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From the desk of Jeff Eberhard: The Washington Supreme Court granted direct review (i.e., bypassing the court of appeals) on a claim of injury due to a pit bull. There were concerns this case might be the court’s opportunity to rewrite defense-friendly premises liability law. Instead, the Washington Supreme Court issued a landlord-favorable opinion.
Claims Pointer: In this opinion, the Washington Supreme Court held that a landlord cannot be liable for a tenant’s dog biting a guest under a theory of premises liability. This opinion explicitly lays out when a landlord can be considered a possessor of property, which is a paramount first-step in determining liability for a premises liability claim.
Blanco v. Sandoval, No. 98221-0, 2021 Wash. LEXIS 243 (Apr. 29, 2021)
This case stemmed from an attack by a pit bull that occurred at the home of the Gonzalezes and Sandovals, hereinafter collectively referred to as the “tenants.” The tenants resided in a single-family home that they rented from their landlords, the Hernandezes “defendants.” After about two-years of living in the home, the tenants acquired a pit bull puppy. The tenants notified the landlords about the puppy and its breed -a pit bull- and sought permission to build a wire fence around their yard for the dog. The landlords consented to the fence, but never inspected the fence themselves.
In May 2018, the plaintiff, Saralegui Blanco, visited the tenants’ home with a few friends to conduct a brief bible study outside. One of the tenants was speaking with the group in the driveway. During this time, the tenants’ dog was in the fenced area of the yard. As the conversation was wrapping up, the dog escaped the fenced-in area and proceeded to knock the plaintiff down, attack her, and bite her ear (allegedly all the way off). The tenants stated that they had never had any issues with the dog prior to this incident and he had never displayed aggressive behavior. Additionally, the tenants claimed that they regularly inspected the fence and the dog had never escaped before. However, witnesses claimed the fence was poorly constructed.
The plaintiff filed a negligence suit against both the tenants and the landlords, alleging theories of strict liability and premises liability. The landlord defendants moved for summary judgment, which the trial court granted. The plaintiff unsuccessfully moved for reconsideration and then petitioned the Washington Supreme Court for direct review. The direct review was granted. It should be noted that the landlords are the only defendants relevant to this appeal, so any use of the word “defendants” refers only to the landlord defendants.
To prevail on a negligence claim, a plaintiff must establish (1) duty; (2) breach; (3) injury; and (4) causation. Here, the issue was whether the defendants owed a duty to the plaintiff under a theory of premises liability. Under premises liability law, “a possessor of land is subject to liability for physical harm caused to [licensees or invitees] by a condition on the land.” The nature of the duty owed is dependent on the plaintiff’s status on the land. However, a prerequisite to this is that the defendant possessed the land where the injury occurred.
In Washington, a possessor of land is the one that occupies and controls the land. Generally, in the residential landlord-tenant context, the possession of the land is transferred to the tenant. However, there are situations where a landlord may maintain some control over portions of the property, such as common areas like stairs, hallways, and sidewalks in multi-unit complexes. Additionally, other states have considered situations where the landlords require permission to make alterations to the land a form of control relevant to the possession determination. The Washington Supreme Court clarified that in Washington, absent any unique circumstances, when the property is rented out, the tenant becomes the possessor of the property, minus common areas, even if the tenants are required to obtain consent for certain decisions on the property. This is even more apparent in leases of a single home residential properties, where the tenants clearly take over both possession and control of the leased land.
The Washington Supreme Court then briefly addressed whether a dog can be considered a dangerous condition on the land. The court acknowledge that in Washington, conditions on the land are generally considered physical features of the property. Here, the court stated that there was no reason to characterize the tenants’ dog as a dangerous condition. Additionally, the court noted that usually landlords are not responsible for conditions created by the tenants, conditions like the wire fence.
In this case, the entire property of the single-family residence was leased to the tenants and the driveway, where the injury occurred, was not a common area. The plaintiff highlighted that the tenants did obtain the defendants’ permission to own a dog and build a fence on the property. However, the Washington Supreme Court explicitly rejected a rule that would impose liability in this scenario. Rather, the defendants did not maintain or control the land and therefore did not possess it. Given that the defendants were not the possessors of the property, the premises liability inquiry stopped there. The defendants did not owe a duty to the plaintiff.
Further, the court noted that in this case, the dog could not be considered a dangerous condition on the land. Additionally, there was no evidence that the fence posed any potential danger or cause the plaintiff’s injury. Regardless, the tenants were the ones who built the fence, not the defendants, so even if the fence could be considered a dangerous condition (which the court did not believe it was), the defendants would not have been responsible for it. Ultimately, the Washington Supreme Court affirmed the trial court’s grant of the landlord defendants’ motion for summary judgment.
THE BIG PICTURE
A key aspect of premises liability is that the defendant must possess the property where the injury occurred. The Washington Supreme Court highlighted that in the residential landlord-tenant relationship, landlords are rarely the ones that possess the property for purposes of premises liability. Ultimately, this opinion provides support to bolster landlords’ defense arguments against premises liability claims on leased property.