(dissenting) — Susan Lian White fell from wooden steps leading into her apartment — and only her apartment — on July 3, 1996.
She sued John Stalick III and Jean Stalick (now deceased) for personal injury. In relevant part her complaint alleged that the Stalicks “operated and maintained the residential premises located at 1603 S. Royal, Apartment # 1, in a negligent and careless manner so as to cause the Plaintiff’s injuries.” Clerk’s Papers (CP) at 5.
The parties do not dispute that the stairway serviced only Ms. White’s apartment. It was not, therefore, a common area of this apartment complex.
The case was fully tried to the court. And following a favorable decision, Ms. White’s attorney prepared findings of fact and conclusions of law, on his stationery, which the judge signed on May 12, 2000.
The findings of fact pertinent to our review are:
2. The steps in front of the unit of the Benson Motel Apartments occupied by the plaintiff Susan C. White were inherently dangerous and interfered with the safe habitation of the home;
3. The defendants, Jean Stalick and John Stalick, III, and the plaintiff, Susan C. White, were aware of the poor condition of the steps;
4. On the evening of July 3, 1996, the plaintiff Susan C. White fell on the steps in front of her apartment unit and injured herself. The cause of her fall was the decrepit and rotten nature of the steps [.]
CP at 51.
*827The pertinent conclusions of law are:
1. The defendants, Jean Stalick and John Stalick, III, had a statutory duty to the plaintiff, Susan C. White, to keep the steps in front of her apartment unit in safe condition as a minimum for habitation. This duty, as imposed in RCW 59.18.060, further states:
The landlord will at all times during the tenancy keep the premises fit for human habitation, and shall in particular:
(1) Maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation governing their maintenance or operation, which the legislative body enacting the applicable code, statute, ordinance or regulation could enforce as to the premises rented if such condition substantially endangers or impairs the health or safety of the tenant;
2. While not a common area, the stairs in front of the plaintiff Susan C. White’s apartment unit were a necessary element of habitation and thus the defendants still had a statutory duty to keep them in safe condition;
3. By not having the steps in a safe condition as a minimum for habitation, the defendants breached their duty to the plaintiff to comply with the code or even some modicum of safety;
5. Judgment should be entered in favor of plaintiff Susan C. White (formerly Susan C. Lian)....
CP at 52.
STANDARD OF REVIEW
We review findings of fact to determine whether they are supported by substantial evidence. Miller v. City of Tacoma, 138 Wn.2d 318, 323, 979 P.2d 429 (1999). We review conclusions of law de novo. Bishop v. Miche, 137 Wn.2d 518, 523, 973 P.2d 465 (1999).
The question before us is whether the court’s conclusions of law support a judgment against the landlord for general, *828common law tort damages. They do not, based on well established Washington law.
LANDLORD LIABILITY AT COMMON LAW
A landlord’s liability to the tenant, other than for a common area, is well settled. A landlord is liable for, and only for:
(1) latent or hidden defects in the leasehold
(2) that existed at the commencement of the leasehold
(3) of which the landlord had actual knowledge
(4) and of which the landlord failed to inform the tenant.
Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P.2d 226 (1994); Charlton v. Day Island Marina, Inc., 46 Wn. App. 784, 788, 732 P.2d 1008 (1987); Aspon v. Loomis, 62 Wn. App. 818, 826-28, 816 P.2d 751 (1991); Dexheimer v. CDS, Inc., 104 Wn. App. 464, 475, 17 P.3d 641 (2001).
Any affirmative duty a landlord may have to maintain rental property does not extend to noncommon areas. The tenant is limited at common law to the “latent defect theory.” Aspon, 62 Wn. App. at 826.
The Residential Landlord-Tenant Act1 (RLTA) imposes a warranty of habitability. But it also specifies the remedy:
Failure to carry out these duties gives rise to certain statutory remedies which are premised on the landlord having notice of the defect. Those remedies, however, are limited to (1) the tenant’s right to repair and deduct the cost from the rent, (2) a decrease in the rent based upon the diminished value of the premises, (3) payment of rent into a trust account, or (4) termination of the tenancy.
Howard v. Horn, 61 Wn. App. 520, 524-25, 810 P.2d 1387 (1991); Dexheimer, 104 Wn. App. at 471. The majority cites to no Washington cases that would allow a tenant to recover for personal injuries based on a landlord’s violation of the RLTA. And for good reason — there are none.
*829Ms. White would have been well within her rights to stop paying the rent and move out, or to have had the stairs repaired at the landlord’s expense. RCW 59.18.090(1), .100(3). Fear of retaliation is no excuse given the tenant’s protection under the statute. RCW 59.18.240, .250. Indeed, there is a presumption of retaliation if the landlord takes adverse action toward the tenant in the 90 days after the tenant enforces her rights under the RLTA. RCW 59.18.250.
In sum, the trial court erred by predicating an award of general tort damages for personal injuries on violations of the RLTA. Dexheimer, 104 Wn. App. at 472; Howard, 61 Wn. App. at 524-25.
NONPERSONAL INJURY, NONLANDLORD TENANT CASES
Reliance on cases adjudicating disputes between condominium owners and builder vendors over the quality of the construction and materials and the owner’s right to damages for “allegedly inferior stucco substitute” simply have no applicability to a claim against a landlord for personal injuries. The discussion, therefore, in Atherton Condominium Apartment-Owners Ass’n Board of Directors v. Blume Development Co.,2 while interesting, is inapposite. The same is true for Stuart v. Coldwell Banker Commercial Group, Inc.3 (condominium owners sought recovery for defects in private decks and walkways; court held that the implied warranty of habitability did not apply because the defects did not render the units unfit to occupy). These cases inform us of nothing pertinent to this dispute.
Likewise, those cases which recognize breach of an implied warranty of habitability as a defense to an unlawful detainer action have no applicability here. Foisy v. Wyman, 83 Wn.2d 22, 515 P.2d 160 (1973). This is not an unlawful detainer action. Had it been, then, of course, Ms. White could have asserted the Stalicks’ breach of their implied *830warranty of habitability as a defense to the action. Id. at 27.
Ms. White also relies on Degel v. Majestic Mobile Manor, Inc.4 to support her claim. But the question in Degel was whether a landowner (in that case the owner of a mobile home park) owed a duty to its tenants to protect them from a “fast-flowing creek adjacent to the play area.” Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 45, 914 P.2d 728 (1996). The court articulated the dispositive issue as, “Is a landowner excused from the duty to exercise reasonable care to protect invitees from potentially dangerous conditions on the land solely because the danger is, in part, due to the risks which are inherent in a natural body of water?” Id. at 48.
It noted the landlord’s affirmative obligation “to maintain the common areas of the premises in a reasonably safe condition for the tenants’ use.” Id. at 49 (emphasis added). Even a cursory review of the issue statement and the court’s general statement of the law shows that the question addressed in Degel is not the question presented here. Here, we are clearly not talking about a common area. And, more importantly, the bulk of the discussion in Degel focuses on whether a natural body of water can ever be an unreasonable risk which a landlord must protect against— protect against because the landlord has a duty of care to maintain common areas. Id. at 49-55.
REPAIRS
A landlord has no duty to repair noncommon areas absent an express covenant to repair. Aspon, 62 Wn. App. at 826. Both parties concede that there was no written lease between Ms. White and the Stalicks, nor did the Stalicks undertake any general duty to repair. The findings of fact, prepared by Ms. White, reflect no general duty to repair these premises. The Stalicks, then, had no contractual obligation to repair the stairs.
*831And the Residential Landlord Tenant Act of 1973 did not modify this common law rule. Id. at 827.
VOLUNTARY REPAIRS
A landlord is, of course, liable at common law if the landlord voluntarily undertakes repairs to a tenant’s apartment and does so negligently. Regan v. City of Seattle, 76 Wn.2d 501, 505, 458 P.2d 12 (1969).
The problem with this argument, though, is that the findings of fact here are completely devoid of any finding that (1) the Stalicks undertook to repair the stairs; or (2) that they performed any repairs negligently (assuming they were undertaken).
And in fact the court’s findings of fact preponderate against such a finding. The stairs “were inherently dangerous and interfered with the safe habitation of the home” (Finding of Fact 2); the defendants “were aware of the poor condition of the steps” (Finding of Fact 3). CP at 51.
Nowhere in these findings, search as you might, will you find any reference to the affirmative negligence of the Stalicks by repairing the stairs negligently.
Likewise, the court’s conclusions of law, which like the findings of fact were all prepared by Ms. White’s counsel, also militate against a finding of any gratuitous undertaking to repair stairs, or negligent repair of those stairs having undertaken the repair. The court simply concluded that “[b]y not having the steps in a safe condition as a minimum for habitation, the defendants breached their duty to the plaintiff to comply with the code or even some modicum of safety” (Conclusion of Law 3). CP at 52.
If anything, these findings and conclusions suggest just the opposite of what is now being asserted, i.e., the Stalicks undertook to repair the stairs but did so negligently.
PRESUMPTION OF NEGATIVE FINDINGS OF FACT
It is well settled Washington law that the absence of a *832finding of fact on a material issue is presumptively a negative finding against the party who bore the burden of proof. Taplett v. Khela, 60 Wn. App. 751, 759, 807 P.2d 885 (1991). There is no argument here that the burden of proof was with the plaintiff, Ms. White. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 135, 769 P.2d 298 (1989) (“general burden of proof rules requirfe] the plaintiff to prove all elements of the cause of action”).
The evolution of this rule, like many common law rules, has been bumpy. It started out as a clear statement that the court need not make negative findings. And where such findings were absent, and the evidence controverted, the presumption was that the court found against the party having the burden of proof. Maynard v. England, 13 Wn. App. 961, 968, 538 P.2d 551 (1975) (citing Schmitt v. Matthews, 12 Wn. App. 654, 659, 531 P.2d 309 (1975)); Eggert v. Vincent, 44 Wn. App. 851, 856, 723 P.2d 527 (1986); Fettig v. Dep’t of Soc. & Health Servs., 49 Wn. App. 466, 478, 744 P.2d 349 (1987). And while there are good policy reasons why the absence of a finding should be construed as a negative finding, not the least of which is finality, there are also practical reasons:
We consider it the prevailing party’s duty to procure formal written findings supporting its position. Prevailing parties must fulfill that duty or abide the consequences of their failure to do so.
Peoples Nat'l Bank of Wash. v. Birney’s Enters., 54 Wn. App. 668, 670, 775 P.2d 466 (1989).
The first exception carved out of this general rule addressed those cases where the evidence was uncontradicted. LaHue v. Keystone Inv. Co., 6 Wn. App. 765, 776, 496 P.2d 343 (1972). And this makes sense. Obviously if the trial court, or counsel, made a mistake and failed to include an obvious finding (obvious because the evidence is uncontradicted), then strict application to the rule would work an injustice.
LaHue’s requirement of uncontradicted evidence gave *833way to a more generous exception in Douglas Northwest, Inc. v. Bill O'Brien & Sons Construction, Inc., where a negative finding was presumed unless “ample evidence to support the missing finding, and the findings entered by the court, viewed as a whole, demonstrate that the absence of the specific finding was not intentional.” Douglas N.W., Inc. v. Bill O’Brien & Sons Constr., Inc., 64 Wn. App. 661, 682, 828 P.2d 565 (1992). But we refuse to apply this presumption where the end result would be directly contrary to the evidence presented at trial. See Tacoma Commercial Bank v. Elmore, 18 Wn. App. 775, 778-79, 573 P.2d 798 (1977).
In LaHue, which recognized this exception, there was uncontradicted evidence contrary to a finding. LaHue, 6 Wn. App. at 775-76.
But here the facts were disputed. Mr. Stalick was called as an adverse witness by Ms. White’s attorney and testified:
Q. All right. And — had you ever tried to repair those stairs prior to July of 1996?
A. No, sir.
Q. Did you ever try to repair them after she fell in January of ‘96?
A. There was — no repair work, sir.
Q. When was the last time you ever repaired those stairs?
A. I have never repaired them.
Q. And — so the only change in the condition from this picture that — prior to 4th of July weekend of‘96, the only change is that the stair steps are not — are not — even on the one side where they’re broken loose?
A. They were not broken loose prior to my going on vacation over the 4th of July.
Q. Okay. And you never repaired them prior to July 4th at any time?
A. I have not, personally.
Q. Did someone else try to?
A. I don’t know. My mother would — would have to have thought for that. I don’t know. I don’t have any firsthand knowledge.
*834Q. Did anybody ask you to repair them before July 4th of 1996?
A. No, sir.
Report of Proceedings (RP) at 64-65.
Now, Ms. White testified to the contrary:
Q. And did he repair the steps?
A. At one time, he came, and he tried to nail — some of the nails were up. Stuck up. Like they needed to be pounded back down. But they wouldn’t stay. So he tried putting in new nails. That wouldn’t work. So he tried using screws, with a screw gun.
THE COURT: You did, or he did?
A. He did. But it would just split the wood.
Q. Now, do you know why you fell in January of ‘96.
A. Well, it was hard to shovel, because of the nails that were sticking up, you couldn’t shovel all the way across. You could shovel an area, there’s nails. Little area, nails, so you are either walking on ice, or tons of nails. So, it was — slick. Couldn’t get down to the wood.
RP at 97-98.
Even under the most generous of these standards, it cannot be said that either the court or counsel inadvertently, mistakenly, or absentmindedly failed to include a finding of fact that the Stalicks had voluntarily, but then negligently, undertaken repairs on these stairs. So, for me, the injustice here is to remand this case to permit the court or counsel to come up with a theory not seriously urged at trial, not supported by the findings of fact, and as I read them, not even supported by the evidence.
On the theory for which the case is being remanded for further findings, Ms. White would have to establish the following: (1) that the Stalicks voluntarily undertook to repair the stairway used exclusively to access her apartment; (2) that those repairs were negligently performed; and (3) that the negligent repair proximately resulted in *835her injuries. See Regan, 76 Wn.2d at 505 (“If a landlord negligently attempts to repair or is otherwise guilty of affirmative negligence on the premises he will not be excused from liability by virtue of the landlord-tenant relationship.”). There is no finding of fact (in the findings prepared by Ms. White), which would support any of these required elements.
Whether the Stalicks here gratuitously undertook and then negligently performed repairs on these stairs would have been an essential component of Ms. White’s cause of action. Here, that theory was not specifically alleged. Ms. White alleged instead a failure to maintain the premises in a habitable condition. And, again, there are no findings of fact or conclusions of law which could be said to remotely address this essential claim. The evidence on this issue is at best mixed. So even under the most liberal reading of the evidence, we should not say that the omission of a finding was inadvertent.
To simply remand on that question is to invite the trier of fact to “go find” some theory upon which to predicate a damage award. That is wrong. This case was fully tried by competent counsel. Findings of fact and conclusions of law were presented by the lawyer for Ms. White and signed by the trial court. I have reviewed those findings of fact and conclusions of law, and under the law as it now exists in Washington, they do not support a judgment for Ms. White. We should then reverse and dismiss.
For these reasons I respectfully dissent.
Chapter 59.18 RCW.
115 Wn.2d 506, 519-22, 799 P.2d 250 (1990).
109 Wn.2d 406, 745 P.2d 1284 (1987).
129 Wn.2d 43, 914 P.2d 728 (1996).