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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

JOHN JOHNSON and JANET JOHNSON,                                          No. 43752 -0 -II
husband and wife, and the marital community
thereof,


                                  Appellants,


        V.



TOBIN MILLER and CRYSTAL MILLER,                                   UNPUBLISHED OPINION
husband and wife, and the marital community
composed thereof,




                                     1—
        QUINN- BRINTNALL, J. P. T.          John Johnson appeals the summary judgment dismissal of
                                                               2
his negligence   action against   Tobin   and   Crystal Miller .   Johnson contends that he is entitled to


recover for injuries he received after slipping on the steps of a mobile home that the Millers were

renting to his stepdaughter and her boyfriend. Because the Millers did not breach any duty owed

to their tenants under the implied warranty of habitability or the Residential Landlord -Tenant Act

of   1973 ( RLTA),   ch. 59. 18 RCW, we decline to hold that Johnson, as the tenants' guest, may

recover for his injuries and affirm the dismissal of his lawsuit.




1 Judge Christine Quinn -Brintnall is serving as a judge pro tempore of the Court of Appeals,
Division II, pursuant to CAR 21( c).


2 Johnson' s wife Janet is also a plaintiff, but we refer to Johnson in the singular for ease of
reference.
No. 43752 -0 -II



                                                        FACTS


          Taurus Baxter and his girlfriend, Athena Caldwell, rented a mobile home from Jackie

Burns for approximately two             years    without   entering into     a written rental      contract.       When the


Millers bought the property from Burns, they entered into a written rental agreement with Baxter

on August 1, 2005. The agreement provided,


          Tenant   will at all    times     Property ... in a neat and clean condition
                                          maintain   the

          and upon termination of this Agreement will leave the Property in as good
          condition as    it is   now, reasonable wear and        tear   excepted.        Tenant agrees not to

          make any alterations or improvements in the Property without the Lessor' s prior
          written approval.



Clerk' s Papers at 36.


          The front door to the mobile home opened onto an attached and partly- enclosed porch. A

door   on one side of       the   porch opened     to three   steps   that   led to the   path   to the   driveway.        This


door had    a window,       but there     was no   landing leading     from the door to the         steps.      There was a


light inside the    porch as well        as an outside motion sensor          light to illuminate the          steps.     Baxter


and Caldwell turned off the outside light during bad weather because it operated erratically in,the

rain, and they let the light from inside the porch illuminate the area.

          When Baxter and Caldwell first moved into the home, the steps had handrails on both

 sides.   At some point after the Millers bought the home, Baxter removed both handrails because

 of their poor condition, intending to replace them himself. No one notified the Millers that the

 handrails had been removed, and the tenants never told the Millers about any problems with the

 motion    sensor   light    or   the   steps.    Caldwell said the Millers came by often but could not

 specifically remember them coming by the property after the handrails were removed.

          Johnson visited the home several times without incident after Baxter removed the

                                                                                                         for               When
 handrails.   On    a   rainy evening in November 2006, Johnson                 stopped    by    again         a visit.



                                                              2
No. 43752 -0 -II


he left, he   was    carrying    a   large   bag. Caldwell and Baxter heard a thump, went outside, and saw

Johnson on the ground. He said that he had slipped and went home.

         Johnson sued the Millers in November 2009, alleging that their negligence in maintaining

the steps had caused him personal injury. The complaint alleged that there was no landing on the

mobile      home    porch     and    that the   steps   had   no   handrail    and   insufficient   lighting.   The Millers


moved for summary judgment, which the trial court denied.

         When the Millers moved for reconsideration, the trial court granted summary judgment

on Johnson' s common law claims as well as his RLTA, res ipsa loquitor, and agency claims, but

it denied summary judgment on Johnson' s claim that the Millers were vicariously liable for their

tenants' acts on their behalf.


         After additional discovery, the Millers moved for summary judgment on the vicarious

liability   claim.   The trial court granted the motion, denied Johnson' s motion for reconsideration,

and entered a       judgment for the Millers            on all claims.    Johnson now appeals the orders granting

the   Millers'       motions        for   summary       judgment       and     the    order denying his motion for

reconsideration.




                                                         DISCUSSION


STANDARD OF REVIEW


            When reviewing a summary judgment order, we engage in the same inquiry as the trial

court.      Marshall     v.    Bally' s      Pacwest, Inc., 94 Wn.            App.   372, 377,      972 P. 2d 475 ( 1999).


Accordingly, our review is limited to the evidence and issues called to the trial court' s attention;

an argument neither pleaded nor argued to the trial court cannot be raised for the first time on

appeal. Silverhawk, LLC v. KeyBank Nat' l Ass' n, 165 Wn. App. 258, 265, 268 P. 3d 958 ( 2011).

A summary judgment order can be granted only if the pleadings, affidavits, depositions, and
                                                                   3
No. 43752 -0 -II



admissions on file show the absence of any genuine issue of material fact, and that the moving

                       to judgment                            law.   Marshall, 94 Wn.        App.        377.   We must
party is    entitled                       as   a matter of                                         at




consider all facts submitted and all reasonable inferences from the facts in the light most

favorable to the nonmoving party.                 Nivens v. 7 -11 Hoagy' s Corner, 133 Wn.2d 192, 198, 943

P. 2d 286 ( 1997).


           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).

           In a negligence case, the plaintiff. must prove duty, breach, causation, and damages.

Nivens, 133 Wn.2d         at   198.    Whether an actionable duty was owed to a plaintiff is a threshold

determination       and   a question       of   law that   we   review   de   novo.    Munich v. Skagit Emergency

Commc'      n   Cent., 175 Wn.2d 871, 877, 288 P. 3d 328 ( 2012). Johnson argues here that the Millers


are liable for his injuries because they violated duties of care owed to him under the common law

and the RLTA.


LANDLORD' S DUTY TO GUEST UNDER THE COMMON LAW


           A.       GENERAL PRINCIPLES


           Under the common law, a lessor owes no greater duty to guests of his tenant than he does

to the tenant himself.         Frobig      v.   Gordon, 124 Wn. 2d 732, 735, 881 P. 2d 226 ( 1994); Regan v.


City   of Seattle, 76 Wn.2d 501, 504, 458 P. 2d 12 ( 1969).                   A landlord is liable for an affirmative


act   of negligence,      as well     as   breach   of an express    covenant     to   repair.   Rossiter v. Moore, 59


Wn.2d 722, 725, 370 P. 2d 250 ( 1962);                Brown v. Hauge, 105 Wn. App. 800, 804, 21 P. 3d 716

 2001).     A landlord has no duty to repair noncommon areas absent an express covenant to repair.

                                                                21
No. 43752 -0 -II



Aspon     v.      Loomis, 62 Wn.     App.       818, 826, 816 P. 2d 751 ( 1991), review denied, 118 Wn.2d 1015


 1992).        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, review denied, 81 Wn.2d 1004 ( 1972).

             A landlord is liable to a tenant, however, for damages caused by a concealed, dangerous

condition          known to the landlord that            existed      at   the   beginning   of   the leasehold.   Frobig, 124

Wn.2d        at   735.   Although there is no duty to repair such a condition, the landlord must inform the

tenant    of      known dangers that the tenant is             not   likely   to discover. Aspon, 62 Wn.       App.   at   827. In


addition, a landlord generally is not responsible for conditions that develop or are created by the

tenant    after possession         has been transferred.              Frobig,     124 Wn.2d    at   736.   These rules apply to

tenants and guests alike. Frobig, 124 Wn.2d at 735 -36.

             Johnson does not contend that the Millers committed any affirmative act of negligence or

violated          any   express   covenant      to   repair.    The porch and steps at issue in this case constitute


noncommon areas, and               the   alleged     defects    at   issue —the    lack of a landing, railings, and adequate

lighting —were patent rather than latent defects.3 See Schedler v. Wagner, 37 Wn.2d 612, 615-

16, 225 P. 2d 213 ( 1950) (          stairway to leased premises intended solely for tenant' s exclusive use is

not common area),             overruled on other grounds by Geise v. Lee, 84 Wn.2d 866, 529 P. 2d 1054

    1975).        Furthermore, the tenants removed the railings and turned off the outside light after they

took possession of the property. Under these facts and the common law rules set forth above, the

Millers did          not violate   any   duty   of care.       See Sjogren v. Props. ofPac. Nw., LLC, 118 Wn. App.




3
    Johnson also argues on appeal that the steps were rotten. He did not plead this defect, however,
and it appears immaterial given his allegation that he fell down but not through the steps.

                                                                       5
No. 43752 -0 -II



144, 148 -49, 75 P. 3d 592 ( 2003) (             generally, landlord has no duty to protect tenant or guest from

open and obvious dangers).


          B.         VICARIOUS LIABILITY


          Johnson argues, however, that the rental agreement required the tenants to keep the

property in good condition and that the Millers are vicariously liable for Baxter' s actions in

attempting to repair the handrails because he was acting as their independent contractor.

Johnson.   supports         this   argument      by   citing   several     Restatement provisions.         See RESTATEMENT


 SECOND)       OF   PROPERTY § 19. 1 ( 1977) ( landlord who employs independent contractor to perform


duty owed to tenant is liable to tenant and third persons for harm caused by contractor' s failure

to   exercise reasonable care          to   make       leased property reasonably            safe);   RESTATEMENT ( SECOND)


OF   TORTS § 419 ( 1965) (           same);      RESTATEMENT ( SECOND) OF TORTS § 424 ( 1965) (                  one who by

statute or administrative regulation is under duty to provide specified safeguards for safety of

others is subject to liability to others for whose protection the duty is imposed for harm caused

by contractor' s failure to provide such safeguards or precautions).

          The Millers respond that at common law, an employer is not liable for the negligence of

an   independent       contractor.     Afoa v. Port of Seattle, 176 Wn.2d 460, 476, 296 P. 3d 800 ( 2013).

The Millers also point out that Johnson cites no case law to support application of these

Restatement sections where the alleged independent contractor is a tenant; indeed, there are no

Washington          cases    discussing     or   even    citing   sections     19. 1   or   419.. Section 19. 1 presumes the


existence of the duty to repair that is at issue in this case, and section 419 applies not under the

common         law but   where a statute or           lease   agreement    imposes     such a   duty.   RESTATEMENT, § 19. 1,


cmt. a;   RESTATEMENT, § 419                cmt. a.      Section 424 applies where work is being done, but not to

preexisting      conditions.        RESTATEMENT, §             424   cmt. a.     We reject Johnson' s claim of vicarious


                                                                     rel
No. 43752 -0 -II



liability    based     on   Baxter'     s    status   as    an    independent        contractor.        Johnson made the related


argument that Baxter was a subcontractor for whom the Millers were vicariously liable in

seeking reconsideration of the order granting summary judgment, and we see no abuse of

discretion in the court' s denial of reconsideration on this ground.


            C.        RESTATEMENT ( SECOND) OF PROPERTY: LANDLORD AND TENANT § 17. 6 ( 1977)


            Johnson also urges us to adopt the exception to the common law rule barring landlord

liability    for   open and obvious            dangers      set   forth in Restatement ( Second) of Property: Landlord


and   Tenant § 17. 6 ( 1977). It states,


                    A landlord is subject to liability for physical harm caused to the tenant and
            others upon the leased property with the consent of the tenant or his subtenant 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.

This rule applies even when the dangerous condition occurs in an area of the premises under the

tenant' s control so long as the defect constitutes a violation of either the implied warranty of

habitability or a duty imposed by statute or regulation. Lian v. Stalick, 115 Wn. App. 590,- 594,
62 P. 3d 933 ( 2003) ( Lian II).               To establish liability under section 17. 6, the tenant must show that

 1)   the    condition      was    dangerous, (           2) the landlord was aware of the condition and failed to

exercise         ordinary   care   to       repair   the    condition,       and (   3) the existence of the condition was a


                       implied warranty                                          duty              by                            Lian
violation of an                                      of   habitability   or a           created         statute or regulation.




 II, 115 Wn. App. at 595.

            Division Three of this court has adopted section 17. 6 to permit a tenant' s recovery for

 personal        injuries   caused   by      violations      of   the RLTA: "         The rule provides the tenant a remedy,


 supported by public policy, through which he or she may recover for injuries caused by the
                                                                         7
No. 43752 -0 -II



landlord'     s   breach    of   the RLTA."        Lian v. Stalick, 106 Wn. App. 811, 822, 25 P. 3d 467 ( 2001)

Lian I);      see also     Tucker     v.   Hayford, 118 Wn.         App.   246, 256, 75 P. 3d 980 ( 2003) (    citing Lian I

as recognizing cause of action in tort for violation of implied warranty of habitability under the

RLTA).         We recently applied section 17. 6 and the rule articulated in Lian II to a case where a

landlord declined to             repair an     inoperable   window     despite    notification   from his tenants. Martini


v.   Post,         Wn.     App. ,          313 P. 3d 473, 483 ( 2013).


             Although section 17. 6 extends a landlord' s tort liability for breach of an implied warranty

of habitability or a statute /regulation to a tenant' s guests, there are no Washington cases adopting

it for this       purpose.        See Pruitt      v.   Savage, 128 Wn.        App.    327, 332,     115 P. 3d 1000 ( 2005)


 declining to consider whether section 17. 6 applies to guest because of paucity of briefing on

issue);      Sjogren, 118 Wn. App. at 151 ( declining to apply section 17. 6 to guest' s personal injury

claim     because    she    had     other remedies).       Martini, which arose from the death of a tenant, did not


discuss its applicability to guests. 313 P. 3d at 482 n.6.

             Here, we need not decide whether section 17. 6 applies to injuries to a tenant' s guests


because even if section 17. 6 does apply, the Millers did not breach any duty of care owed under

either the implied warranty of habitability or the RLTA.

                      1.          IMPLIED WARRANTY OF HABITABILITY


             Under section 17. 6, a landlord is subject to liability if he or she has failed to exercise

reasonable         care    to    repair    a   condition   that   violates   an   implied warranty     of   habitability.   In


applying this aspect of the section 17. 6 test, we initially address whether an implied warranty of

habitability exists independent of the RLTA.

             In 1973, the Supreme Court declared that there is an implied warranty of habitability in

 all residential rental agreements.               Foisy    v.   Wyman, 83 Wn. 2d 22, 28, 515 P. 2d 160 ( 1973).         Foisy
No. 43752 -0 -II



arose out of an unlawful detainer action, and the court held that breach of an implied warranty of

habitability     was a   defense to   such an action.       83 Wn.2d       at   28.   The court reasoned that its result

was reinforced      by   the recently    enacted   RLTA.         Foisy,   83 Wn.2d          at   28.   Under the RLTA, the


landlord has a duty during the leasehold to " keep the premises fit for human habitation" and to

maintain certain specified items and areas. RCW 59. 18. 060.


         Since Foisy, there has been some inconsistency over whether the implied warranty of

habitability is an independent means of relief under the common law or whether it is available to

a   tenant solely   under   the RLTA.       Cases seemingly confining the warranty to the RLTA include

Pinckney    v.   Smith, 484 F.      Supp.    2d 1177, 1181 -82 ( W.D. Wash. 2007) ( " In Washington, the


warranty   of    habitability   has been    legislatively   codified      in the RLTA. "); Tucker,          118 Wn. App. at

256 ( recognizing        cause of   action for implied warranty            of   habitability       under   RLTA); Wright v.


Miller, 93 Wn.       App.    189, 200, 963 P. 2d 934 ( 1998) ( "            landlord may be liable to a tenant for

injuries caused by a defect in the rental unit if there was a violation of the rental agreement, a

violation of the common law duty of ordinary care, or if the defect was a violation of the implied

warranty    of   habitability   under   the RLTA "), review        denied, 138 Wn.2d 1017 ( 1999); and Howard


v. Horn, 61 Wn. App. 520, 524, 810 P. 2d 1387 ( prior to adoption of RLTA, landlord' s duty to

tenant was governed by implied warranty of habitability; this warranty was codified in RLTA),

review denied, 117 Wn.2d 1011 ( 1991).


          Division One of this court recently concluded, however, that the implied warranty of

habitability has     not   been   superseded    by    statute.    Landis & Landis Constr., LLC v. Nation, 171


Wn.    App.    157, 163, 286 P. 3d 979 ( 2012),          review        denied, 177 Wn.2d 1003 ( 2013).            The court


held that the implied warranty of habitability recognized in Foisy is available to a tenant as a

basis for legal      action against a      landlord    under     the   common         law   without regard     to the RLTA.
No. 43752 -0 -II



Landis, 171 Wn.        App.   at   163;   see also   Aspon, 62 Wn.         App.   at   825 ( " we cannot presume that the


Legislature intended the [ RLTA] to restrict application of the implied warranty of habitability ").

          We need not decide here whether the implied warranty of habitability provides a means

of   recovery independent          of   the RLTA.        In applying section 17. 6, courts look to statutory or

regulatory duties and the implied warranty of habitability simply as standards for determining
whether a landlord has failed to exercise reasonable care to repair a dangerous condition on the

leased    premises.    McIntyre      ex rel. v.   Philadelphia      Housing       Auth., 816 A.2d 1204, 1210 -11 ( Pa.


Commw. Ct.) ( citing RESTATEMENT § 17. 6 cmt. a), appeal denied, 836 A.2d 123 ( 2003).


          The appropriate standard of habitability is whether the violations present a substantial

risk of   future danger.      Landis, 171 Wn.           App.   at   166.    In Foisy, the warranty was breached by

defects that included a lack of heat, no hot water tank, broken windows, a broken door, water

running through the bedroom, an improperly seated and leaking toilet, a leaking sink, broken
water    pipes   in the   yard,     and    termites   in the basement.            83 Wn. 2d    at   24 -25.   In Landis, the


warranty    was   breached     by   an    infestation   of rodents.   171 Wn. App. at 166.

          There is no evidence that the defects at issue here posed a substantial risk of danger. The

four    conditions     Johnson      alleges —   no landing for the steps, no porch light, no handrails and

 slippery   steps — at most represented           relatively   minor       defects.     This is demonstrated by the fact

that the tenants and Johnson navigated the steps for several months without incident with those

 defects in   place.      Johnson argues that the defects constituted code violations, but there is no

 evidence that the attached porch was required to have a landing on the outside of the door at the

 time of its construction. And there was a light fixture in place that the tenants turned off as well




                                                               10
No. 43752 -0 -II


                                                    4
as    railings   that the tenants        removed.       The existence of these conditions did not create a


substantial risk of danger sufficient to violate the implied warranty of habitability. Accordingly,

the Millers are not subject to liability under section 17. 6 based on a breach of the implied

warranty of habitability.

                   2.         LANDLORD' S DUTIES UNDER THE RLTA


           Under section 17. 6, a landlord also is subject to liability if he or she has failed to exercise

reasonable care to repair a condition that violates a duty created by statute or administrative

regulation. Johnson argues that the Millers violated the RLTA, thereby triggering liability under

section 17. 6.


           The RLTA does not create a generally actionable duty on the landlord' s part to keep the

premises " safe"        or   fit for human habitation.        Any defects that allegedly violate the RLTA' s

warranty of habitability must constitute violations of the landlord' s specific duties as set forth in

RCW 59. 18. 060. Lian I, 106 Wn. App. at 816 -18; Aspon, 62 Wn. App. at 825 -26.

           Johnson contends that the Millers violated their duties under former RCW 59. 18. 060( 1)

and ( 2)   ( 2005), which required landlords to


                     1) [
                        m] aintain 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 substantially
           endangers or impairs the health or safety of the tenant;


4
     Building ordinances apply prospectively in the absence of language clearly indicating that they
are intended to apply retroactively. Sorensen v. W. Hotels, Inc., 55 Wn.2d 625, 635, 349 P. 2d
232 ( 1960). As support for his code violation argument, Johnson cites current ordinances stating
that manufactured homes must comply with the International Building Code ( IBC) and

specifying that     additions     that   are not   structurally   attached shall   comply   with   the IBC.   The porch
at issue was attached to the mobile home, and Johnson does not show that the ordinances he cites
were in effect at the time of that construction or that they were intended to apply retroactively.
Moreover, Johnson' s expert stated that the porch and steps were added between 1983 and 1996,
and the building code for 1985 did not appear to require a landing.
                                                              11
No. 43752 -0 -II


                   2) Maintain the roofs, floors, walls, chimneys, fireplaces, foundations,
        and all other structural components in reasonably good repair so as to be usable
        and capable of resisting any and all normal forces and loads to which they may be
        subjected.




        With    regard   to   subsection (   1),   as noted above, there is no evidence of any code violations

here.   In addition, even if a code violation occurred, the four alleged defects at issue did not

                endanger or      impair the tenants' safety.       With   regard   to   subsection (   2), even if the
substantially


steps were structural components,        they       were not unusable.    Of additional significance is the fact


that RCW 59. 18. 060 concludes its discussion of landlord duties with the following provision:

                   No duty shall devolve upon the landlord to repair a defective condition
        under this section, nor shall any defense or remedy be available to the tenant
        under this chapter, where the defective condition complained of was caused by
        the conduct of such tenant.


As the Supreme Court noted in Frobig, this provision parallels the common law principle that a

landlord is not responsible for conditions that develop or are created by a tenant after the

property has been leased.          124 Wn.2d at 736; see also Aspon, 62 Wn. App. at 826 ( review of

RLTA supports inference that legislature did not intend to impose duty on landlords to keep

noncommon areas safe from defects).


        Here, the tenants and not the Millers turned off the outside light and removed the

handrails.   As a result, under RCW 59. 18. 060, the Millers cannot have any liability based on the

RLTA for those       conditions.     And because these conditions did not arise from a violation of the


RLTA, the Millers are not subject to liability for them under section 17. 6

         Accordingly, the Millers are not subject to liability under section 17. 6 based on a

violation. The Millers did not violate any duty of care owed under the RLTA. Johnson does not

 allege the violation of any other statute or regulation. Accordingly, the Millers are not subject to

 liability under section 17. 6 based on a statutory or regulatory violation.

                                                             12
No. 43752 -0 -II



        Given this result, we need not determine whether Johnson may recover for any violation

of the implied warranty of habitability or the RLTA independent of section 17. 6.

        Affirmed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.


                                                  Ll




                                                  Q"-      BRINTNALL, P. J.




MAXA, J.




                                                 13
