WPI 130.00 Introduction

Rules concerning the liability of landlords for personal injury occurring on their property are related to the general rules for possessors of land discussed in WPI Chapter 120 (Trespassers, Licensees, Social Guests, and Invitees).

The general obligations of the landlord and tenant in a residential tenancy are codified in RCW Chapter 59.18 — the Residential Landlord Tenancy Act (RLTA). Except under specified and very limited circumstances, the parties may not waive the provisions of the RLTA. RCW 59.18.230. Any such exemption must be approved by the applicable prosecuting authority and cannot result in a violation of “the public policy of this state in favor of … ensuring safe, and sanitary housing ….” RCW 59.18.360.

A municipality may enact more stringent regulations for the protection of a tenant than are contained in RCW Chapter 59.18. For example, SMC 22.206.160 contains a “just cause” eviction requirement. See Faciszewski v. Brown, 187 Wn.2d 308, 386 P.3d 711 (2016).

In contrast, parties to a commercial lease have discretion in allocating duties and responsibilities through contract. There is no implied warranty that the premises are safe or fit for the purpose intended. Teglo v. Porter, 65 Wn.2d 772, 773, 399 P.2d 519 (1965). When the bargaining position of the parties is not unequal and “the distribution of risks entail[s] no elements of injustice,” the courts will, as a general rule, leave the parties in the positions that they bargained for. Gabl v. Alaska Loan & Inv. Co., 6 Wn.App. 880, 884, 496 P.2d 548 (1972).

The general status of a tenant (or the guest of a tenant) on leased property is that of an invitee, at least when the tenant has not strayed beyond the area of the leasehold. See, e.g., Curtis v. Lein, 169 Wn.2d 884, 239 P.3d 1078 (2010); Mucsi v. Graoch Assocs. Ltd. P'ship No. 12, 144 Wn.2d 847, 31 P.3d 684 (2001).

As to common areas or areas that remain in the control of the landlord, Washington has adopted Restatement (Second) of Torts § 343 (1965) in the landlord-tenant context. As summarized by the Supreme Court in Curtis:

Curtis v. Lein, 169 Wn.2d 884, 890, 239 P.3d 1078 (2010) (quoting Mucsi and citing with approval Restatement (Second) of Torts § 343 (1965)).

Restatement § 343 is not applicable to areas not within the landlord's control, as the landlord is not a “possessor” of such area. Pruitt v. Savage, 128 Wn.App. 327, 115 P.3d. 1000 (2005).

As indicated above, the scope of a landlord's duty to maintain, warn, and inspect traditionally has been a function of whether the area is a common area used by many tenants or reserved for the use of one tenant. The traditional rule may be changing, at least as to residential tenancies. See the Comment to WPI 130.06 (Duty of Landlord to Tenant—Residential Tenancies). The opinion in Pinckney v. Smith, 484 F.Supp.2d 1177 (W.D. Wash. 2007), contains an excellent summary of the evolution of the law regarding liabilities of landlords for non-common areas in Washington residential tenancies.