On August 27, 2020, the Washington Supreme Court decided Gerlach v. The Cove Apartments et al. While this case was really a personal injury negligence case, the common law implied warranty of habitability and the Washington Residential Landlord-Tenant Act (RLTA) became a central part of the opinion.
Gerlach's boyfriend, Nathan Miller, rented a unit at The Cove Apartments. Gerlach was not a tenant on the lease. Gerlach attended a party offsite with Miller and other friends. Gerlach consumed alcohol at that party. Afterward, they all went back to Miller's apartment.
Miller's second-floor balcony had a decayed railing. The railing snapped, and Gerlach fell from the second-floor balcony, sustaining a traumatic brain injury, skull fractures, and cerebral hemorrhaging.
Gerlach could not recall the events of that evening. Aside from a mutual friend - who was outside on the ground floor - hearing a snap and seeing Gerlach fall, there were no witnesses.
Gerlach sued Cove and its property manager for negligence. There were two issues on this appeal.
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BAL Evidence and Expert Testimony: Cove asserted a plaintiff intoxication defense, a complete defense to liability. It has three elements:
- Plaintiff was intoxicated at the time of the injury;
- Intoxication caused the injury in question; and
- Trier of fact believes the plaintiff was more than 50% at fault.
To support its defense, Cove wished to introduce Gerlach's Harborview medical record showing her blood alcohol level after she was admitted to the hospital. Cove also wished to have a medical expert, Dr. Frank Vincenzi, use that medical record to provide an opinion that went toward satisfying the remaining defense elements.
Gerlach conceded that she was intoxicated at the time of the injury, but did not concede the other two elements of the defense.
The trial court ruled: (1) the Harborview medical record was inadmissible because it was more unfairly prejudicial than probative, and (2) Dr. Vincenzi's expert testimony was inadmissible because it was speculative.
At trial, the jury determined that Cove was 93% liable and Gerlach was 7% liable.
Ultimately, the WA Supreme Court ruled for Gerlach. They upheld the trial court's exclusion of the medical record evidence, finding no abuse of discretion. The majority also believed that Dr. Vincenzi's testimony would have had a prejudicial effect on the jury and ultimately would have not helped the jury because he could not comment on how the intoxication actually affected Gerlach. The court also concluded that a higher BAL, by itself, is not relevant to an intoxicated plaintiff's fault and causation.
Common Law Implied Warranty of Habitability Extends to Tenant's Guests: This became a question of first impression for the court.
Gerlach argued that Cove's failure to repair the decayed railing was a breach of the implied warranty of habitability. Cove argued that the law did not apply to guests of tenants.
Interestingly, there were no objections by counsel when the court presented jury verdict forms that did not distinguish between common law landlord-tenant rights (found in Restatement (Second) of Property 17.6) and rights under the Washington Residential Landlord-Tenant Act (RLTA). The trial court ruled that Cove was liable as a landlord.
The WA Supreme Court reiterated that the RLTA only creates a landlord duty to keep the premises fit for human habitation, but did NOT guarantee a warranty of habitability. This is how the common law's implied warranty of habitability remains good law in Washington - and separate from the RLTA.
Accordingly, the bulk of the analysis focused on Restatement (Second) 17.6, the common law implied warranty of habitability. Not surprisingly, the court discussed Foisy v. Wyman (1973), which recognized the common law implied warranty of habitability in unlawful detainer actions.
The WA Supreme Court then extended the rule to allow guests of tenants to bring a cause of action under an implied warranty of habitability theory, reasoning:
- The state had long abandoned the caveat emptor doctrine because tenants are less likely these days to be able to properly inspect the premises for every flaw and defect.
- In general, landlords have long held common law duties to tenants and their guests.
- Housing conditions violating this implied warranty of habitability are not just health hazards to the tenant, but to the surrounding community.
RLTA Does Not Apply to Tenant's Guests: The WA Supreme Court held that guests of tenants could sue under an RLTA theory because the purpose of the statute was to regulate legal relationships between landlords and tenants.
Cove's Attorney Messed Up: The verdict form should have clearly noted common law liability and excluded the RlTA liability theory. But Cove's attorney did not object. Further, the verdict was based on the proper common law liability theory. Cove cannot get a new trial.
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Justice Sheryl Gordon McCloud concurred in part and dissented in part.
She argued that the trial court erred by excluding evidence of Gerlach's BAL and the testimony of Cove's expert witness. This evidence - to show Gerlach was intoxicated - went to the heart of Cove's intoxication defense. Gerlach's intoxication was also relevant to the other elements of that defense: to determine if it caused her injuries and if Gerlach was >50% at fault. Justice McCloud also reasoned that the majority misapplied precedent on how to apply the intoxication defense.
Justice McCloud would have allowed the testimony of Dr. Vincenzi, Cove's expert witness. There were no witnesses to how Gerlach exactly sustained her injury. Cove already had an accident reconstructionist present a theory and had an expert pharmacologist waiting to testify. Dr. Vicenzi's testimony could have simply added to that puzzle.
Justice McCloud believed Foisy did not apply here. Foisy held that a tenant could assert implied warranty of habitability as a defense in an unlawful detainer action, NOT as a plaintiff's cause of action in a personal injury case.
Justice McCloud quickly examined case precedent on what constitutes "uninhabitable" and concluded that Cove might not necessarily have breached the implied warranty of habitability when failing to replace the rotted balcony railing. A more in-depth analysis would be required.
Justice Charles Wiggins and Justice Barbara Madsen joined in this concur/dissent. Although Justice Wiggins retired in March 2020, he signed on as a pro tem justice here because the case was argued prior to his retirement. Wiggins' replacement, Justice G. Helen Whitener, did not participate.
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I agree more with Justice McCloud's opinion.
The Harborview medical record and Dr. Vincenzi's testimony should have gone to the jury. Excluding the evidence did more harm than good here. Even after Gerlach conceded she was intoxicated, the defense still needed to tie everything together. The medical record and Dr. Vincenzi could have possibly helped on that, given the other experts Cove had lined up. Further, Gerlach's attorney still cross-examined Dr. Vincenzi and likely poked significant holes in the expert's testimony, decreasing the chance of unfair prejudice.
If one wants to open the habitability can of worms, there must be a more complete inquiry to define habitability.
Generally, habitability can be first defined as "it's beyond cruel if you have to deal with it." Think no running water, no heat or air conditioning, black mold, or a mass infestation. While a decayed railing, in of itself, could still violate an implied warranty of habitability, I need more information.
Tenants obviously are covered by an implied warranty of habitability, rightfully so.
But habitability, while still relevant if visiting the unit, is not as strong an argument with guests who, by definition, do not reside there. Guests are free to leave and aren't bound by a contractual agreement with the landlord.
The majority mat have taken the bait by seeing "tenant and others" in Restatement 17.6 and got lured down the proverbial rabbit hole. To be fair, virtually all the elements of that Restatement are there. But I'm not willing to give a guest the implied warranty of habitability without further evidence.
Also, there may be too many unanswered questions:
- Is there a property condition checklist for the unit?
- How was the lighting, since it seemingly was late night?
- Did the railing look fine at the time of the incident?
- Did Miller know at all that the railing was bad and didn't tell Gerlach?
- Did Gerlach know from a previous visit that the railing was bad - and maybe she forgot on that fateful night due to intoxication?
This case could have (and should have) only been decided on a premises liability theory, without addressing habitability.
I hope Gerlach does not inadvertently muddy the waters in future cases when defining habitability or applying the implied warranty of habitability.
