IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DONNA PHILLIPS, a single individual,          )
                                              )         No. 75911-6-1                 cpcn
                                                                                       „IQ!,
                     Appellant,               )                               -
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                                                        DIVISION ONE                  r"o
                                              )                                        -tA
              V.                              )                                         IZEO
                                                                                           P 1-7:
                                              )         UNPUBLISHED OPIN141              Lorna
KATHLEEN GRECO and JOHN DOE                   )                                          3 -cp
GRECO, a married couple, and their            )                                           F-tt
                                                                                            ,
marital community,                            )                                         -
                                              )                                               --
                     Respondent.              )         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.
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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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. Frobiq v. Gordon, 124 Wn.2d 732, 735, 881 P.2d


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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 II, 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.




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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 1 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.

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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 § 343 for 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 Negligence

       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


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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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      We decline to review the trial court's denial of Phillips's motion for

reconsideration.

      We affirm.




WE CONCUR:




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