POWERS v. HOLLINGER FAMILY PROPERTIES, 54536-1-I (Wash.App. 4-25-2005)

No. 54536-1-IThe Court of Appeals of Washington, Division One.
Filed: April 25, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No. 00-2-18082-9. Judgment or order under review. Date filed: 06/15/2004. Judge signing: Hon. Michael J Heavey.

Counsel for Appellant(s), Anthony York (Appearing Pro Se), 3328 Olympus Drive, Bremerton, WA 98310.

Andretta York (Appearing Pro Se), 29208 — 34th Avenue South, Federal Way, WA 98003.

Counsel for Respondent(s), A. Graham Greenlee, Attorney at Law, 2001 Western Ave Ste 200, Seattle, WA 98121-2114.

PER CURIAM.

Judith Powers injured herself in a fall from the steps leading to the rear entrance of the home that she was renting. Because Powers did not present evidence that the steps were defective, that they violated applicable codes, or that they precluded her from having a safe means of access to the home, we affirm.

Powers entered into a rental agreement for a single family residence with Hollinger Family Properties. Powers used the rear entrance to the home to enter and leave the house. The approach consisted of two concrete steps leading up to a deck area attached to the back of the house.

Approximately one week after moving into the house, Powers slipped on the top step as she was leaving the house. She fell, her knees hitting the concrete path and her face hitting the grass. Powers eventually required total knee replacement surgery in both knees, and back surgery.

Powers sued Hollinger, alleging that the condition of the rear steps was evidence of negligence and a violation of the implied warranty of habitability under the Residential Landlord Tenant Act. Hollinger moved for summary judgment dismissal. The trial court granted the motion. Powers appeals.

We review summary judgment orders de novo. We consider the facts and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. However, bare assertions that a genuine material issue of fact exists will not defeat a summary judgment issue in the absence of actual evidence. Trimble v. Washington State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000).

BREACH OF IMPLIED WARRANTY OF HABITABILITY
In all contracts for renting of premises, oral or written, there is an implied warranty of habitability. Foisy v. Wyman, 83 Wn.2d 22, 28, 515 P.2d 160 (1973). Generally, the warranty applies “whenever the defects in a particular dwelling render it uninhabitable or pose an actual or potential safety hazard to its occupants.” Lian v. Stalick, 106 Wn. App. 811, 818, 25 P.3d 467
(2001). The Residential Landlord Tenant Act does not, however, create a generally actionable duty; a landlord’s duties are limited to those specifically listed in the Act. Lian, 106 Wn. App. at 816. Here, the applicable portions of the Act are those that require the premises to be maintained in accordance with laws and regulations; require structural components to be maintained in reasonably good repair; and the duty to make repairs when necessary. RCW 59.18.060 (1), (2), and (5). In her answers to interrogatories and in her deposition, Powers stated that the only claimed defect in the stairs was that the top stair was narrower, from front to back, than the bottom step. In moving for summary judgment, Hollinger submitted the declaration of the property manager attesting that the stairs were in good repair, and maintained through a professional maintenance service. The manager also submitted photographs of the stairs to demonstrate that the stairs had adequate space for a person to safely descend.

In her response to the motion, Powers attempted to establish the defective nature of the stairs through the declaration of Dr. Robert Smith. Smith, a senior safety engineer from a forensic consulting firm, does “slip, trip and fall investigations and reconstructions.”[1] In Smith’s opinion, the condition of the rear steps “rendered the home unfit for its intended purpose as a reasonably safe residence. This requirement was especially critical because the Plaintiff used the rear stairway as the sole means of entering and exiting the home.”[2]

In Smith’s opinion, several conditions made the rear steps dangerous. First, narrowness of the top step provided “insufficient frictional resistance on the stairway surface to keep her shoe on the step”.[3] The porch surface exacerbated this condition by protruding out over the narrow top step, effectively reducing its depth even further. Second, the edge of the top step was difficult to discern because of the uniform appearance of the stairway surface as a whole. Third, use and exposure to the elements over the years had reduced the slip resistance of the top step. Smith made this assessment based on photographs submitted to him by Powers in which the stairs have a “speckled” appearance.[4] Smith asserts that the speckled appearance arises because the underlying stones are exposed by wear and tear on the tread level of the concrete. Such stone, he opines, “tends to be smoother than the original concrete surface” and a “smoother surface means a lower slip resistance”.[5]

Smith also concludes that the stairs were not maintained in a safe condition as required by the Uniform Building Code, adopted by the City of Blaine. The cited section is a general section relating to the maintenance of all structures covered by the code. It requires that all “buildings and structures, both existing and new, and all parts thereof, shall be maintained in a safe and sanitary condition.” UBC Chapter 34, sec. 3402. Smith’s assessment of the stairs was not based upon an examination of the stairs in question. The lack of personal observation severely undermines his assertion that the edge of the top step was difficult to discern. He offers no expertise or standards to support a conclusion that a two-step entrance is unsafe when the steps are of different dimensions. He does not explain how wide a step must be in order to provide sufficient “frictional resistance”. And the record contains no evidence to confirm Smith’s assumptions that the speckles reportedly visible in the photograph were underlying stones, that the stones were smoother than the original concrete surface, and that the presence of the stones made the step too slippery and too uneven to be safe. His opinions are pure speculation. In a response to a motion for summary judgment, the nonmoving party may not rely on speculation. The affidavit of Smith is too conclusory to meet Powers’ burden on summary judgment to show that the rear steps were unsafe.

COMMON LAW NEGLIGENCE
Powers also argues that Hollinger is liable for her injuries under a common law negligence theory. A landlord is liable to a tenant for harm caused by latent defects that existed at the time the parties entered into the lease, and of which the landlord had actual knowledge, but failed to inform the tenant. Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P.2d 226 (1994). And a landlord may be held liable even for open and obvious dangers in limited circumstances where the landlord should reasonably anticipate harm to the tenant despite the obviousness of the danger. Sjogren v. Properties of the Pacific Northwest, LLC, 118 Wn. App. 144, 149, 75 P.3d 592 (2003). The condition of the steps was not concealed or obscured. Powers had used the steps as her means of access into the home for a week before she fell. She acknowledged that she was aware of the difference in depth of the two steps and felt that the top step was “awkward to stand on.”[6]
Because the steps were clearly observable, there was no latent defect. See Howard v. Horn, 61 Wn. App. 520, 523, 810 P.2d 1387
(1991).

Even if one might argue that the condition of the steps was obscure, Powers has not shown that the condition of the steps was in fact dangerous. Again, her only evidence is the conclusory opinion of Smith that the “condition of the rear steps was so dangerous that the landlord should have anticipated the harm that could result”.[7] The stairs violated no codes that Powers can cite to, and at no time prior to the fall, had Powers, any prior tenant, or the professional maintenance service advised the landlord of any problem or defect with the steps.

The judgment is affirmed.

COLEMAN, KENNEDY and BECKER, JJ.