(dissenting) — I agree that the lease here created a duty of ordinary care on the part of Rudolph and llena Hauge. The questions then (on liability anyway) are whether the landlord breached that duty and whether the plaintiff, Darla Brown, contributed to her own injuries. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999) (whether defendant breached a duty of care is question of fact); RCW 4.22.070(1) (“trier of fact shall determine the percentage of the total fault.. ..”). Those are questions of fact. And so no matter how thin I believe the liability may be, those questions ought to be resolved by a trier of fact, not us. For these reasons I respectfully dissent.
Here, Darla and Tom Brown complain that the three-inch difference in the door entryway was a tripping hazard. And Ms. Brown tripped over that threshold. For me, whether the landlord should have repaired the threshold (with or without the Browns’ complaint) is a question of fact. If they should have and did not, then they breached the duty of ordinary care imposed by the lease agreement. And if each is somewhat responsible, then comparative negligence accommodates any variation of percentage of responsibility between the landlord and the tenant here. RCW 4.22-.070(1).
I would affirm the trial judge’s denial of the summary judgment on the Browns’ contract claim.