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### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II JOHN JOHNSON and JANET JOHNSON, husband and wife, and the marital community thereof, Appellants,

V. TOBIN MILLER and CRYSTAL MILLER, husband and wife, and the marital community composed thereof, No. 43752 - 0 -II

UNPUBLISHED OPINION

QUINN-BRINTNALL, J.P.T. 1 — 

### John Johnson appeals the summaryjudgment dismissal of his negligence action against Tobin and Crystal Miller . 2 Johnson contends that he is entitled to 

### recoverfor injuries he received after slipping onthe steps ofa mobile homethatthe Millers were 

### renting to his stepdaughterand herboyfriend. Becausethe Millers did notbreach anyduty owed totheirtenants underthe impliedwarranty ofhabitability orthe Residential Landlord - TenantAct
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 ofhis lawsuit. 

### 1 Judge Christine Quinn - Brintnall is serving as ajudge pro tempore ofthe Court ofAppeals, 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 boughtthe property from Burns,they entered into awritten rental agreementwith Baxter on August 1, 2005. The agreement provided,

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

### 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 Propertywithout the Lessor's prior written approval. Clerk' s Papers at 36. 

### The front doorto 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 offthe outside light during badweatherbecause itoperated erratically in,the rain,andthey letthe lightfrom insidethe porch illuminatethe 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 

### oftheir 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 rememberthem coming bythe property afterthe handrails were removed. Johnson visited the home several times without incident after Baxter removed the handrails. On a rainy evening in November 2006, Johnson stopped by again for a visit. When 2No. 43752 - 0 -II he left, he was carrying a large 

### bag. Caldwell and Baxter heard athump, 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 thattheir negligence in maintaining 

### the steps had caused him personal injury. The complaint allegedthatthere was no landing onthe
mobile home porch and that the steps had no handrail and insufficient lighting. The Millers 

### moved for summaryjudgment,which thetrial courtdenied. When the Millers moved for reconsideration, the trial court granted summaryjudgment on Johnson's common law claims as well as his RLTA, res ipsa loquitor, and agency claims, but 

### itdenied summaryjudgment on Johnson's claimthatthe Millers were vicariously liable fortheir 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 ajudgment 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 summaryjudgment 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, LLCv. KeyBank Nat'lAss' n, 165 Wn.App. 258, 265, 268 P.3d 958 (2011). 

### A summaryjudgment order can be granted only ifthe pleadings, affidavits, depositions, and 3No. 43752 - 0 -II 

### admissions on file show the absence ofany genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Marshall, 94 Wn. App. at 377. We must 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 ofdiscretion. Rivers

v. Wash. State Conference ofMason 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 thatthe Millers 

### are liable forhis injuries becausetheyviolated duties ofcare owedto him underthe common law and the RLTA. LANDLORD' S DUTYTO GUEST UNDER THE COMMON LAW

A. GENERAL PRINCIPLES 

### Underthe common law, a lessor owes no greater dutyto guests ofhistenantthan he does to the tenant himself. Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P. 2d 226 ( 1994); Regan v. City ofSeattle, 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 dutyto repair noncommon areas absent an express covenantto repair. 21No. 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 atenant, 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 dutyto 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 ofnegligence 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 ofa 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) (

### stairwayto leased premises intended solelyfortenant'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 offthe outside light after they 

### took possession ofthe property. Underthese facts and the common law rules setforth 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. 5No. 43752 - 0 -II 144, 148 -

49, 75 P.3d 592 ( 2003) ( 

### generally, landlord has no dutyto protecttenant or guestfrom 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 forwhose protection the duty is imposed for harm caused by contractor's failureto provide such safeguards orprecautions). The Millers respond that at common law, an employer is not liable for the negligence of

an independent contractor. 

### Afoa v. Port ofSeattle, 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 ofthe duty to repair that is at issue in this case, and section 419 applies not underthe

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 relNo. 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) ofProperty: Landlord
and Tenant § 17.6 ( 1977). It states,



### A landlord is subjectto liability for physical harm caused to the tenant and 

### others upon the leased property with the consent ofthe 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 ofthe condition is in violation of: 

### 1) an implied warranty ofhabitability; or 

### 2) aduty created by statute or administrative regulation. This rule applies even when the dangerous condition occurs in an area ofthe premises under the 

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

### habitabilityor 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 undersection 17.6, the tenant must showthat 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
violation of an implied warranty of habitability or a 

### duty created by statute or regulation. Lian 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 7No. 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 ofimplied warranty ofhabitability underthe 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 liabilityforbreach ofan implied warranty 

### ofhabitabilityorastatute / regulationto atenant'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 ofbriefing 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 ofa tenant, did not 

### discuss its applicabilityto guests. 313 P.3d at482 n.6. Here, we need not decide whether section 17.6 applies to injuries to a tenant's guests 

### because even ifsection 17.6 does apply,the Millers did not breach any duty ofcare owed under eitherthe implied warranty ofhabitability orthe 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 ofthe section 17.6 test, we initially address whether an implied warranty of habitability exists independent ofthe RLTA. 

### In 1973, the Supreme Court declared that there is an implied warranty ofhabitability in
all residential rental agreements. Foisy v. Wyman, 83 Wn.2d 22, 28, 515 P.2d 160 ( 1973). FoisyNo. 43752 - 0 -II arose out ofan unlawful detainer action, and the court held that breach ofan 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 ofreliefunderthe common laworwhether 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 ifthere was a violation ofthe rental agreement, a 

### violation ofthe common lawduty ofordinary care, or ifthe defectwas aviolation ofthe implied warranty ofhabitability 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 ofRLTA, landlord's dutyto tenant was governed by implied warranty ofhabitability;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 ofthe implied warranty ofhabitability "). 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 asubstantial risk ofdanger. 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 thatthe attached porch was required to have a landing on the outside ofthe door at the time of its construction. And there was a light fixture in place that the tenants turned off as well

10No. 43752 - 0 -II

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

### substantial risk ofdanger sufficient to violate the implied warranty ofhabitability. Accordingly, 

### the Millers are not subject to liability under section 17.6 based on a breach of the implied warranty ofhabitability.

2. LANDLORD' S DUTIES UNDER THE RLTA 

### Under section 17.6, a landlord also is subjectto liability ifhe 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 partto keep the premises " safe" or fit for human habitation. 

### Any defects that allegedly violate the RLTA's 

### warranty ofhabitability must constitute violations ofthe landlord's specific duties as setforth 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 ofthe tenant;

4 

### Building ordinances apply prospectively inthe absence oflanguage clearly indicating thatthey 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 showthat the ordinances he cites 

### were in effect at the time ofthat 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, 

### andthe building code for 1985 did not appearto require a landing. 11No. 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 ofresisting 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 ofany code violations here. In addition, even if a code violation occurred, the four alleged defects at issue did not substantially endanger or impair the tenants' safety. With regard to subsection ( 2), even if the steps were structural components, they were not unusable. Of additional significance is the fact that RCW 59. 18.060 concludes its discussion oflandlord 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 ofthe 

### RLTA,the Millers are not subjectto liabilityforthem undersection 17.6 

### Accordingly, the Millers are not subject to liability under section 17.6 based on a violation. The Millers did notviolate any dutyofcare owed underthe RLTA. Johnson does not allege the violation ofany other statute or regulation. Accordingly,the Millers are not subjectto liabilityunder section 17.6 based on a statutory or regulatoryviolation. 12No. 43752 - 0 -II 

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

### ofthe implied warrantyofhabitability orthe RLTA independent ofsection 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.

MAXA, J. Ll Q"- BRINTNALL, P.J.

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