
submission       of new       or   additional     materials        on reconsideration.         Chen, 86 Wn. App. at 192.

         The trial court properly exercised its discretion when reviewing the new evidence Martini
presented on reconsideration.               Post suffered no prejudice from trial court' s consideration of the


additional evidence because Post was previously aware of the evidence and of Martini' s theory

 of   Abson'   s cause of     death.     It was within the trial court' s discretion to consider this additional


 evidence.      Thus, we hold that the trial court' s decision to review the new evidence was not


 manifestly unreasonable.




 3 There are a few limited exceptions that prohibit the introduction of new evidence on a motion
 for reconsideration, none of which are applicable to this case.
                                                                       7
43484 -9 -II



                          2.          Dr. Kiesel' s Declaration


            Post specifically contends that Dr. Kiesel' s declaration should not be considered because

 the opinion he expresses is beyond the scope of his expertise" and " is based on nothing more

than   speculation and conjecture."                      CP    at   154 -55.     We disagree because the trial court properly

exercised         its discretion in considering this                       expert   testimony, and we will not disturb that

decision. See Moore                   v.   Hagge, 158 Wn.           App.     137, 155, 241 P. 3d 787 ( 2010) (        quoting Miller v.

Likins, 109 Wn.                 App.       140, 147, 34 P. 3d 835 ( 2001)) ( " The trial court has wide discretion in


            on    the admissibility            of expert      testimony. "); Oliver         v.   Pac. Nw. Bell Tel.. Co., Inc., 106
ruling


Wn.2d 675, 683, 724 P. 2d 1003 ( 1986).


            Dr. Kiesel qualified as an expert under ER 702 to offer an opinion regarding Abson' s

cause       of    death        and    whether     she    could        have     survived    if   she   had   access   to fresh    air.   See


Philippides          v.     Bernard, 151          Wn.2d 376, 393,               88 P. 3d 939 ( 2004) ( An expert' s opinion is


admissible if the witness is properly qualified, relies on generally accepted theories, and the

expert' s     testimony is helpful to                the trier   of   fact).   Dr. Kiesel had worked in forensic pathology for

27 years and, in doing so, became familiar with performing detailed death scene investigations
and    determining              the    cause    of    death.        He was also board certified, was a Diplomat of the


American Board of Pathology in Anatomic and Forensic Pathology, and had been the Chief

Medical Examiner for the Pierce County Medical Examiner' s Office.

            Dr. Kiesel also had an adequate factual basis for his expert opinion. See Miller, 109 Wn.

App.     at      148 ( "[      C] onclusory or speculative expert opinions lacking an adequate foundation will
 not   be   admitted. ") ( internal quotation marks omitted).                             He based his opinion that Abson would


 have survived if she had been able to open a window and access fresh air in large part on the

 facts that ( 1)          two individuals trapped                in the      upstairs   front bedroom        were able    to    survive   by
43484 -9 -II




opening a window and breathing fresh air, and ( 2) Abson had no identified natural diseases that
would   have      contributed       to her death.       Dr. Kiesel also performed an autopsy on Abson and read

the City of Tacoma Fire Department' s. Fire Investigation Report in formulating his opinion. Dr.
Kiesel had an adequate factual basis for his expert opinion and we hold that the trial court

properly considered Dr. Kiesel' s expert opinion.

          C.          Ruling on Motion for Reconsideration.

          Martini argues the trial court' s denial of his motion for reconsideration was manifestly

unreasonable considering all the evidence proffered, including the newly submitted evidence.

We agree because, when viewed together and in the light most favorable to Martini, the evidence

creates a genuine issue of material fact regarding the cause of Abson' s death.

          To maintain an action for negligence, the plaintiff must show ( 1) the defendant owed a

duty   to the    plaintiff, (2)         the defendant breached that          duty, ( 3) the plaintiff suffered an injury, and

 4) the defendant' s breach                was   the   proximate cause        of   the   plaintiff' s   injury. Hertog v. City of

Seattle, 138 Wn.2d 265, 275, 979 P. 2d 400 ( 1999).                                The plaintiff must establish an issue of


material       fact   as   to    each element of negligence            to defeat summary judgment.                Craig v. Wash.

Trust Bank, 94 Wn. App. 820, 824, 976 P. 2d 126 ( 1999).

          Proximate             cause   has two     elements:   cause     in fact    and    legal   causation.   Hartley v. State,

 103 Wn.2d 768, 777, 698 P. 2d 77 ( 1985).                    Here, the trial court decided summary judgment based

 on cause in fact. Cause in fact, or " but for" causation, refers to the " physical connection between

 an act and an        injury." Hartley,           103 Wn.2d      at   778.    The plaintiff "must establish that the harm

 suffered would not              have    occurred   but for   an act or omission of          the defendant."     Joyce v. Dept. of

 Corr.,   155 Wn.2d 306, 322, 119 P. 3d 825 ( 2005).



                                                                      4
43484 -9 -II




           Cause in fact is usually a question for the trier of fact and is generally not susceptible to

summary judgment.                  Owen       v.   Burlington N. Santa Fe R. R. Co., 153 Wn.2d 780, 788, 108 P. 3d


1220 ( 2005) ( quoting             Ruff v. King County,            125 Wn.2d 697, 703, 887 P. 2d 886 ( 1995)) ( "` [ I] ssues


of negligence and proximate cause are generally not susceptible to summary judgment. "');

Hertog,      138 Wn.2d         at   275.       Cause in fact may be decided as a matter of law, however, if the

facts and inferences from them are plain and not subject to reasonable doubt or difference of

opinion.       Little    v.   Countrywood Homes, Inc., 132 Wn.                         App.   777, 780, 133 P. 3d 944 ( 2006)


 citing Daugert v. Pappas, 104 Wn.2d 254, 257, 704 P. 2d 600 ( 1985)).

             The   plaintiff cannot rest a claim                  for   liability   on a speculative   theory. See- Marshall v.

             Pacwest, Inc., 94 Wn.                 App.   372, 378 -80, 972 P. 2d 475 ( 1999).          The plaintiff, however,
Bally' s

need not prove cause               in fact to       an absolute      certainty.     Gardner v. Seymour, 27 Wn.2d 802, 808,


180 P. 2d 564 ( 1947).              It is sufficient if the plaintiff presents evidence that " allow[ s] a reasonable


person to conclude that the harm more probably than not happened in such a way that the

moving party          should       be held liable."         Little, 132 Wn. App. at 781 ( citing Gardner, 27 Wn.2d at

808 -09).          The evidence presented may be circumstantial as long as it affords room for

 reasonable minds to conclude that there is a greater probability that the conduct relied upon was

the [   cause   in fact]      of   the   injury than      there   is that it   was not."   Hernandez v. W. Farmers Ass' n, 76


Wn.2d 422, 426, 456 P. 2d 1020 ( 1969).


             In his     response         to    Post' s    motion        for summary judgment, Martini presented facts,


evidence, or declarations demonstrating that ( 1) the windows in the northeast bedroom had been

painted       shut; (   2) Martini requested that Post repair the windows in the northeast bedroom on

several occasions,            but Post failed to do          so; (   3) Martini and Abson' s daughter heard Abson yelling

from     a   back bedroom           of   the house; (      4) Abson became trapped in the northeast bedroom during
                                                                          10
43484 -9 -II



the fire; ( 5)     Abson died from smoke. inhalation; and ( 6) two other residents who were trapped in

the   southeast      bedroom     were able   to    open   a window and survived    the fire.   Martini, however,


failed to allege any facts, either direct or circumstantial, in his summary judgment response that

Abson attempted to open a window in the northeast bedroom or that if she had been able to open

a window she would have survived.


           In his motion for reconsideration Martini presented additional expert opinion evidence


from Dr. Kiesel that Abson likely would have survived if she had been able to open a window in

the northeast bedroom and evidence of possible hand prints around the window in the northeast

bedroom.         The City of Tacoma' s investigation report also noted evidence of hand prints around

the window in the northeast bedroom.

            Post   argues    that Abson    has    not established " concrete"   evidence   of causation.      Resp' t' s

Br.   at   14.   But Post ignores the fact that at summary judgment Abson is entitled to all reasonable

inferences drawn from the              evidence.      The trial court had discretion whether to consider the


additional evidence          Martini   provided at reconsideration.      Chen, 86 Wn.      App.   at   192.   But after



deciding to consider the additional evidence, the trial court should have construed all facts and
all reasonable inferences from the facts in Martini' s favor in determining whether a genuine issue

of material         fact   existed.    Considering all of the evidence presented to the trial court, it is

reasonable to infer that Abson would have tried to gain access to fresh air through the windows

once she was trapped. That she was conscious and able to try to save herself can be inferred from

her shouting directions to the others trapped by the fire. And the limited evidence that she did try
the windows is not fatal since she likely knew this was fruitless because they had been painted

 shut. When considering all the evidence, a reasonable person could conclude that Post' s failure
 to repair the windows more probably than not was the cause in fact of Abson' s death. See Little,
                                                              11
43484 -9 -II



132 Wn.          App    at   781.       Because genuine issues of material fact regarding the cause in fact of

Abson' s death remain to be resolved by the trier of fact, it was manifestly unreasonable for the

trial court to deny Martini' s motion for reconsideration.

II.         LANDLORD LIABILITY


            Post argues, in the alternative, that he is not liable to Martini for damages under

Washington law because Martini and Abson were aware of the inoperable windows in the

northeast        bedroom.       Martini contends that Post is liable for Abson' s death because he breached

his duties under the RLTA and the implied warranty of habitability. In so arguing, Martini urges

us    to   adopt    the RESTATEMENT ( SECOND) OF PROPERTY §                                17. 6 ( 1977).        We apply the rule and

reasoning from section 17. 6 under these facts because Martini notified Post of the defective
windows and gave him permission to enter the home to make the needed repairs.

            Whether the defendant                    owed a       duty   to the   plaintiff   is   a question of     law.   Hertog, 138

Wn.2d       at   275.    There are three .distinct theories on which a tenant may base a claim for personal
                                                                                                            4(
injuries: the landlord'             s   breach      of a   duty   under (   1) the     rental agreement,         2) the common law, or


 3) the RLTA. Dexheimer                       v.   CDS, Inc.,     104 Wn. App. 464; 470, 17 P. 3d 641 ( 2001).

            A.          Common Law: Latent Defect Theory.

             Post   argues     that     he    cannot       be liable   under     the   common      law latent defect theory. Martini


 does not address this theory of liability in his brief. Generally, under common law a landlord has

 no duty to repair non -common areas absent an express covenant to repair. Aspon v. Loomis, 62
 Wn.       App.   818, 826, 816 P. 2d 751 ( 1991).                     A landlord is subject to liability, however, for harm to

 the tenant         caused     by (      1)    latent      or   hidden defects in the leasehold, ( 2) that existed at the




 4 Neither Martini nor Post makes any argument about liability based on a rental agreement, and
 there is nothing in the record to support such an argument.
                                                                            12
43484 -9 -II



commencement          of   the leasehold, ( 3)         of which the landlord had actual knowledge, and ( 4) of


which the landlord failed to inform the tenant. Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P. 2d

226 ( 1994).


        Here, Martini fails               under element       four.    Martini and Abson were aware of the hidden


defect: the       windows   in the        northeast   bedroom were inoperable.         Thus, we find that Post cannot


be held liable under the latent defect theory.

        B.          RLTA and the Implied Warranty of Habitability

        Martini      urges us        to   adopt   the RESTATEMENT ( SECOND) OF PROPERTY §               17. 6 as Division


Three   of   this court    has done in Lian           v.   Stalick, 106 Wn.   App.   811, 25 P. 3d 467 ( 2001) ( Lian 1),


which would allow him to assert a cause of action against Post for breaching the implied

warranty of habitability and various provisions of the RLTA .5
        Under the RESTATEMENT ( SECOND)                       OF    PROPERTY §    17. 6, a landlord is subject to liability

for physical harm to tenants and their guests caused by:



5 In relevant part, the RLTA provides in RCW 59. 18. 060:

         The landlord will at all times during the tenancy keep the premises fit for human
         habitation, and shall in particular:


             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;



             5)   Except where the condition is attributable to normal wear and tear, make
         repairs and arrangements necessary to put and keep the premises in as good
         condition         as   it    by     law      or   rental     agreement   should    have   been,   at   the

         commencement of the tenancy.

                                                                      13
43484 -9 -II



            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.

Division Three           adopted section            17. 6 in Lian L         In Lian I, Susan White, formerly Susan Lian,

sued her landlord for injuries after she fell on the decrepit stairs leading to her apartment, a non -

common area of            the   apartment       building.       106 Wn.       App   at   814. The court adopted section 17. 6,


which allows plaintiffs to recover for injuries caused by the landlord' s breach of the implied

                                            his duties              the RLTA.       Lian I, 106 Wn.           App.   at   822.   The court
warranty      of    habitability       or                   under




later held that:


             T] o   prevail on a section            17. 6   claim,    the tenant    must show: (          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) ( Lian II).


            We once declined to address adopting section 17. 6 where the plaintiff ( a non -
                                                                                           tenant)

alleged negligence against the landlord but failed to provide adequate support and policy

considerations for adopting section 17. 6 in the context of non -tenants. Pruitt v. Savage, 128 Wn.

App    327, 332, 115 P. 3d 1000 ( 2005).                            We also declined to adopt section 17. 6 when the

dangerous condition was located in a common area and the plaintiff (also a non -
                                                                               tenant) was able


to pursue a claim under a different theory of landlord liability. Sjogren v. Props. of the Pac. Nw.,

LLC, 118 Wn. App. 144, 151, 75 P. 3d 592 ( 2003).

            In Pruitt, Michael Pruitt and his parents sued their neighbors Vincent and Denise

 Jackson, the Jacksons' landlords, and the real estate management company for injuries Michael

        tenant) suffered after
  a non -                                     the   garage     door    of   the Jacksons'        rental   home fell   on   his head.   128

                                                                        14
43484 -9 -II



Wn.    App.       at   328.   The Pruitts argued they could recover under section 17. 6 for the landlords'

breach of an implied warranty of habitability, relying on Lian IT Pruitt, 128 Wn. App. at 331-

32.    We declined to address the question of adopting section 17. 6 because the Pruitts offered no

precedent or policy discussion supporting extending section 17. 6 to non -tenants. Pruitt, 128 Wn.

App. at 332.

          In Sjogren, Yvonne Sjogren ( a non -
                                             tenant) fell down a darkened stairway of an apartment

complex       when        visiting her daughter.                 Sjogren,       118 Wn.        App.   at   147.   Sjogren brought a


negligence claim against the apartment owner and, on appeal, urged us to adopt section 17. 6,

relying      on   Lian L Sjogren, 118 Wn.                App.       at   147, 151.   We declined to do so for several reasons.


Sjogren, 118. Wn.             App.    at   151.    First, we noted that the dangerous condition in Lian I was not in

a common area, whereas,                    in Sjogren, the stairway               was   in    a common area.       Sjogren, 118 Wn.


App.    at   151.       Thus, in Lian I, the landlord' s common law duty to maintain common areas in a

reasonably         safe   condition        did    not   apply,   whereas        it did in Sjogren.         Sjogren, 118 Wn. App. at

151.    Second, Sjogren fit within the limited circumstances of RESTATEMENT ( SECOND) OF TORTS

   343A ( 1965),          in which an obvious danger does not automatically bar recovery, and we found

that a question of fact remained regarding whether the stairs were an obvious dangerous

condition.         Sjogren, 118 Wn.              App.   at   151.    Thus, because Sjorgen had the opportunity to pursue

a claim under a           different theory         of   landlord     liability,   we    did   not adopt section    17. 6. See Sjogren,


 118 Wn. App. at 151.

             The instant       case   is distinguishable from Pruitt                 and      Sjogren.     First, Martini has no other


 theory of landlord liability under which to assert his negligence claim against Post as the plaintiff
 in Sjogren had           with   RESTATEMENT ( SECOND)                     OF   TORTS §       343A.   Second, Martini, Abson, and


 Abson' s children were all tenants of the home, whereas the plaintiffs in both Pruitt and Sjogren
                                                                           15
43484 -9 -II



were      guests of   the tenant.             Thus the plaintiffs here, as tenants, have a direct legal relationship

                                6
with     their landlord.


           Here, like the plaintiff in Lion I who notified her landlord of the decrepit stairs, Martini

notified Post of the defective windows in the northeast bedroom on several occasions and gave

Post     permission       to        enter   the home to   repair   them.       Yet, Post never made the requested repairs.


Additionally, and unlike the plaintiff in Pruitt who failed to cite Washington authority for

applying      section       17. 6 to             tenants,
                                             non -          Martini offered persuasive Washington authority that

section 17. 6 should apply to injuries suffered by a tenant due to a landlord' s breach of the

implied warranty of habitability or a breach of a duty specified by statute or regulation. See Lion
I, 106       Wn.     App.            81 L.    Martini also argued that Post breached his duties under RCW

59. 18. 060( 1), (    5)    and        Tacoma Municipal Code              section   2. 01. 070.         He contended that when a


tenant alerts a landlord to a defective condition, the landlord has a duty to remedy the condition

as    required       by    the        implied warranty       of    habitability     and   by      his    statutory duties.    Policy


6 While the language of section 17. 6 extends its coverage to guests, at this time we are applying
the rule and reasoning from section 17. 6 only to tenants.
7
    In   relevant part,     Tacoma Municipal Code § 2. 01. 070 provides:


            No owner shall maintain, or permit to be maintained, any property which does not
            comply with the requirements of this chapter. All property shall be maintained to
                                                                                                                Alterations
            the Building Code requirements in effect at the time of construction.
            or repairs shall meet the minimum standards in this section.




            Windows and glazing shall be in good condition and maintain a weather barrier
            against       the       elements.    All glazing      shall   be   untracked    and unbroken.         Operable

            windows shall be able to operate in the manner in which they were designed, and
            shall not be painted closed or otherwise bind in a manner rendering them
             inoperable.


    Emphasis added.).
                                                                      16
  I I&
     MV



considerations     also   support application of section            17. 6 to the landlord -
                                                                                          tenant relationship.     As


Martini argues, the rule in section 17. 6 is based on the assumption that a duty created by a statute

or regulation " represents a legislative determination of the standard of conduct required of the

landlord"   and    that tort   liability   of   the landlord for      breaching   his   duty "   tends to increase the


likelihood that the will of the legislature as expressed in the statute or regulation will be

effectuated."     RESTATEMENT ( SECOND) OF PROPERTY § 17. 6 cmt. a ( 1977).


        Thus, as tenants who notified Post of the defective condition and gave him permission to

enter the home to make repairs, Martini, Abson, and Abson' s children are entitled to bring a

claim   under   the   rule   from   section     17. 6   and   the test   articulated   in Lion H.    Accordingly, we

reverse the trial court' s summary judgment and remE




We concur:




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