WPI 130.02 Duty of Landlord—Common Areas

This instruction may be used for both residential and nonresidential tenancies.

This instruction should be used when the landlord either expressly or impliedly retains control over a part of the premises that is intended for the use of the tenants. The blank should be filled in with the proper items, such as stairs, hallway, etc.

In the first sentence, use the bracketed material only if the status of the area or the tenants' right of use is in issue. Use the bracketed second sentence if the case involves known or obvious dangers.

It is the landlord's duty to use reasonable care to keep the common premises in safe condition. This duty is statutory as to residential tenancies. RCW 59.18.060(3). However, the principle applies equally to non-residential premises. See Cherberg v. Peoples Nat. Bank, 88 Wn.2d 595, 564 P.2d 1137 (1977).

Although the general rule is that the landlord's duty applies only to latent defects, Washington courts have applied the exception of Restatement (Second) of Torts § 343A (1965) in the landlord-tenant context. See Sjogren v. Properties of Pac. N.W., L.L.C., 118 Wn.App.144, 149–50, 75 P.3d 592 (2003); Williamson v. Allied Group, Inc., 117 Wn.App. 451, 72 P.3d 230 (2003). That is, a landlord is liable even for an open and obvious dangerous condition when the landlord should anticipate that the tenant (or a guest of the tenant), will make use of the common area in spite of such open and obvious condition. See also Curtis v. Lein, 169 Wn.2d 884, 239 P.3d 1078 (2010) (regarding a tenant's use of a dock); Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 139, 875 P.2d 621 (1994). Accordingly, a bracketed sentence addressing known or obvious dangers was added to the instruction in 2012.

For a more detailed discussion of Restatement (Second) of Torts § 343A and guidelines for drafting a supplemental instruction, see the Comment to WPI 120.07 (Liability to Business and Public Invitees—Conditions of Premises—Condition Not Caused by the Owner or Occupier).

The landlord's duty to use reasonable care to keep common areas in a safe condition includes the removal of natural accumulations of snow and ice. Geise v. Lee, 84 Wn.2d 866, 529 P.2d 1054 (1975).