Gerlach v. The Cove Apartments, LLC

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE AUGUST 27, 2020
SUPREME COURT, STATE OF WASHINGTON
AUGUST 27, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

KIMBERLY J. GERLACH, individually,

Petitioner,

v.
NO. 97325-3
THE COVE APARTMENTS, LLC, a
Washington corporation; and WEIDNER
PROPERTY MANAGEMENT, LLC, a
Washington corporation,
EN BANC
Respondents,

and

WEIDNER APARTMENT HOMES, a Filed:________________
August 27, 2020
Washington business entity, d/b/a THE
COVE APARTMENTS, and WEIDNER
ASSET MANAGEMENT LLC, a
Washington corporation,

Defendants.

STEPHENS, C.J.⸺After a night of drinking with friends, Kimberly Gerlach

fell from the second-story balcony of her boyfriend’s unit at the Cove Apartments
Gerlach v. The Cove Apartments, LLC, et al., 97325-3

when the decayed balcony railing gave way. Gerlach sued, arguing Cove’s failure

to repair the railing caused her fall and violated Cove’s duties to tenants and their

guests. A jury agreed and found Cove was 93 percent at fault for Gerlach’s injuries.

The Court of Appeals overturned this verdict and remanded for a new trial, reasoning

the trial court erred by excluding evidence of Gerlach’s blood alcohol concentration

(BAC) and by not dismissing Gerlach’s statutory claim under the Residential

Landlord-Tenant Act of 1973 (RLTA), ch. 59.18 RCW.

We reverse the Court of Appeals. The trial court did not abuse its discretion

by excluding BAC evidence that was only minimally relevant to Cove’s affirmative

defense and risked prejudicing the jury against Gerlach. While we agree that the

trial court should not have allowed Gerlach’s RLTA claim, this error alone does not

justify a new trial because the jury’s verdict remains valid as to Gerlach’s common

law claim. Accordingly, we reinstate the verdict in favor of Gerlach.

FACTS

One evening in October 2012, Gerlach went to a birthday party with her

boyfriend, Nathan Miller, and their friends, Brodie and Colin Liddell.1 After the

party, the four friends went out to a bar. When the bar closed for the night, Gerlach

and Brodie made their way back to Miller’s unit at the Cove Apartments while Miller

1
Because Brodie and Colin Liddell share a surname, we use their first names for
the sake of clarity. We intend no disrespect.

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and Colin went to a convenience store. As Gerlach headed up toward Miller’s

second-story apartment, Brodie stayed outside to smoke.

A short time later, Brodie heard a sharp snap and turned to see Gerlach

plummeting headfirst from the balcony of Miller’s apartment onto the concrete steps

below. The decayed balcony railing fell beside her. Brodie called 911 and checked

Gerlach’s vital signs. Miller and Colin arrived while paramedics were en route.

The parties dispute how Gerlach fell. Gerlach argued at trial that she was

standing on the balcony and leaning on the railing when it gave way, while Cove

argues Gerlach likely fell while trying to climb over the railing onto the balcony.

But no one actually saw Gerlach fall, and Gerlach herself has no recollection of that

evening.

Either way, Gerlach was unconscious and unresponsive when paramedics

arrived. King County Medic One rushed her to Harborview Medical Center, where

Gerlach was admitted with a traumatic brain injury, skull fractures, and cerebral

hemorrhaging that required surgery. Harborview also conducted a blood test less

than an hour after Gerlach fell, which showed her BAC was approximately 0.219.

PROCEDURAL HISTORY

Gerlach sued Cove Apartments for negligently causing her injuries, arguing

Cove’s failure to repair the decayed railing violated its common law duties to tenants

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and their guests, its duties as a landlord under the RLTA, and its duties under its

lease agreement with Gerlach’s boyfriend. Cove moved for summary judgment on

the second and third claims, arguing Gerlach could not prevail because she was not

Cove’s tenant. The trial court agreed and granted summary judgment for Cove on

Gerlach’s claim under the lease, but ruled Gerlach could recover under the RLTA

despite not being a tenant. Gerlach’s RLTA and common law claims went to trial.

At trial, Cove claimed the “complete defense to an action for damages for

personal injury” available under RCW 5.40.060 when “the person injured . . . was

[(1)] under the influence of intoxicating liquor or any drug at the time of the

occurrence causing the injury . . . and [(2)] that such condition was a proximate cause

of the injury . . . and [(3)] the trier of fact finds such person to have been more than

fifty percent at fault.” RCW 5.40.060(1). To support this defense, Cove sought to

offer into evidence the results of the blood test taken by Harborview showing

Gerlach’s BAC was approximately 0.219, as well as expert testimony relating to

those results. 2

Gerlach moved to exclude the blood test results and related testimony under

Evidentiary Rule (ER) 403, arguing the probative value of that evidence was

2
Extrapolating from the Harborview blood test, Cove expert witness Dr. Frank
Vincenzi would have testified that Gerlach’s BAC would have been roughly 0.238 at the
time she fell.

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substantially outweighed by the danger of unfair prejudice. The trial court was

initially inclined to admit that evidence but decided to exclude it after Gerlach

admitted the fact of her intoxication. 3 The trial court also excluded the testimony of

Dr. Thomas Wickizer, a health economist who would have challenged Gerlach’s

claimed medical expenses, because his testimony would not have helped the jury to

determine whether those expenses were reasonable.

The jury found both Cove and Gerlach negligently contributed to Gerlach’s

injuries, with Cove bearing 93 percent of the fault and Gerlach bearing 7 percent.

Without objection from either party, the jury used a verdict form that did not

distinguish between negligence premised on Cove’s common law duties and

negligence premised on Cove’s duties under the RLTA. Cove appealed, assigning

error to the trial court’s denial of summary judgment on Gerlach’s RLTA claims, its

exclusion of the BAC evidence and related testimony, nearly a dozen jury

instructions or proposed instructions, and other issues.

The Court of Appeals reversed and remanded for a new trial. Relevant to our

review, the Court of Appeals held the trial court abused its discretion by excluding

the BAC evidence and related expert testimony and this error was prejudicial to

3
The trial court described Gerlach’s admission as a stipulation between the parties.
Cove insists it never agreed to such a stipulation. The distinction between an admission
and a stipulation is not relevant here, where the jury was unambiguously told Gerlach had
been intoxicated when she fell.

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Cove’s ability to present its defense. Gerlach v. Cove Apts., LLC, 8 Wn. App. 2d

813, 817, 446 P.3d 624 (2019). The Court of Appeals also concluded the trial court

erred by denying Cove’s motion for summary judgment on Gerlach’s RLTA claims

and by instructing the jury that Cove owed Gerlach a duty under the RLTA, because

“Washington has adopted § 17.6 [of the Restatement (Second) of Property: Landlord

and Tenant (Am. Law Inst. 1977)] only in cases where a landlord’s negligence is

alleged by a tenant.” Id. at 832-33. Without further analysis, the Court of Appeals

declined to extend Washington’s adoption of § 17.6 to tenants’ guests.

Gerlach petitioned this court for review, which we granted. 4 Gerlach v. Cove

Apts., LLC, 193 Wn.2d 1037 (2019).

ANALYSIS

This case centers on two decisions made by the trial court: one about whether

to admit evidence and one about the meaning of the RLTA. We review the

evidentiary decision for abuse of discretion, deferring to the trial court’s judgment

unless we are “convinced that ‘no reasonable person would take the view adopted

by the trial court.’” Gilmore v. Jefferson County Pub. Transp. Benefit Area, 190

Wn.2d 483, 495, 415 P.3d 212 (2018) (internal quotation marks omitted) (reinstating

4
We also granted review of issues Cove conditionally raised in its answer to the
petition for review⸺namely, the exclusion of Dr. Wickizer’s testimony regarding the
reasonableness of Gerlach’s medical expenses and the scope of the trial on remand.

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verdict overturned by Court of Appeals because trial court had excluded expert

testimony (quoting State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45

(2017))). In contrast, we give no deference to the trial court’s interpretation of the

RLTA. See Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d

4 (2002) (“The meaning of a statute is a question of law reviewed de novo.” (citing

State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001), overruled in part on

other grounds by State v. Barber, 170 Wn.2d 854, 248 P.3d 494 (2011))).

I. The Trial Court Did Not Abuse Its Discretion by Excluding the Results of
Gerlach’s Hospital Blood Draw and Related Expert Testimony

Cove argues the trial court abused its discretion by excluding from evidence

the BAC results of Gerlach’s blood work at Harborview and related expert

testimony, which Cove claims would have shown Gerlach’s intoxication made her

more than 50 percent at fault for her injuries. The Court of Appeals agreed. Gerlach

counters that the trial court acted within its discretion under ER 403 because that

evidence would have been far more unfairly prejudicial to Gerlach than probative of

Cove’s affirmative defense. Because the trial court’s decision was within the bounds

of its considerable discretion, we agree with Gerlach and reverse the Court of

Appeals.

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A. The Trial Court Appropriately Exercised Its Discretion under ER 403 To
Exclude Minimally Probative and Speculative Evidence That Posed a
Significant Risk of Unfair Prejudice

Cove argues the trial court erred by excluding evidence central to its

affirmative defense. But “[t]rial courts enjoy ‘wide discretion in balancing the

probative value of evidence against its potentially prejudicial impact.’” Salas v.

Hi-Tech Erectors, 168 Wn.2d 664, 671, 230 P.3d 583 (2010) (quoting State v.

Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997)). Even if relevant, “evidence

may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice.” ER 403.

“When evidence is likely to stimulate an emotional response rather than a

rational decision, a danger of unfair prejudice exists.” Salas, 168 Wn.2d at 671

(citing State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995)). Though rare,

the danger of unfair prejudice can exist even when the evidence at issue “is

undeniably probative of a central issue in the case.” Carson v. Fine, 123 Wn.2d 206,

224, 867 P.2d 610 (1994) (citing United States v. 0.161 Acres of Land, 837 F.2d

1036, 1041 (11th Cir. 1988)). Here, the trial court appropriately determined Cove’s

proffered evidence was only minimally probative of the issues relevant to its

affirmative defense and found the relative risk of prejudice against Gerlach was

unacceptably high.

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To prevail on its affirmative defense, Cove was required to prove that (1)

Gerlach was intoxicated when she fell, (2) her intoxication was a proximate cause

of her injury, and (3) she was more than 50 percent at fault. RCW 5.40.060(1). At

trial, Gerlach admitted to the fact of her intoxication.5 Cove therefore needed to

prove only causation and degree of fault to avoid liability for Gerlach’s injuries.

Cove sought to admit the BAC results of Gerlach’s blood work at Harborview

as foundation for the expert testimony of Dr. Frank Vincenzi and Dr. Michael

Carhart.6 Dr. Vincenzi would have testified that “essentially everybody will be

impaired” at the blood alcohol level Harborview’s test found in Gerlach. 2 Verbatim

Report of Proceedings (VRP) (June 14, 2017) at 1533. In an offer of proof, Dr.

5
If a plaintiff does not admit to being intoxicated, RCW 5.40.060(1) uses the same
standard as required for criminal convictions under RCW 46.61.502. That statute provides
two methods by which parties can prove a person was under the influence of drugs or
alcohol. First, a party may prove that a person was under the influence per se by showing
their BAC was 0.08 or higher through a timely blood or breath test that complies with state
toxicology standards. RCW 46.61.502(1)(a). Second, a party may show a person is “under
the influence of or affected by intoxicating liquor” by other evidence. RCW
46.61.502(1)(c). By providing two different methods to prove intoxication, “the legislature
was drawing a distinction between tests performed by the State and its agents . . . and other
tests, such as tests done . . . for medical treatment.” City of Seattle v. Clark-Munoz, 152
Wn.2d 39, 49, 93 P.3d 141 (2004). So tests done for medical purposes are admissible to
prove intoxication under RCW 46.61.502(1)(c), but they are “subject to the usual
evidentiary checks” as any other proffered evidence, including ER 403. Id.
6
The Court of Appeals held the trial court did not err by excluding Dr. Carhart’s
testimony because “Dr. Carhart is not an expert in how alcohol affects the human body,
and his testimony on this issue would have been speculative.” Gerlach, 8 Wn. App. 2d at
827. Cove did not challenge this holding in its answer to the petition for review, so it is
not at issue here.

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Vincenzi opined that Gerlach’s “[p]sychomotor impairment” was “critical in this

case” because, given her BAC results, Gerlach was probably “staggering, stumbling,

holding on to objects for balance, falling down or lost [her] balance, and of course

that’s in my opinion what happened here.” Id. at 1532-33.

But in response to questions from Gerlach’s counsel, Dr. Vincenzi confirmed

that his testimony would be about “population averages,” Id. at 1536, and that he

could not “specifically say anything about Ms. Gerlach herself,” id. at 1540. Dr.

Vincenzi did not know “what her burn-off ration would be for alcohol,” “what her

absorption rate would be for alcohol,” “what her metabolic rate would be with regard

to alcohol,” or “when at any particular time that Kim Gerlach allegedly consumed

any alcohol on October 26 or October 27, 2012.” Id. at 1536-37. Pressed on whether

he had “actual facts to apply to Ms. Gerlach in this matter,” Dr. Vincenzi replied that

he “ha[d] her body weight and [had] the average volume on distribution in females

and base my calculations on those,” but conceded “average volume in females” was

“based upon a population average, [and] not Ms. Gerlach.” Id. at 1539.

Gerlach moved to exclude this testimony, arguing that “an expert cannot

testify on how an intoxicant is likely to affect an individual on any particular

occasion” because, absent evidence that the intoxicant actually had that effect on the

individual, such testimony would be speculative and unfairly prejudicial. Clerk’s

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Papers (CP) at 974 (citing State v. Lewis, 141 Wn. App. 367, 387, 166 P.3d 786

(2007) (holding trial court properly excluded speculative testimony from medical

examiner on the general effects of high levels of methamphetamine, including

causing aggressive and irrational behavior, because medical examiner could not

speak to whether methamphetamine had those effects on the individual in question

and there was no other evidence that it had)). The trial court agreed with Gerlach,

explaining,

We don’t have a very clear understanding of exactly what—of what
occurred in this accident, except that we know that the railing failed, and we
know that because it was on the ground along with the plaintiff and we can
see the holes and the rot in the guardrail and that seems to be without any
question.
So we don't know what the plaintiff did immediately prior to the
railing failing. We know that she—well, we now know that she had had a
significant amount of alcohol to drink, enough to make her intoxicated at the
time of the event.
But whether or not that intoxication has anything at all to do with the
actual accident, until we have something further, facts further to support that
allegation, it’s more prejudicial than probative to allow Dr. Vincenzi to come
in and opine how the plaintiff was acting immediately before she fell.

1 VRP (June 15, 2017) at 1562 (emphasis added). The trial court ruled Dr. Vincenzi

would not be allowed to testify for any purpose, including to establish “that even at

the .08 level, [t]here are . . . impairments people have when they drink,” id. at 1563,

because such generalized testimony would be merely “speculative,” CP at 1553.

The trial court’s ruling is sound. The problem with “speculative testimony is

that the trier of fact will be forced to speculate as to causation without an adequate

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factual basis.” Volk v. DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254 (2016) (citing

Little v. King, 160 Wn.2d 696, 705, 161 P.3d 345 (2007)). Cove offered the BAC

results and Dr. Vincenzi’s testimony to prove Gerlach’s intoxication was a

proximate cause of her injuries and that she was more than 50 percent at fault. But

like the medical examiner in Lewis, Dr. Vincenzi’s proffered testimony was merely

speculative as to Gerlach’s behavior. He was going to speak to the general effects

of intoxication, not the effect it actually had on Gerlach. Dr. Vincenzi acknowledged

he could not speak to whether Gerlach experienced or acted on such effects, so his

testimony would not have helped the jury determine whether Gerlach’s actions

caused her injuries or increased her degree of fault. “Such speculative testimony is

not rendered less speculative or of more consequence to the jury’s determination

simply because it comes from an expert.” Lewis, 141 Wn. App. at 389.

Dr. Vincenzi’s testimony would have been only minimally probative of causation

and fault because he could not link Gerlach’s intoxication to any actual behavior

leading to her fall. 2 VRP (June 14, 2017) at 1540.

Worse, Dr. Vincenzi’s testimony about the general effects of high levels of

intoxication risked prejudicing the jury against Gerlach because it was “likely to

stimulate an emotional response rather than a rational decision.” Salas, 168 Wn.2d

at 671. In his offer of proof, Dr. Vincenzi indicated his testimony essentially would

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have been that Gerlach was so drunk she must have been impaired and making risky

decisions. As Gerlach’s counsel cautioned the trial court, “a blood alcohol [level]

three times the limit [is] going to be really hard for a jury to get out of their brains”—

at that point, “the bell’s been rung.” 1 VRP (June 15, 2017) at 1555-56.7 That risk

is exacerbated where a medical doctor speculates about the impact such a blood

alcohol level may have had on Gerlach without any regard to her actual behavior.

Excluding such speculative, minimally probative evidence and testimony as too

unfairly prejudicial to Gerlach was well within the trial court’s discretion under ER

403.8

B. The Court of Appeals Erred by Suggesting Higher Blood Alcohol Level
Alone Is Relevant to an Intoxicated Plaintiff’s Fault and Causation

Misreading our decision in Peralta v. State, 187 Wn.2d 888, 389 P.3d 596

(2017), the Court of Appeals wrongly suggested that high BAC levels alone could

be evidence of a plaintiff’s heightened degree of fault or causation. Gerlach, 8 Wn.

App. 2d at 824 (holding “the trial court abused its discretion in excluding the

7
The Court of Appeals agreed that “Gerlach’s high blood alcohol level could
stimulate an emotional response in a jury,” but believed it had high enough probative value
that the trial court abused its discretion by excluding it. Gerlach, 8 Wn. App. 2d at 821.
8
Cove also challenges the trial court’s exclusion of Dr. Wickizer’s expert testimony,
which would have compared Gerlach’s medical expenses to Medicare reimbursement rates.
The Court of Appeals upheld that exclusion because “[e]vidence that, on average, a
procedure costs less than the amount charged or that Gerlach’s physicians accept a lesser
payment for services from Medicare is not helpful to the jury in determining whether her
medical expenses were reasonable.” Id. at 829. We agree and find no error.

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evidence of Gerlach’s blood alcohol level at the time of the accident and the

exclusion prejudiced Cove’s ability to prove its affirmative defense”). The Court of

Appeals here determined Peralta did not support the trial court’s decision to exclude

evidence in this case because our Peralta opinion noted that the State “offered

substantial evidence supporting its intoxication defense” even after the plaintiff

admitted she was intoxicated, Peralta, 187 Wn.2d at 900 n.6, while “the exclusion

of Gerlach’s blood alcohol evidence resulted in a complete absence of evidence as

to the extent of her intoxication,” Gerlach, 8 Wn. App. 2d at 822. This reasoning is

flawed in three ways.

First, the Court of Appeals erred by failing to examine the facts in Peralta to

understand why the State had been able to offer evidence of the plaintiff’s

intoxication even after her admission. Unlike Gerlach, the plaintiff in Peralta argued

she was not bound by her admission that she was intoxicated, so the State was able

to offer additional evidence of her intoxication in case the trial court allowed the

plaintiff to retract or alter her admission. See Peralta v. State, 191 Wn. App. 931,

944, 366 P.3d 45 (2015) (“Peralta argues that the trial court erred when it ruled that

her response to the request for admission that she was ‘under the influence of

intoxicating liquors’ constituted an admission that Peralta was under the influence

for purposes of RCW 5.40.060(1).”). Our decision in Peralta does not support

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allowing additional evidence of the plaintiff’s intoxication beyond her admission;

instead, that decision turned on whether the trial court appropriately instructed the

jury that she was bound by that admission.

The Court of Appeals also erred by suggesting Gerlach’s BAC results alone

could determine her degree of fault. Gerlach admitted the fact of her intoxication—

establishing the first prong of Cove’s affirmative defense—so the BAC evidence

would need to relate to the second and third prongs to be admissible. See RCW

5.40.060(1). But the BAC results are not relevant to questions of causation and fault

because these questions turn on evidence of a plaintiff’s behavior, not intoxication

status. While being intoxicated can certainly influence a person’s behavior, the fact

of intoxication does not prove a person was acting in any particular way. Whether

and to what degree a person is at fault depends on how that person acted or failed to

act, not their precise degree of intoxication. As noted, the trial court properly

concluded that Dr. Vincenzi’s testimony about blood alcohol levels was speculative

as to Gerlach’s behavior. See 1 VRP (June 15, 2017) at 1562 (“[W]hether or not

[Gerlach’s] intoxication has anything at all to do with the actual accident, until we

have something further, facts further to support that allegation, it’s more prejudicial

than probative to allow Dr. Vincenzi to come in and opine how the plaintiff was

acting immediately before she fell.”). Here, without other evidence or testimony

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that could connect Gerlach’s BAC results to behavior that caused her fall, the BAC

results were not relevant to whether her intoxication was a proximate cause of her

injuries or to her degree of fault.

The Court of Appeals further erred by concluding the “lack of [other] evidence

of Gerlach’s degree of intoxication prejudiced Cove’s ability to prove its affirmative

defense.” Gerlach, 8 Wn. App. 2d at 823. The Court of Appeals accurately noted

that “[n]one of Gerlach’s companions testified as to how many drinks Gerlach

consumed that night or that she was extremely intoxicated.” Id. But Cove, not

Gerlach, bears the burden of submitting evidence sufficient to prove its affirmative

defense. See Olpinski v. Clement, 73 Wn.2d 944, 950, 442 P.2d 260 (1968)

(“Defendant has the burden of proof on the issues of his affirmative defense.”). The

fact that Cove did not have other evidence sufficient to prove its affirmative defense

does not show the trial court abused its discretion by excluding the BAC results. All

it shows is that Cove lacked sufficient evidence to prove the second and third prongs

of its affirmative defense.

For these reasons, the Court of Appeals was wrong to overturn the trial court’s

discretionary decision to exclude prejudicial evidence of Gerlach’s blood alcohol

level and related expert testimony. Because this was the ground on which the Court

of Appeals overturned the jury’s verdict, we reverse and reinstate the verdict in favor

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of Gerlach. We next consider the two bases for the jury’s verdict: the RLTA and

landlords’ common law duties to tenants’ guests.

II. The RLTA Does Not Support a Cause of Action for Personal Injury By the
Guest of a Tenant, but the Common Law Does

The legislature enacted the RLTA, ch. 59.18 RCW, to govern the rights,

responsibilities, and remedies of residential landlords and tenants. Faciszewski v.

Brown, 187 Wn.2d 308, 314, 386 P.3d 711 (2016). The RLTA requires tenants to

pay rent on time, keep their units clean, properly dispose of all waste, restore the

premises to their original condition when moving out, and more. RCW 59.18.130.

The act requires landlords to “keep the premises fit for human habitation” by

fulfilling particular duties, including by maintaining “the structural components” of

the dwelling unit “in reasonably good repair so as to be usable.” RCW 59.18.060.

Gerlach alleged that by failing to repair the decayed railing, Cove violated its

duties as a landlord under the RLTA and negligently caused her injuries. Cove

moved for summary judgment on Gerlach’s RLTA claims on the ground that, as a

tenant’s guest, she is not protected by the act. The trial court denied Cove’s motion

and later instructed the jury that a landlord can be liable to a tenant’s guest for

violating the RLTA. We review questions of law, including the legal accuracy of

jury instructions, de novo. Joyce v. Dep’t of Corr., 155 Wn.2d 306, 323, 119 P.3d

825 (2005).

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This court has never decided whether or to what extent landlords are liable in

tort for violations of their duties under the RLTA. But the Court of Appeals has

issued a series of decisions adopting a section of the Restatement and holding that

“tenant[s have] a remedy, supported by public policy, through which he or she may

recover for injuries caused by the landlord’s breach of the RLTA.” Lian v. Stalick,

106 Wn. App. 811, 822, 25 P.3d 467 (2001) (Lian I); see also Lian v. Stalick, 115

Wn. App. 590, 62 P.3d 933 (2003) (Lian II); Tucker v. Hayford, 118 Wn. App. 246,

75 P.3d 980 (2003); Martini v. Post, 178 Wn. App. 153, 313 P.3d 473 (2013);

Phillips v. Greco, 7 Wn. App. 2d 1, 433 P.3d 509 (2018).

Restatement § 17.6 provides:

A landlord is subject to liability for physical harm caused to the tenant
and others upon the leased property with the consent of the tenant or his
subtenant by a dangerous condition existing before or arising after the tenant
has taken possession, if he has failed to exercise reasonable care to repair the
condition and the existence of the condition is in violation of:
(1) an implied warranty of habitability; or
(2) a duty created by statute or administrative regulation.

In Lian I, Division Three of the Court of Appeals “recognized a cause of

action for the implied warranty of habitability under the [RLTA] according to

subpart (1) of the Restatement.” Tucker, 118 Wn. App. at 256 (citing Lian I, 106

Wn. App. at 822). In Tucker, Division Three recognized a cause of action for tenants

under the second subsection of the Restatement. Id. at 257-58 (“We conclude that

the Washington Residential Landlord-Tenant Act of 1973 provides a cause of action

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for the injury sustained [by the tenant] here.”). Division Two soon followed suit.

See Martini, 178 Wn. App. at 170-71 (holding § 17.6 “appl[ies] to injuries suffered

by a tenant due to a landlord’s breach of the implied warranty of habitability or a

breach of a duty specified by statute or regulation” (citing Lian I, 106 Wn. App.

811)).

Here, Division One ruled that the trial court erred because “Washington has

only adopted § 17.6 in cases where a landlord’s negligence is alleged by a tenant”

and that “section has not been adopted in the context of claims by nontenants.”

Gerlach, 8 Wn. App. 2d at 832-33 (citing Phillips, 7 Wn. App. 2d at 6-7). This is

an accurate description based on the nature of the claims in the prior cases, but the

Court of Appeals did not conduct any further analysis as to whether the Restatement

section extends a duty to tenants’ guests, including Gerlach.

Determining the reach of a landlord’s liability under the Restatement requires

closer examination of the existing precedent. The series of Court of Appeals cases

addressing the section inappropriately conflate the common law implied warranty of

habitability with a landlord’s statutory duties under the RLTA requiring the landlord

to “keep the premises fit for human habitation.” RCW 59.18.060. See Tucker, 118

Wn. App. at 256 (recognizing “a cause of action for the implied warranty of

habitability under the Landlord-Tenant Act according to subpart (1) of the

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

Restatement.” (citing Lian I, 106 Wn. App. at 822)). Although the RLTA does

require landlords to maintain basic standards of habitability, we have never held that

that statutory language creates a warranty, much less that it subsumes the common

law warranty of habitability. Rather, our cases have maintained a distinction

between the duties imposed by the RLTA and the common law implied warranty of

habitability. See Foisy v. Wyman, 83 Wn.2d 22, 28-29, 515 P.2d 160 (1973)

(recognizing implied warranty of habitability distinct from the RLTA, which the

legislature passed between the filing and resolution of the case); see also Landis &

Landis Constr., LLC v. Nation, 171 Wn. App. 157, 163, 286 P.3d 979 (2012) (“The

implied warranty of habitability recognized in Foisy is available to a tenant as a basis

for legal action against a landlord under the common law, independent of the

Residential Landlord-Tenant Act.”). Because the implied warranty of habitability is

independent of the RLTA, the Court of Appeals was wrong to conflate the two in

the series of decisions partially adopting § 17.6.

The Court of Appeals here also erred by not sufficiently inquiring as to why

Washington law would not support the extension of § 17.6 to nontenants like

Gerlach. A number of Washington cases support the proposition that a landlord

owes the same duty to a tenant’s guest or employee as the landlord owes to the

tenant. See, e.g., Regan v. City of Seattle, 76 Wn.2d 501, 505, 458 P.2d 12 (1969)

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

(holding landlord is liable “‘to his tenant or the tenant’s guest’” for a negligent repair

(quoting Rossiter v. Moore, 59 Wn.2d 722, 725, 370 P.2d 250 (1962))). The Court

of Appeals did not adequately address why these cases do not support the full

adoption of § 17.6, which states a “landlord is subject to liability for physical harm

caused to the tenant and others upon the leased property with the consent of the

tenant.” RESTATEMENT § 17.6 (emphasis added).

We take this opportunity to clarify Washington law by recognizing a cause of

action for tenants and their guests for personal injuries caused by a landlord’s

violation of the common law warranty of habitability, but not under the RLTA. 9

A. Washington Law Supports Partially Adopting Restatement § 17.6 by
Recognizing a Cause of Action for Violation of the Implied Warranty of
Habitability as to Both Tenants and Their Guests

In its early years, Washington’s landlord-tenant law embraced the doctrine of

caveat emptor: “let the buyer beware.” BLACK’S LAW DICTIONARY 276 (11th ed.

2019). This doctrine provides that a tenant rents property at their own risk, so the

landlord cannot be liable for any injuries the tenant suffers for having taken that risk.

As we explained in Teglo v. Porter:

It is the general rule, as between landlord and tenant, that, absent
agreement to the contrary or a fraudulent concealment of obscure defects, the

9
Gerlach’s unchallenged common law claims were based on premises liability, not
the implied warranty of habitability. But because Washington courts’ treatment of
Restatement § 17.6 has conflated the common law implied warranty of habitability with
the RLTA, we disentangle and explain both here.

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

maxim caveat emptor applies, and the tenant takes the demised premises as
he finds them. There is no implied warranty or covenant on the landlord’s
part that the premises are safe or fit for the purpose intended.

65 Wn.2d 772, 773, 399 P.2d 519 (1965) (citing Hughes v. Chehalis School Dist.

No. 302, 61 Wn.2d 222, 377 P.2d 642 (1963)).

The doctrine of caveat emptor was “formulated at a time when the economy

was primarily agrarian.” RESTATEMENT § 5.1 cmt. b. It “was based on the premise

that the tenant had ample opportunity to inspect the leased property” for defects and

that any such defects “were generally reparable by hand by the tenant himself.” Id.

But “the modern residential tenant is severely injured by such a rule.” Id. The

“complexities of construction” in modern homes and apartments mean that most

tenants cannot “conduct an inspection of sufficient depth to discover even major

defects.” Id. And even “when hidden defects become known, they are seldom

within the ability of the tenant to repair. Id.

We recognized this new reality in Foisy, 83 Wn.2d at 28. There, a tenant

argued his landlord’s failure to repair a number of defects—“including a lack of heat,

no hot water tank, broken windows, a broken door, water running through the

bedroom, an improperly seated and leaking toilet, a leaking sink in the bathroom,

broken water pipes in the yard and termites in the basement”—relieved the tenant of

his obligation to pay rent. Id. at 24-25. We agreed, noting,

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

“When American city dwellers, both rich and poor, seek ‘shelter’ today, they
seek a well known package of goods and services—a package which includes
not merely walls and ceilings, but also adequate heat, light and ventilation,
serviceable plumbing facilities, secure windows and doors, proper sanitation,
and proper maintenance.”

Id. at 27 (quoting Javins v. First Nat’l Realty Corp., 138 U.S. App. D.C. 369, 428

F.2d 1071, 1074 (1970)). We reasoned there was “little justification for following a

rule that was developed for an agrarian society and has failed to keep pace with

modern day realities.” Id. at 28. We concluded “the old rule of caveat emptor has

little relevance to the renting of premises in our society” and held “that in all

contracts for the renting of premises, oral or written, there is an implied warranty of

habitability.” 10 Id.

By recognizing an implied warranty of habitability for residential rental

property and abandoning caveat emptor in this area, “we discarded the very legal

foundation and justification for the landlord’s immunity in tort for injuries to the

tenant or third persons.” Sargent v. Ross, 113 N.H. 388, 397, 308 A.2d 528, 533-34

(1973). Absent such immunity, whether a landlord is liable to a tenant’s guest for

10
Washington is not alone in abandoning caveat emptor in favor of recognizing an
implied warranty of habitability for residential rental property. See, e.g., Young v.
Garwacki, 380 Mass. 162, 168, 402 N.E.2d 1045, 1049 (1980) (“In the line of cases
creating and applying the implied warranty of habitability, we have overthrown the
doctrine of caveat emptor.” (citing Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 396
N.E.2d 981 (1979))).

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

injuries caused by the landlord’s breach of the implied warranty of habitability is a

straightforward question of common law negligence.

We have long held that landlords owe the same common law duties to tenants

and their guests. See, e.g., Regan, 76 Wn.2d at 505 (holding landlord is liable “‘to

his tenant or the tenant’s guest’” for a negligent repair (quoting Rossiter, 59 Wn.2d

at 725)); Flannery v. Nelson, 59 Wn.2d 120, 123, 366 P.2d 329 (1961) (holding

landlord liable to employee of tenant for hidden defect); Andrews v. McCutcheon,

17 Wn.2d 340, 345, 135 P.2d 459 (1943) (landlord has duty to maintain premises

reserved under its control in a safe condition for use by “tenants and their invitees”);

McCourtie v. Bayton, 159 Wash. 418, 423-24, 294 P. 238 (1930) (recognizing “the

guest, servant, etc., of the tenant is usually held to be so identified with the tenant

that his right of recovery for injury as against the landlord is neither more nor less

than that of the tenant would be”).

Our decision in Foisy recognizing landlords’ common law duties under the

implied warranty of habitability is entirely consistent with this jurisprudential trend.

There, we observed that housing conditions that violate the implied warranty of

habitability “are a health hazard, not only to the individual tenant, but to the

community which is exposed to said individual.” 83 Wn.2d at 28. That community

includes the tenant’s guests, who may be exposed to health hazards presented by a

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

dangerous condition on the leased premises in violation of the implied warranty of

habitability. Consistent with the reasoning in Foisy, we adopt Restatement § 17.6 to

the extent that we recognize a landlord’s liability in tort to tenants and their guests

for breach of the implied warranty of habitability.

B. The RLTA Does Not Imply a Cause of Action for Tenants’ Guests, So
We Decline To Adopt the Remainder of Restatement § 17.6

In addition to recognizing tort claims for breach of the implied warranty of

habitability in subsection (1), Restatement § 17.6 subsection (2) outlines a cause of

action in tort for injuries tenants or their guests sustain as a result of the landlord’s

breach of specific statutory (or regulatory) duties. As the Restatement observes,

“[T]ort liability of the landlord in this situation tends to increase the likelihood that

the will of the legislature as expressed in the statute or regulation with be

effectuated.” RESTATEMENT § 17.6 cmt. a. Allowing tenants to sue their landlords

for personal injuries sustained as a result of the landlord’s breach of their duties

would provide a powerful incentive for landlords to fulfill their statutory duties. See

RESTATEMENT § 17.6 reporter’s note 8 (noting “it will be difficult to insulate the

landlord from tort liability when his failure to meet his duty results in injury to the

tenant”). And “[i]t would be disconcerting if the tenant who fell through the rotten

floor of his kitchen could withhold rent until the hole was repaired, but could not

recover for the personal injury he had sustained.” Id. But the liability theory the

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

Restatement recognizes in this subsection originated in a theory of negligence per se

that Washington has largely abandoned. Compare RESTATEMENT § 17.6 cmt. a

(suggesting violation of a landlord’s statutory duty is sufficient to establish landlord

liability in tort because “the violation constitutes negligence per se”), with RCW

5.40.050 (“A breach of a duty imposed by statute, ordinance, or administrative rule

shall not be considered negligence per se, but may be considered by the trier of fact

as evidence of negligence.”).

Rather than adopt the second part of the Restatement unquestioningly, we

apply our usual test to determine the existence and scope of an implied cause of

action arising from statute. See Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258

(1990). In Bennett, we established a three-part test to determine whether a statute

supports an implied cause of action:

[F]irst, whether the plaintiff is within the class for whose “especial” benefit
the statute was enacted; second, whether legislative intent, explicitly or
implicitly, supports creating or denying a remedy; and third, whether
implying a remedy is consistent with the underlying purpose of the
legislation.

Id. at 920-21. Here, the first factor is dispositive as to Gerlach’s RLTA claim.

The legislature did not enact RLTA for the benefit of tenants’ guests but,

rather, to regulate the legal relationships between landlords and tenants. The RLTA

mentions tenants’ guests or invitees only in the context of a tenant’s duties to ensure

their family and friends do not damage the unit, violate the law, or otherwise

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

compromise the terms of their lease. See, e.g., RCW 59.18.130(4) (imposing duty

on tenant to not “permit any member of his or her family, invitee, licensee, or any

person acting under his or her control” to “intentionally or negligently destroy,

deface, damage, impair, or remove any part of the structure or dwelling”),

.550(1)(d)(ii) (“The tenant may not allow the guests to use, possess, or share alcohol,

illegal drugs, controlled substances, or prescription drugs without a medical

prescription, either on or off the premises”), .060(15) (providing no “defense or

remedy [is] available to the tenant under this chapter, where the defective condition

complained of was caused by the conduct of such tenant, his or her family, invitee,

or other person acting under his or her control”). No RLTA provisions speak to a

landlord’s obligations to a tenant’s guest. Gerlach, as a guest of Cove’s tenant, is

therefore not within the class for whose benefit the legislature enacted the RLTA.

Because the first Bennett factor is dispositive, we need not address the remaining

factors to decide the RLTA does not support an implied cause of action for tenants’

guests. Accordingly, the trial court erred by allowing the jury to consider Gerlach’s

claim under this theory of liability.

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

III. Though the Trial Court Erred by Allowing Gerlach’s RLTA Claim To
Proceed, the Jury’s Verdict Rests on a Valid Common Law Liability Theory
and Cove Failed To Object to the Undifferentiated Verdict Form

As noted above, the jury in this case used a verdict form that did not

distinguish between negligence premised on Cove’s common law duties and

negligence premised on Cove’s duties under the RLTA. A party challenging the

validity of one theory supporting an undifferentiated verdict is not entitled to a new

trial unless it objected to the use of the verdict form at trial and proposed a special

verdict form to clarify the jury’s findings. Davis v. Microsoft Corp., 149 Wn.2d 521,

539-40, 70 P.3d 126 (2003). Cove failed to do so here and therefore is not entitled

to a new trial on this ground.

CONCLUSION

The trial court did not abuse its discretion by excluding evidence that would

have been speculative, prejudicial, and only minimally probative of Cove’s

affirmative defense. While the trial court did err by allowing the jury to consider

Gerlach’s claim based on Cove’s alleged breaches of the RLTA, that error is not a

basis to invalidate the jury’s undifferentiated verdict, which also rests on common

law negligence. Accordingly, we reverse the Court of Appeals and reinstate the

verdict in favor of Gerlach.

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Gerlach v. The Cove Apartments, LLC, et al., 97325-3

WE CONCUR:

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

No. 97325-3

GORDON McCLOUD, J. (concurring in part/dissenting in part)—In this

case, the plaintiff’s intoxication and the effects of that intoxication on her mattered

tremendously. If the jury had found that Kimberly Gerlach’s intoxication

proximately caused her injuries and that she was more than 50 percent at fault, then

a duly enacted statute would have barred her from collecting money damages for

her injuries. RCW 5.40.060(1). Yet the trial court excluded the most probative

piece of evidence about her intoxication: her extremely high blood alcohol

concentration (BAC). The trial court also barred an expert witness from testifying

about the effects of such a high BAC. This constitutes an abuse of discretion; I

would therefore affirm the Court of Appeals’ decision to reverse.

Separately, I agree with the majority that Gerlach may not recover under the

Residential Landlord-Tenant Act of 1973 (RLTA), ch. 59.18 RCW, and I join that

portion of the majority’s opinion. I do not, however, join the majority’s extended

1
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

analysis of the implied warranty of habitability; that analysis is pure dicta. I

therefore respectfully concur in part and dissent in part.

FACTS

After a night of heavy drinking, Gerlach fell from the second-story balcony

of her then-boyfriend’s apartment. The railing of the balcony fell with her.

Nobody saw exactly what happened, and Gerlach does not remember the fall. At

trial, the parties presented the jury with two opposing theories.

Gerlach argued that she entered her boyfriend’s apartment, went out onto the

balcony, and leaned against the railing—which snapped and sent her plummeting

to the ground. 1 Verbatim Report of Proceedings (VRP) (July 10, 2017) at 3569-

75. According to this theory, alcohol had nothing to do with the fall, and Gerlach

was not at fault.

Cove Apartments, on the other hand, argued that Gerlach never made it

inside the apartment. Instead, Gerlach fell while attempting to climb over the

second-story balcony’s railing and onto the balcony, from the outside. Id. at 3620-

24. According to Cove, Gerlach made the poor decision to climb because she was

extremely drunk, and she was unable to successfully scale the balcony for the same

reason. Id. at 3638-43. According to this theory, alcohol played a major role in

the accident, and Gerlach was at fault.

2
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

As mentioned above, intoxication can be a “complete defense to an action

for damages for personal injury.” RCW 5.40.060(1). To succeed on this defense,

Cove had to prove that (1) Gerlach “was under the influence of intoxicating liquor”

at the time of the accident, (2) the intoxication “was a proximate cause of the

injury,” and (3) she was more than 50 percent at fault. Id. This statutory defense

reflects a legislative determination that “[w]hen the intoxicated party is at fault for

a majority of his or her injuries, . . . the intoxicated party is responsible for the

entire amount of damages.” Estate of Kelly v. Falin, 127 Wn.2d 31, 49, 896 P.2d

1245 (1995).

Thus, whether Gerlach was intoxicated and how that intoxication affected

her ability to function were major issues for trial. Cove had evidence that Gerlach

was not simply intoxicated, but was severely intoxicated. A blood draw performed

at the hospital after the accident revealed that Gerlach’s BAC at the time of the fall

was 0.238, or “essentially three times the legal limit for operation of a motor

vehicle.” Clerk’s Papers (CP) at 511. Dr. Frank F. Vincenzi, an emeritus

professor of pharmacology at the University of Washington, estimated that based

on this BAC, Gerlach had consumed around 14 drinks on the night of the accident

and had approximately “9 drinks[’] worth of alcohol present in her body at the time

of the incident.” Id. As a result of this calculation, Dr. Vincenzi opined that

3
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

“alcohol-induced impairment of both judgment and psychomotor function were

proximate causes of the tragic outcome.” Id. His conclusion, if accepted by the

jury, would have satisfied the first two prongs of Cove’s statutory defense: (1) that

Gerlach was intoxicated at the time of the accident and (2) that the intoxication

“was a proximate cause of the injury.” RCW 5.40.060(1). And it would have

allowed the jury to evaluate the third element, whether Gerlach was more than 50

percent at fault. Id.

But the trial court barred that evidence from ever reaching the jury,

thwarting Cove’s ability to prove its statutory defense. I believe this was error, and

I would affirm the Court of Appeals on this point.

Separately, I concur in the majority’s interpretation of the RLTA. But I

decline to endorse the majority’s dicta regarding the implied warranty of

habitability. Thus, I respectfully concur in part and dissent in part.

ANALYSIS

I. The trial court erred by excluding Gerlach’s BAC and Dr. Vincenzi’s
testimony

“The Legislature enjoys the power to define and change tort law in our

state.” Morgan v. Johnson, 137 Wn.2d 887, 896, 976 P.2d 619 (1999) (citing

Geschwind v. Flanagan, 121 Wn.2d 833, 841, 854 P.2d 1061 (1993)). “In

exercising that prerogative, the Legislature has chosen to curtail the rights of

4
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

certain intoxicated persons in enacting RCW 5.40.060.” Id. Cove argued that

Gerlach’s right to recover in this case was barred by RCW 5.40.060. “We are

obliged to give the plain language of a statute its full effect, even when its results

may seem unduly harsh.” Geschwind, 121 Wn.2d at 841 (citing State v. Pike, 118

Wn.2d 585, 591, 826 P.2d 152 (1992)).

Courts presume relevant evidence is admissible, and the party seeking its

exclusion bears the burden of establishing unfair prejudice. ER 403; Erickson v.

Robert F. Kerr, MD, Inc., 125 Wn.2d 183, 190, 883 P.2d 313 (1994) (citing

Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994)). “Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice . . . .” ER 403. “Evidence is not rendered inadmissible

under ER 403 just because it may be prejudicial.” Carson, 123 Wn.2d at 224.

After all, “nearly all evidence will prejudice one side or the other in a lawsuit.” Id.

Instead, the courts are concerned with unfair prejudice, or “prejudice caused by

evidence of ‘“scant or cumulative probative force, dragged in by the heels for the

sake of its prejudicial effect.”’” Id. at 223 (quoting United States v. Roark, 753

F.2d 991, 994 (11th Cir. 1985) (quoting United States v. McRae, 593 F.2d 700, 707

(5th Cir. 1979))). But “where the evidence is undeniably probative of a central

issue in the case,” the likelihood that the danger of unfair prejudice will

5
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

substantially outweigh the evidence’s probative value is “‘quite slim.’” Id. at 224

(quoting United States v. 0.161 Acres of Land, 837 F.2d 1036, 1041 (11th Cir.

1988)). “A trial court would necessarily abuse its discretion if it based its ruling on

an erroneous view of the law.” Wash. State Physicians Ins. Exch. & Ass’n v.

Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993) (citing Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990)).

Of course, evidence of Gerlach’s severe intoxication would have prejudiced

her. It might have barred her from recovering, depending on what the jury

determined. But the evidence wasn’t unfairly prejudicial. It wasn’t “‘“dragged in

by the heels for the sake of its prejudicial effect.”’” Carson, 123 Wn.2d at 223

(quoting Roark, 753 F.2d at 994 (quoting McRae, 593 F.2d at 707)). Rather,

evidence of her intoxication went to the heart of Cove’s statutory defense. That

evidence was undeniably probative of central issues in this case: whether she was

intoxicated, how intoxicated she was and hence how likely it was that her

intoxication was a proximate cause of her injuries, and whether she was more than

50 percent at fault. Accordingly, the likelihood that ER 403 balancing would favor

exclusion of this exceedingly probative evidence was “‘quite slim.’” Id. at 224

(quoting 0.161 Acres of Land, 837 F.2d at 1041).

6
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

Nevertheless, the trial court excluded the evidence. A review of the record

shows that the trial court based its ruling on an erroneous view of the law. Thus,

the trial court “necessarily abuse[d] its discretion.” Wash. State Physicians Ins.

Exch. & Ass’n, 122 Wn.2d at 339 (citing Cooter & Gell, 496 U.S. at 405).

A. The trial court wrongly believed that Gerlach’s intoxication was
relevant only to the first element of Cove’s defense

Despite expert testimony to the contrary, the trial court failed to appreciate

that Gerlach’s severe intoxication could have proximately caused her injuries. For

instance, the court initially rejected Dr. Vincenzi’s conclusion that Gerlach’s

extreme intoxication had anything to do with her alleged decision to climb over the

balcony or her inability to do so successfully, reasoning that “whether she was

drinking or not drinking, if she climbed on the outside of the apartment and fell,

then she’s contributorily negligent and I don’t know that the presence of alcohol

has anything to do with that physical fact.” VRP (Apr. 7, 2017) at 56. The court

then instructed the parties to separate the issue of Gerlach’s intoxication from the

issue of her contributory negligence: “There’s two issues here. There’s a

consumption of alcohol on the part of the plaintiff and there’s a contributory

negligence, and I’d like to separate them, because I think they should be

separated . . . .” VRP (May 5, 2017) at 102. Of course, Cove’s entire argument,

supported by Dr. Vincenzi’s expert opinion, was that Gerlach made the negligent

7
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

decision to climb and was unable to do so because she was intoxicated. Gerlach’s

intoxication and alleged negligence were intertwined and inseparable.

After additional argument, the trial court seemed to reverse course, ruling

that Gerlach’s BAC reading was admissible. 1 VRP (June 14, 2017) at 1333. The

court correctly reasoned that it was up to the jury to decide whether the amount of

alcohol Gerlach consumed was a proximate cause of her injury. Id.

Still determined to keep out the BAC reading, Gerlach offered the trial court

a compromise: she would simply admit to being intoxicated, and the trial court

would exclude the reading. Id. at 1355. Gerlach argued that her offer to

compromise would settle the first element of Cove’s statutory defense (that she

was intoxicated) and “would eliminate the undue prejudice of the blood alcohol

reading.” Id. Over Cove’s objection, the trial court agreed and excluded the BAC

reading, along with Dr. Vincenzi’s testimony. 1 VRP (June 15, 2017) at 1560. 1

But Gerlach’s intoxication was relevant to Cove’s entire statutory defense,

not merely the first element of it. In addition to proving that Gerlach was

1
Despite Cove’s objection, the trial court told the jury that “[t]he parties stipulate
that the plaintiff, Ms. Gerlach, was under the influence of intoxicating liquor at the time
of the accident.” 1 VRP (June 22, 2017) at 2799-800. After initially agreeing to correct
that misstatement, VRP (June 27, 2017) at 2948, the trial court backtracked, saying that it
did not want to “overemphasize[ ]” Gerlach’s intoxication, 1 VRP (July 7, 2017) at 3362-
63. The court further stated that it did not “really think the jury cares” and that in any
event, “what [the jury] heard was that she admits that she was under the influence.” Id.
The majority endorses this view. Majority at 5 n.3.

8
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

intoxicated, Cove also had to prove that her intoxication was a proximate cause of

her injury and that she was more than 50 percent at fault. RCW 5.40.060(1). As to

these two elements, the degree of intoxication matters. The jury could have

concluded that someone who was intoxicated, but not severely so, would have

made different decisions and functioned differently than Gerlach, who, according

to Dr. Vincenzi, had approximately “9 drinks[’] worth of alcohol present in her

body” and a BAC “essentially three times the legal limit for operation of a motor

vehicle.” CP at 511. But the court excluded all evidence on this point,

impermissibly hindering Cove’s ability to prove the bulk of its statutory defense

and stripping the jury of its fact-finding role.

As discussed next, the trial court based its ultimate decision on an erroneous

view of our precedent.

B. The trial court misapplied precedent from our court

The trial court read State v. Peralta, 187 Wn.2d 888, 389 P.3d 596 (2017),

as compelling the conclusion that Gerlach’s BAC was relevant only on the first

element of the intoxication defense. 1 VRP (June 15, 2017) at 1561. But Peralta

does not say that. In Peralta, the plaintiff admitted during pretrial discovery that

she was intoxicated. 187 Wn.2d at 891. Later, the plaintiff argued that her

9
Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

admission did not prove the first element of the intoxication defense. Id. at 893.

The trial court held that it did, and we affirmed. Id. at 904-05.

Thus, all that Peralta stands for is that an admission may satisfy the first

element of the intoxication defense. The majority states that “[o]ur decision in

Peralta does not support allowing additional evidence of the plaintiff’s

intoxication beyond her admission.” Majority at 15. But neither does it support

barring additional evidence of the plaintiff’s intoxication beyond her admission.

Nor does it suggest that an admission is relevant only as to the first element. The

majority is correct that Peralta “turned on whether the trial court appropriately

instructed the jury that she was bound by [her] admission.” Majority at 15. That

was all that was at issue in that case, and we did not resolve any other issue that

might shine light on the issues in this case. Simply put, Peralta is irrelevant, and

the trial court was wrong to rely on it.

Geschwind, on the other hand, is on point. That case illustrates that

evidence of a plaintiff’s intoxication is not limited to the first element of the

defense but instead informs the other elements, also. In that case, Geschwind sued

Flanagan for injuries sustained in a car accident. Geschwind, 121 Wn.2d at 835.

After a night of drinking, Geschwind and Flanagan decided to drive home. Id. at

836. Although Flanagan, the driver, hit two cars while pulling out of his parking

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

space, Geschwind decided to remain in the truck. Id. Flanagan proceeded to drive

off the road and into a pole. Id. Notably, the plaintiff’s BAC was part of the

record. Id.

Geschwind sued Flanagan. Id. at 835. Flanagan, the driver, relied on the

statutory intoxication defense to argue that Geschwind, the passenger, was

primarily at fault. Id. The jury agreed, and Geschwind was denied recovery. Id.

Geschwind appealed, arguing that a passenger, though negligent, could never be

more at fault than the driver who caused the accident. Id.

We rejected that argument. Id. at 839. We reasoned that a jury could have

determined that Geschwind made the decision to ride with a drunk driver because

he himself was intoxicated, and that his decision was the main cause of his injuries.

Id. at 841-42; see also former RCW 5.40.060 (1992) (providing “a complete

defense” if plaintiff’s intoxication “was a proximate cause of the injury”).2 “‘The

rationale for this rule is that intoxication diminishes a passenger’s appreciation of

danger and renders the passenger more likely to take greater risks than usual.’”

2
This statute has since been amended. SUBSTITUTE S.B. 6047, at 43, 53d Leg.,
Reg. Sess. (Wash. 1994). Today, in actions against drunk drivers, the plaintiff’s
intoxication must have been “a proximate cause of the occurrence causing the injury or
death,” not simply the injury itself. RCW 5.40.060(2) (emphasis added). Because this
change was limited to actions against drunk drivers, it does not affect the case before us.

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

Geschwind, 121 Wn.2d at 842 (quoting WASH. STATE BAR ASS’N, WASHINGTON

MOTOR VEHICLE ACCIDENT DESKBOOK § 12.2(5) (1988)).

The case before us now is very much like Geschwind—or at least it would

have been, if the trial court had allowed Cove to present its defense. In

Geschwind, we explained that a jury could find Geschwind more than 50 percent at

fault—even though he didn’t cause the accident—because it was conceivable that

Geschwind made the negligent decision to ride with a severely intoxicated driver

because he was too intoxicated to appreciate the risk. Here, a jury could have

found Gerlach more than 50 percent at fault—even if the jury also allocated to

Cove some percentage of fault—because it is conceivable that Gerlach made the

poor decision to climb over the balcony or she was physically unable to do so

because she was severely intoxicated. But Cove’s argument was curtailed by the

trial court’s decision to bar evidence that would have revealed just how intoxicated

Gerlach was and what effect that intoxication had on her.

The trial court incorrectly reasoned that Geschwind does not apply to this

case because in Geschwind, it was undisputed that Geschwind got in the car with a

drunk driver, but in this case, whether Gerlach climbed the balcony was disputed.

1 VRP (June 12, 2017) at 1005-07. But our opinion in Geschwind did not turn on

whether or not the parties contested the facts. And for good reason: the jury, not

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

the court, serves as factfinder. See Geschwind, 121 Wn.2d at 839-40. The degree

of Gerlach’s intoxication would have helped the factfinder resolve the disputed

facts and determine whether Cove proved its intoxication defense. Instead, the

trial court excluded evidence that went to the heart of Cove’s statutory defense,

stripping the jury of its fact-finding function.

All the trial court allowed the jury to learn was that Gerlach was “under the

influence of intoxicating liquor.” 1 VRP (June 22, 2017) at 2799-800. But it is

one thing to have a BAC of 0.08, the threshold for driving under the influence,

RCW 46.61.502, and another thing entirely to have a BAC of 0.238. Gerlach’s

BAC was more than “minimally relevant to Cove’s affirmative defense.” Majority

at 2. It was the key piece of evidence to Cove’s legislatively defined affirmative

defense. If our abuse-of-discretion standard of review insulates this trial court’s

exclusion of such probative evidence from serious appellate review, then perhaps it

is time for this court to reevaluate that standard.

C. The trial court erred in excluding testimony from Dr. Vincenzi

Under our evidence rules, an expert may testify if he or she is qualified and

his or her testimony will help the trier of fact. ER 702; see also L.M. v. Hamilton,

193 Wn.2d 113, 134, 436 P.3d 803 (2019). To be helpful, the testimony must be

reliable and have an adequate foundation. L.M., 193 Wn.2d at 137. An expert may

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

base an opinion on “facts or data . . . made known to the expert,” even if the expert

did not personally “perceive[ ]” those facts or data. ER 703. “[A]n expert is not

always required to personally perceive the subject of his or her analysis.” In re

Marriage of Katare, 175 Wn.2d 23, 39, 283 P.3d 546 (2012) (citing ER 703).

“That an expert’s testimony is not based on a personal evaluation of the subject

goes to the testimony’s weight, not its admissibility.” Id.; see also In re Disability

Proceeding Against Keefe, 159 Wn.2d 822, 831, 154 P.3d 213 (2007) (holding that

“an in-person evaluation . . . may have strengthened [the expert’s] testimony,” but

the evidence rules do not “require such firsthand knowledge”).

Despite this well-settled legal principle, the majority faults Dr. Vincenzi for

not personally evaluating Gerlach. Majority at 10. The majority suggests that Dr.

Vincenzi should have subjected Gerlach to a battery of examinations to determine

her particular burn-off rate ration for alcohol, her particular absorption rate for

alcohol, and her particular metabolic rate for alcohol. Id. But we have clearly held

that such criticisms go to the weight of the expert’s testimony, not its admissibility.

Keefe, 159 Wn.2d at 831. Neither our precedent nor our evidence rules require Dr.

Vincenzi to possess the firsthand knowledge of Gerlach that the majority demands

of him.

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

Next, the majority holds that Dr. Vincenzi’s testimony was too speculative

because he did not know exactly what happened on the night of the accident.

Majority at 12-13. But nobody knew exactly what happened; figuring that out was

the main issue at trial and what the jury was tasked with resolving. Cove hoped to

defend itself by presenting its theory of what happened: Gerlach made a poor

decision to attempt to climb over the balcony, she made that decision because she

was drunk, and she was unable to successfully climb over the balcony because she

was too intoxicated. The majority would have you believe that the only piece of

evidence Cove had to support its theory was Gerlach’s BAC. See majority at 16

(holding that the BAC results were inadmissible because Cove lacked “other

evidence or testimony that could connect Gerlach’s BAC results to behavior that

caused her fall”). But that’s not right. Cove had an accident reconstructionist

testify that given how Gerlach landed and her injuries, she must have been

climbing. 1 VRP (July 6, 2017) at 2998-3000. Cove also had an expert

pharmacologist, Dr. Vincenzi, ready and able to explain why Gerlach’s severe

intoxication might have led her to decide to climb and how her severe intoxication

would have impeded her ability to do so. 2 VRP (June 14, 2017) at 1531-36. And

Dr. Vincenzi was not merely speculating as to Gerlach’s level of intoxication; he

was able to use her BAC results to calculate just how intoxicated she was prior to

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

her fall. CP at 511. The BAC was but one piece, albeit a pivotal piece, to the

puzzle that was Cove’s entire defense.

Speaking of BAC, a recent case provides the quintessential example of a

case, quite unlike this one, in which an expert opinion as to intoxication is too

speculative. In that case, the plaintiff, Needham, sued his medical provider for

negligence. Needham v. Dreyer, 11 Wn. App. 2d 479, 486, 454 P.3d 136 (2019),

review denied, 195 Wn.2d 1017 (2020). Over Needham’s objection, the trial court

allowed defense experts to testify that the plaintiff’s alcohol use may have caused

his injury. Id. Like Gerlach, Needham had argued that the testimony should be

excluded as speculative. Id.

The Court of Appeals agreed with Needham and reversed. Id. at 493. The

court reasoned that the expert testimony was speculative because nobody knew

how intoxicated Needham had been. Id. at 496. Although Needham had admitted

to drinking on the day he collapsed, id. at 495, “there was no evidence in the record

as to either Needham’s BAC level or whether Needham drank a sufficient amount

of alcohol that night to cause his collapse.” Id. at 496. “Furthermore, Needham

had no alcohol in his system when admitted into the hospital.” Id. “[W]ith no

record or evidence of his blood alcohol level at the time of the collapse,” the

experts were merely speculating “as to the amount of alcohol consumed prior to

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

the collapse” and “as to the potential effect of alcohol on Needham’s collapse.” Id.

The Court of Appeals held that such speculative testimony should have been

excluded. Id.

But the exact opposite is true here. Unlike Needham, Gerlach had a lot of

alcohol in her system when she was admitted to the hospital. Dr. Vincenzi, a

professor emeritus of pharmacology at the University of Washington, used the

blood draw from the hospital to calculate how drunk she was when she fell. See

ER 702 (allowing an expert to base an opinion on facts made known to the expert).

Without a BAC level, I might agree that Dr. Vincenzi lacked an adequate

foundation on which to form an opinion and was merely speculating. But with a

BAC level, Dr. Vincenzi’s testimony had an adequate foundation and would have

been incredibly helpful to the jury as it decided whether Cove proved its statutory

defense.

D. The trial court’s errors were prejudicial

A trial court’s error is reversible only if it is prejudicial. Brown v. Spokane

County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983) (citing

Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983)). “Error will not be

considered prejudicial unless it affects, or presumptively affects, the outcome of

the trial.” Id. (citing James S. Black & Co. v. P&R Co., 12 Wn. App. 533, 537,

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

530 P.2d 722 (1975)). I agree with the Court of Appeals’ conclusion that the trial

court’s errors in this case were prejudicial. Gerlach v. Cove Apts., LLC, 8 Wn.

App. 2d 813, 823, 446 P.3d 624, review granted, 193 Wn.2d 1037 (2019).

Without the BAC reading or Dr. Vincenzi’s testimony, Cove’s hands were

tied and the degree of Gerlach’s intoxication was repeatedly deemphasized. Even

the trial court deemphasized her intoxication. 1 VRP (July 7, 2017) at 3362-63

(stating that it did not want to “overemphasize[ ]” Gerlach’s intoxication). Nathan

Miller, Gerlach’s then-boyfriend, testified that he “wasn’t really paying attention”

to whether Gerlach was drinking and stated that “it would be a guess that she was

drinking.” 1 VRP (June 21, 2017) at 2362. The other friends present that night

testified that they didn’t recall how much Gerlach had to drink. 1 VRP (June 22,

2017) at 2629-31, 2752. And although Gerlach had admitted in a deposition that

she had been drunk when she fell, the trial court excluded her admission, reasoning

that “to be an admission, you have to remember what it is you’re admitting.” Id. at

2718. As the Court of Appeals concluded, the trial court’s rulings “resulted in a

complete absence of evidence as to the extent of her intoxication” and “prejudiced

Cove’s ability to prove its affirmative defense.” Gerlach, 8 Wn. App. 2d at 822-

23. I would affirm.

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

II. The majority’s extended discussion of the implied warranty of
habitability is unnecessary dicta

As the majority notes, “the jury in this case used a verdict form that did not

distinguish between negligence premised on Cove’s common law duties and

negligence premised on Cove’s duties under the RLTA.” Majority at 28. The

majority also notes that Cove’s “common law claims were based on premises

liability, not the implied warranty of habitability.” Majority at 21 n.9.

Nevertheless, the majority engages in an extensive analysis of the implied warranty

of habitability. I decline to join that part of the majority’s opinion. See In re Det.

of Reyes, 184 Wn.2d 340, 350, 358 P.3d 394 (2015) (Stephens, J., concurring)

(criticizing the majority for an “entire discussion” that amounted to “unnecessary

dicta”).

Because the majority spends so much time on it, however, I feel compelled

to note that in expanding the scope of the implied warranty of habitability, the

majority heavily relies on Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973).

That case, which was neither a personal injury case nor a case involving a

nontenant, is easily distinguishable. Id. at 23. There, we held “that in all contracts

for the renting of premises, oral or written, there is an implied warranty of

habitability and breach of this warranty constitutes a defense in an unlawful

detainer action.” Id. at 28 (emphasis added) (citing numerous out-of-jurisdiction

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

cases). We remanded the case for the factfinder to determine “[w]hether the

evidence indicates that the premises were totally or partially uninhabitable during

the period of habitation.” Id. at 34. If the factfinder determined that the premises

was uninhabitable, then the plaintiff could not succeed on his claim of unpaid rent.

Id.

Thus, under Foisy, a tenant can succeed in an unlawful detainer action by

proving that the premises are uninhabitable. But Foisy says nothing about whether

a nontenant (or even a tenant) can rely on the implied warranty of habitability to

succeed in a personal injury action. Perhaps we should build on Foisy and craft the

new common law rule that the majority advocates for today. But Foisy does not

compel that result, and I would wait for the case that squarely presents the issue

before ruling.

Additionally, the majority fails to grapple with what it means for a dwelling

to be “uninhabitable.” This is an open question in our court. See Pinckney v.

Smith, 484 F. Supp. 2d 1177, 1182 (W.D. Wash. 2007) (“Washington appellate

courts have reached opposing conclusions as to what conditions are sufficiently

dangerous to qualify a residence as uninhabitable and the Washington Supreme

Court has not decided the issue.”). In Foisy, the case in which we first recognized

the implied warranty of habitability, the dwelling “contained a number of defects

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

including a lack of heat, no hot water tank, broken windows, a broken door, water

running through the bedroom, an improperly seated and leaking toilet, a leaking

sink in the bathroom, broken water pipes in the yard and termites in the basement.”

83 Wn.2d at 24-25. In other words, the dwelling was almost certainly

uninhabitable.

In contrast, in Klos v. Gockel, we held that a damaged patio and backyard

did not render the dwelling sufficiently “uninhabitable.” 87 Wn.2d 567, 571-72,

554 P.2d 1349 (1976). Since the house remained habitable, we held that the

implied warranty had not been breached. Id. at 571-72 (“The law of implied

warranty is not broad enough to make the builder-vendor of a house absolutely

liable for all mishaps occurring within the boundaries of the improved real

property.”). We have since explained that courts should evaluate the implied

warranty of habitability on “a case-by-case basis.” Atherton Condo. Apt.-Owners

Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 520, 799 P.2d 250 (1990)

(holding that claimed violations of the fire code might affect habitability and must

survive summary judgment). But no case-by-case analysis has been conducted

here, because the implied warranty of habitability is not at issue.

In short, our precedent does not dictate that Cove necessarily breached the

implied warranty of habitability by failing to replace the rotted balcony railing.

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Gerlach v. Cove Apartments, LLC, et al., No. 97325-3
(Gordon McCloud, J., concurring in part/dissenting in part)

Nor is it clear that a nontenant may rely on the implied warranty to recover in a

personal injury suit. Since I would wait for those issues to present themselves

before we decide them, I do not join the majority opinion on this point.

CONCLUSION

The trial court abused its discretion by excluding Gerlach’s BAC and Dr.

Vincenzi’s testimony. I dissent from the majority on this point and would affirm

the Court of Appeals.

Although I concur in the majority’s analysis of the RLTA, I do not join its

unnecessary discussion of the implied warranty of habitability. I therefore

respectfully concur in part and dissent in part.

___________________________

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