Humbert v. Sellars

*125CAMPBELL, J.,

dissenting.

At one time this case was assigned to me. It has now been reassigned. I trust that the reassignment is “without recourse”, because I disagree with the majority and, therefore, dissent.

The plaintiff in her amended complaint alleged only that she fell and suffered personal injuries “due to the negligence of the defendants” in one or more of the following particulars:

“(1) In failing to provide proper drainage for water which tended to collect outside said neighbor’s front door;
“(2) In failing to build up the walkway outside said front door so as to keep the walkway out of a pool of water;
“(3) In failing to provide a nonslip surface on the walkway outside said door;
“(4) In otherwise failing to take measures to prevent water from collecting outside of said door and taking measures to insure that tenants and their visitors would not slip thereon.”

I fail to understand how the plaintiff can bootstrap a common-law negligence action into a strict liability action under the Residential Landlord and Tenant Act.1

It is my understanding that we allowed review in this case primarily to evaluate the plaintiffs contention that the rule set out in Restatement of Torts (Second) § 356 should not be applied to the letting of a residential apartment. Now, by the use of an end run, the majority has decided the motion for summary judgment should have been denied on the narrow basis that the patio was a “floor” within the meaning of ORS 91.770(l)(h).

It is my opinion that we should not have allowed *126review in this case. I don’t think that we should try to decide this case on the above described narrow issues without reexamining the law of Oregon generally concerning the liability of a landlord to the guest of a tenant for personal injuries caused by a dangerous condition on the leased premises. This wider issue has ramifications which were not argued or briefed. For that reason this is not a proper case to make a general reexamination of the Oregon law in this area.

As a starting point it is important to consider what remedies might have been available to the plaintiff. Those potential remedies included causes of action based upon: (1) One of the exceptions to Restatement (Second) of Torts § 356, (2) The Residential Landlord and Tenant Act, (3) An implied warranty of habitability separate and apart from any statute, or (4) Restatement (Second) of Property § 17.6.

RESTATEMENT (SECOND) OF TORTS

This court in Richards v. Dahl, 289 Or 747, 749, 618 P2d 418 (1980), said “We have previously stated that the principles announced in the Restatement of Torts (Second) reflect our views of the law governing the liability of a landlord to a tenant.” See also Lapp v. Rogers, 265 Or 586, 588, 510 P2d 551 (1973); Jensen v. Meyers, 250 Or 360, 441 P2d 604 (1968).

The relevant section of Restatement (Second) of Torts is:

§356 Conditions Existing When Lessor Transfers Possession: General Rule
“Except as stated in § § 357-362, a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.”2

The relevant sections which are listed as exceptions to section 356 are listed by number and title as follows:

§357 Where Lessor Contracts to Repair
§358 Undisclosed Dangerous Conditions Known to Lessor
*127§359 Land leased for Purpose Involving Admission of Public
§360 Parts of Land Retained in Lessor’s Control Which Lessee is Entitled to Use
§361 Parts of Land Retained in Lessor’s Control but Necessary to Safe Use of Part Leased
§362 Negligent Repairs by Lessor

The plaintiff, at the argument on the motion for summary judgment in the trial court, admitted that she did not come within any of the six exceptions to section 356. Therefore, the plaintiff has argued that we should scuttle section 356 and adopt a new rule stating that a landlord owes the guest of a tenant a duty to exercise reasonable care. The plaintiff contends that section 356 has deep historical roots dating back to the 16th century in England and the doctrine of caveat lessee.

THE RESIDENTIAL LANDLORD AND TENANT ACT

In 1973 the Oregon Legislature passed the Residential Landlord and Tenant Act. (ORS 91.700 to 91.895). The plaintiff claims that the following provisions relating to habitable conditions are relevant to her position:

“ORS 91.770(1) A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. For purposes of this section, a dwelling unit shall be considered unhabitable if it substantially lacks:
<<* * * * *
“(f) Building, grounds and appurtenances at the time of the commencement of the rental agreement in every part clean, sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, * * *.
* * * *
“(h) Floors, walls, ceilings, stairways and railings maintained in good repair.”

The plaintiff claims that the defendants, by allowing the water from the rain to collect in front of the tenant’s door, breached the general statutory obligation of ORS 91.770(1) to “maintain the dwelling in a habitable condition” and the specific statutory obligations as set out in ORS 91.770(1) (f) and (h). She argues that subdivision (f) has been violated because the rain water was “debris.” She claims that the patio deck was a “floor” within the meaning of subdivision (h). The *128plaintiff has characterized these as breaches of “warranties of habitability.”

The plaintiff also claims that the defendants’ alleged violations of the specific provisions of ORS 91.770 give her an alternative remedy to recover under the doctrine of “negligence per se.”3

The literal language of The Residential Landlord and Tenant Act does not provide for the recovery of personal injuries by a tenant or the guest of a tenant. ORS 91.800(2) provides that a tenant may recover damages for “any noncompliance by the landlord” with ORS 91.770. To complete the statutory scheme, ORS 91.725 provides that the remedies under the Residential Landlord and Tenant Act “shall be so administered that an aggrieved party may recover appropriate damages.”

Brewer v. Erwin, 287 Or 435, 452, 600 P2d 398 (1979), interpreted the Residential Landlord and Tenant Act to allow recovery for personal injuries:

“ORS 91.770(1) * * *, declares that a rental dwelling that lacks any of the elements of structure and services there specificed ‘shall be considered unhabitable.” * * * They are not concerned merely with assuring that the tenant receives what he pays for, nor with intangible comfort and enjoyment. When a tenant or other ‘aggrieved party’ in fact suffers an injury within the contemplation of these protective provisions, it would be incongruous to translate that injury into reduced rental value of the dwelling. ‘Appropriate damages’ under ORS 91.725 certainly includes compensation for the loss of life or health and the accompanying costs, * * *.” 287 Or at 452.

Notwithstanding the majority, it is my opinion the plaintiff cannot recover on her theory for the breach of a “warranty of habitability” under the Residential Landlord

*129and Tenant Act because she has not pleaded that theory in her amended complaint. Nowhere does the amended complaint use the term “warranty” or “habitability” and it does not directly or indirectly refer to the provisions of ORS 91.770. If a plaintiff wants to allege two or more theories of recovery, each must be alleged in the complaint. Gardyjan v. Tatone, 270 Or 678, 680-81, 528 P2d 1332 (1974). Blake v. Webster Orchards, 249 Or 348, 352-53, 437 P2d 7574 (1968).

IMPLIED WARRANTY OF HABITABILITY

The plaintiff also contends that she is entitled to recover on the alternate theory that the defendants breached an implied warranty of habitability separate and apart from any statute.

Cases from other jurisdictions hold that a lease creates an implied warranty of habitability. This warranty is based upon the proposition that a residential lease is a contract between landlord and tenant and not a conveyance of land. The plaintiff in her petition for review cited Pugh v. Holms, 486 Pa 272, 405 A2d 897 (1979); Kamarath v. Bennett, 568 SW2d 658 (Tex 1978); Teller v. McCoy, 253 SE2d 114 (W.Va. 1978); King v. Morehead, 495 SW2d 65 (Mo 1973); Mease v. Fox, 200 NW2d 791 (Iowa 1972); Jack Spring, Inc. v. Little, 50 III 2d 351, 280 NE2d 208 (1972); Morningstar v. Strich, et al, 326 Mich 541, 40 NW2d 719 (1950).

The plaintiff cannot recover under this theory for the *130same reasons that she cannot recover under the Residential Landlord and Tenant Act. The plaintiff in her amended complaint has not pleaded a theory of “implied warranty of habitability.”

RESTATMENT (SECOND) OF PROPERTY § 17.6

In 1976 the American Law Institute promulgated and adopted Restatement (Second) of Property. Section 17.6 reads as follows:

“Landlord Under Legal Duty to Repair Dangerous Condition”
“A landlord is subject to liability for physicial 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 adminstrative regulation.”

The plaintiff has not cited or relied upon Restatement (Second) of Property.

The reporter’s note to section 17.6 states that the section is new and is not based upon any specific section of the Restatement (Second) of Torts. This court has not had occasion to consider section 17.6.5

Comment a to section 17.6 explains the rationale:
“Insofar as a duty created by statute or administrative regulation is concerned, the rule of this section is based on the assumption that the statute or regulation represents a legislative determination of the standard of conduct required of the landlord, so that the violation constitutes negligence per se * * *. The tort 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 will be effectuated.”

It seems obvious that if Oregon decided to follow section 17.6 the tenant’s cause of action against the landlord *131could be based upon the negligent violation of the statutory duties set out in the Residential Landlord and Tenant Act. This would require a retreat from Brewer v. Erwin, supra, which in effect imposes strict liability upon the landlord for personal injury to the tenant for violation of the Residential Landlord and Tenant Act.

To follow the other prong of section 17.6, the Oregon Supreme Court would be required to determine if a residential lease creates an implied warranty of habitability. Comment a to section 17.6 continues:

“Chapter Five of this Restatement takes the position that there is an implied warranty of habitability by the landlord in regard to residential property. The implied warranty of habitability is the basis of a duty on the landlord to maintain the property in a habitable condition. * * *.”

CONCLUSION

There are many questions to be answered. Should Oregon follow Restatement (Second) of Property § 17.6? This is probably the most fundamental issue underlying this entire problem of landlord’s liability for the tenant’s personal injuries. If we “adopt” Restatement (Second) of Property § 17.6, what happens to Restatement (Second) of Torts § 356? In personal injury cases, would the role of the Residential Landlord and Tenant Act be reduced to furnishing a standard of care to a § 17.6 action? Would it be wise to retreat from Brewer v. Erwin, supra, which now imposes strict liability in personal injury actions?

To make Restatement (Second) of Property § 17.6 run on both cylinders, would it be necessary for Oregon to recognize that a residential lease creates an implied warranty of habitability independent of any statute? Separate and apart from the Restatement, should Oregon allow recovery for a tenant’s personal injuries based upon the breach of an implied warranty of habitability?

The first sentence of ORS 91.770(1) is: “A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition.” It could be argued that this sentence provides for a general statutory obligation in the nature of an express warranty of habitability. On the other hand, the wording of the statute which follows, including the *132phrase “For purposes of this section,” indicates that the specific statutory obligations spelled out in subdivisions (a) through (k) are exclusive and there is no general obligation. This is another one of the unanswered problems not addressed in the briefs or the majority opinion.

If ORS 91.770(1) provides for a general statutory obligation to maintain the dwelling unit in a habitable condition, then the landlord’s duty is the same as under an implied warranty of habitability — only the source of the duty is different. This could have been important to the plaintiff in this case. If she had filed the proper pleadings, it would have saved her from arguing that “the patio deck” was a “floor” and that the “rain water” was “debris.”

We are prevented from considering the above questions in this case because the plaintiff has not raised the issues or has failed to plead them. The concurring opinions of Lent, J. and Carson, J. point out other problems that should receive the consideration of this court.

This is not a situation where we have gathered under an oak tree with bowed heads for the purpose of burying the doctrine of caveat lessee. That doctrine was cremated by the legislature when it passed the Residential Landlord and Tenant Act in 1973.

Restatement (Second) of Torts § 356, the Residential Landlord and Tenant Act, implied warranties of habitability, and Restatement (Second) of Property § 17.6 all concern the liability of a landlord to the tenant for personal injuries arising from a dangerous condition on the leased premises. All of them are potentially interrelated in different combinations. Instead of considering only a part of the overall problem, the majority should have waited for the proper case to consider the entire package.

Because I think that we should wait for a different case, I would affirm the trial court and Court of Appeals.

The majority answers this question by saying that the parties argued the application of the Residential Landlord and Tenant Act to this case on the motion for summary judgment and the trial judge ruled the act did not apply. The majority apparently reasons that because the defendants entered into the argument and did not make an objection that the act was outside the scope of the pleadings, the objection has been waived. The rebuttal is that the defendants won the motion for summary judgment in the trial court and there is no rule of law that requires a party to state additional grounds as to why it should prevail. The defendants made their position clear in their brief in the Court of Appeals when they said: “The plaintiff based her case upon a theory of negligence not upon a breach of implied warranty.”

Restatement (Second) of Torts § 356 is substantially the same as the corresponding section in Restatment of Torts. The Restatement of Torts was adopted and promulgated by the American Law Institute on May 11,1934. The first reference that I can find to it in connection with a landlord-tenant question in Oregon is in Goodman v. Fernald, 154 Or 654, 662, 61 P2d 1253 (1936).

I would simply answer the plaintiffs “negligence per se” argument by saying that there is no underlying common law negligence action in which the trial court could substitute the statutory standard of care for that of a reasonably prudent person. Bob Godfrey Pontiac v. Roloff, 291 Or 318, 324, 630 P2d 840 (1981); Miller v. City of Portland, 288 Or 271, 604 P2d 1261 (1980).

In any event, it is difficult to understand why a plaintiff would want to use a “negligence per se” theory when a violation of the Residential Landlord and Tenant Act imposes strict liability.

Although the Gardyjan and Blake cases were decided prior to the adoption of the Oregon Rules of Civil Procedure, it is my opinion that they accurately state the current law.

ORCP 18 A. provides:
“A pleading which asserts a claim for relief, whether an original claim, counterclaim, cross-claim, or third party claim, shall contain:
“A. A plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition.
The Council on Court Procedures, Staff Comment to Rule 18 is in part as follows:
“The Council decided to retain fact pleading as opposed to notice pleading, i.e., to retain a requirement of fairly specific description of facts as opposed to adopting the less specific fact description allowable in federal courts. * * * The necessity of pleading ultimate facts retains the present Oregon requirements of pleadings facts at a fairly specific level. * *

See Welch v. Bancorp Managment Services, 296 Or 208, 221, 675 P2d 172 (1983).

This court did consider Restatement (Second) of Property § 17.3 in Woolston v. Wells, 297 Or 548, 559, 687 P2d 144 (1984).