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WPI 130.01.01 Nonresidential Tenancies—Duty of Landlord—Rented Premises—Promise to Put and Keep...

6 WAPRAC WPI 130.01.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 130.01.01 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part X. Owners and Occupiers of Land

Chapter 130. Landlord and Tenant

WPI 130.01.01 Nonresidential Tenancies—Duty of Landlord—Rented Premises—Promise to Put and Keep in Repair

A landlord is subject to liability for physical harm to [his or her tenant] [or] [others who come upon the land with the consent of the tenant] caused by a condition of disrepair existing on the land, if:

(a) the landlord has contracted by a covenant in the lease [or other instrument] to keep the land or premises in repair;

(b) the landlord fails to exercise reasonable care to perform the contract; and

(c) the disrepair creates an unreasonable risk to persons upon the land or premises which the performance of the landlord's agreement would have prevented.

NOTE ON USE

Use this instruction for nonresidential tenancies, when the landlord has contracted to maintain the premises. Actions concerning residential tenancies are covered by WPI 130.06 (Duty of Landlord to Tenant—Residential Tenancies). However, this instruction may also be used in a residential tenancy if the landlord covenanted to maintain or repair in a manner that goes beyond the requirements of the Residential Landlord Tenant Act.

This instruction may need to be modified depending on the specific contract at issue.

This instruction will need to be slightly modified if the injured person is on the property as an invitee of a sublessee.

Use bracketed material as applicable.

COMMENT

This instruction covers fact patterns in which recovery for tort damages is based on a violation of a contractual provision. It is based on the provisions of Restatement (Second) of Torts § 357 (1965). The prior version of this provision from the First Restatement was cited favorably by the court in Teglo v. Porter, 65 Wn.2d 772, 399 P.2d 519 (1965).

Comment c to Section 357, Restatement (Second) of Torts (1965), provides:

c. The lessor's duty under the rule stated in this Section is not merely contractual, although it is founded upon a contract. It is a tort duty. It extends to persons on the land with the consent of the lessee, with whom the lessor has made no contract. The lessor is not an insurer of the safety of the premises, and is not liable for harm caused even to his lessee by a failure to make the land absolutely safe. He is liable only if his failure to do so is due to a failure to exercise reasonable care to that end.
Like many other tort duties to keep land in safe condition, the lessor's duty to exercise care to repair is not delegable, and he is liable as fully where the failure to make the premises reasonably safe is due to the negligence of an independent contractor to whom he has entrusted the performance of his contract, as where it is due to his own negligence. See § 419.

Comment c is substantially similar to comment a of the Restatement (First) of Torts § 357 (1934), which was quoted favorably by the Teglo court.

This has long been the rule in Washington. See, e.g., Mesher v. Osborne, 75 Wash. 439, 134 P. 1092 (1913); accord, Brown v. Hauge, 105 Wn.App. 800, 21 P.3d 716 (2001).

In 2012, the instruction was rewritten to more closely follow the language of the Restatement (Second) of Torts § 357 (1965).

[Current as of September 2018.]

End of Document