Saralegui Blanco v. Gonzalez Sandoval

485 P.3d 326, 197 Wash. 2d 553

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE APRIL 29, 2021 SUPREME COURT, STATE OF WASHINGTON APRIL 29, 2021 SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MARIA JESUS SARALEGUI BLANCO, ) ) No. 98221-0 Petitioner, ) ) v. ) En Banc ) DAVID GONZALEZ SANDOVAL, ) ALEXANDRA BARAJAS GONZALEZ, ) and the marital community comprised ) thereof, ) ) Defendants, ) ) ERNESTO HERNANDEZ, TERI ) HERNANDEZ, and the marital community ) comprised thereof, ) ) Respondents. ) ) Filed :April 29, 2021

JOHNSON, J.—This case involves a premises liability claim brought by a

visitor against landlords for an injury caused by the tenants’ dog. We are asked to

decide whether the landlords, Ernesto and Teri Hernandez,1 owed a duty to the

1 Ernesto Hernandez and his wife, Teri Hernandez, owned several rental properties jointly, including the property at issue here. Ernesto managed the properties and acted as the landlord. Ernesto is referred to here as “Hernandez”; collectively they are referred to as the “landlords.” Saralegui Blanco v. Gonzalez Sandoval, No. 98221-0

petitioner, Maria Saralegui Blanco. The tenants, David Gonzalez Sandoval,

Alexandra Barajas Gonzalez, and Elvia Sandoval, reside in a rented single family

home owned by the landlords. While visiting the home, Saralegui Blanco was

attacked and bitten by the tenants’ dog. Saralegui Blanco sued and alleged that the

tenants and landlords were negligent and liable for her injuries. The trial court

dismissed the claims against the landlords on summary judgment, and we granted

direct review. We affirm the trial court’s grant of summary judgment, dismissing

Saralegui Blanco’s premises liability claim against the landlords.

FACTS

Since 2014, the tenants rented a home in Arlington, Washington, owned by

the landlords. When the tenancy first commenced, it was governed by a written

lease that expired in 2016. Upon expiration of the lease, the tenants continued to

reside in the home and paid monthly rent.

In 2016, the tenants acquired a pit bull puppy. Gonzalez Sandoval notified

one of the landlords, Hernandez, of the dog and its breed. He also installed a wire

fence enclosing the yard for the dog. Hernandez gave consent to build the fence,

but he did not inspect it.

In May 2018, Saralegui Blanco visited the home around noon with four

companions for a bible study with Sandoval. Saralegui Blanco is a member of the

Jehovah’s Witnesses church and regularly engaged in door-to-door bible study.

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That day, Sandoval met with Saralegui Blanco and her companions outside in the

driveway. The dog was in the fenced off portion of the yard and barked when

Sandoval came outside, where she talked with Saralegui Blanco and her

companions for about 10 minutes in the driveway. As the conversation ended,

Saralegui Blanco claimed she saw the dog jump over the fence enclosure. Sandoval

claimed the dog went through a hole in the fence. The dog then knocked Saralegui

Blanco to the ground, attacked her, and bit her ear. A loosened piece of plywood

was found on the fence enclosure.

Saralegui Blanco had visited the home about five times before and would

meet Sandoval outside the home either in the yard or driveway, or on the porch.

She claims that each time, the dog would be in the fenced portion of yard and

would jump and bark.

In his deposition, Hernandez stated that he saw the dog only on one occasion

in 2017 when he visited the home to collect rent. Prior to the incident, he never had

any issues with the tenants or the dog. Gonzalez Sandoval and Sandoval stated in

their depositions and declarations that they had had no prior issues with the dog

exhibiting aggressive behavior toward humans or other dogs. Gonzalez Sandoval

stated that the dog had never escaped from the enclosure before the day of the

attack nor were there any issues with the dog biting or chewing the fence. He

described that he walked the dog regularly and that the dog did not bark at relatives

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or friends who visited the home. In her deposition, Sandoval described that the dog

would bark at strangers who came by the home but would usually stop once

prompted.

Saralegui Blanco brought a negligence claim against the landlords under

both strict liability and premises liability theories. She also raised claims against

the tenants, but those claims are not before us. The landlords moved for summary

judgment. The trial court considered declarations and deposition testimony from

the parties and other individuals who were present during the incident. The parties

also submitted police reports and photo exhibits. The trial court granted summary

judgment and dismissed the claims against the landlords. Saralegui Blanco

unsuccessfully moved for reconsideration and petitioned for direct review. We

granted review of the landlord premises liability issue.2

ANALYSIS

We review an order granting summary judgment de novo. Summary

judgment is appropriate where there is no genuine issue as to any material fact, so

the moving party is entitled to judgment as a matter of law. To prevail in a

negligence claim, the general rule is that a plaintiff must show “(1) the existence of

2 Before our court, the petitioner presents several other theories of liability, including a principal-agent relationship and the implied warranty of habitability. We decline to reach these alternate grounds for liability. Our review is limited to the “landlord premises liability question only.” Order, No. 98221-0 (June 3, 2020).

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a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause.”

Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996).

Here, the issue before us is whether a duty existed. The parties dispute whether the

landlords owed a duty to the petitioner, who was injured by their tenants’ dog,

under a premises liability theory.

We have discussed the underlying premises liability principles in Frobig v.

Gordon, 124 Wn.2d 732, 881 P.2d 226 (1994). Frobig concerned a plaintiff who

was bitten by the tenant’s Bengal tiger. The incident occurred on a large property

rented by the tiger’s owner. The plaintiff alleged negligence and strict liability

claims against the landlords. In that case, we discussed several common law rules

regarding landlord liability. First, regarding animals, we recognized that “the

owner, keeper, or harborer of a dangerous or vicious animal is liable; the landlord

of the owner, keeper, or harborer is not” because liability flows from ownership or

direct control. Frobig, 124 Wn.2d at 735. Second, we recognized that generally,

landlords are not responsible for conditions on the land that are created by the

tenant after the property has been leased. Finally, we determined that landlords

owe no greater duty to the invitees or guests of a tenant than to the tenant. We

noted that “[u]nder Washington law, the landlords would not be liable to the tenant

for the tiger’s attack so should not be liable to third parties for injuries inflicted by

the animal.” Frobig, 124 Wn.2d at 737. We recognized other jurisdictions that

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have held landlords liable for injuries caused by a tenant’s animal where the

landlord knows of the danger and has some control over the animal’s presence. We

declined to adopt that approach. We concluded that as a matter of law, landlords do

not owe a duty to protect third parties from their tenant’s lawfully owned but

dangerous animal. Frobig, 124 Wn.2d at 740-41. Frobig established the general

rule that absent other circumstances, no duty exists where the property is rented

and the landlord cedes possession to the tenant.

The petitioner here relies on a Court of Appeals case in which the court

considered a negligence claim brought by the tenant against his landlord for a dog

bite injury. Oliver v. Cook, 194 Wn. App. 532, 377 P.3d 265 (2016). In Oliver, the

tenant operated an automobile shop on the property. The dog was owned by the

landlord’s friend, who brought the dog to the property and left it unsupervised in

the landlord’s vehicle. The tenant was bitten while the dog remained in the vehicle,

and the tenant brought a negligence claim against his landlord. The Court of

Appeals discussed that in addition to a claim of strict liability for dangerous

animals, a distinct duty could exist under a premises liability theory. Although the

factual basis for analyzing the claim under a premises liability theory is far from

clear, the opinion concluded that sufficient evidence supported the claim

proceeding to trial. However, in that case, other factors supported recognition of a

duty. The plaintiff-tenant was considered an invitee of the landlord and based on

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this, the Court of Appeals relied on the duty of landowners to invitees as stated in

Restatement (Second) of Torts § 343 (Am. Law Inst. 1965). The court considered

the dog a relevant condition on the land and found that genuine issues of material

fact existed as to whether the landlord breached his duty of care. Oliver, 194 Wn.

App. at 543-46.

In premises liability actions, the legal duty owed by the landlord is

dependent on whether the person entering the property is a trespasser, licensee, or

invitee. Degel, 129 Wn.2d at 49. In this case, the petitioner asserts that she was an

invitee or, at least, a licensee on the premises and urges that one of the

corresponding duties, as stated in Restatement (Second) § 343 (invitees) 3 or § 342

(licensees)4 applies here.

3 Restatement (Second) § 343 states, “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he “(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and “(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and “(c) fails to exercise reasonable care to protect them against the danger.”

4 Restatement (Second) § 342 states, “A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, “(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and “(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and “(c) the licensees do not know or have reason to know of the condition and the risk involved.”

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We need not resolve the petitioner’s status here because any distinction

makes no difference. While the duties of care owed to invitees and licensees are

substantively different, both require that “[a] possessor of land is subject to

liability for physical harm caused to [licensees or invitees] by a condition on the

land.” RESTATEMENT (SECOND) §§ 342, 343 (emphasis added). To establish the

existence of a duty, a plaintiff must show that the defendant possessed the land.

See also Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483, 496, 145 P.3d 1196

(2006) (“[T]he test in a premises liability action is whether one is the ‘possessor’

of property, not whether someone is a ‘true owner’ (the titleholder) of property.”).

We have consistently recognized that a “possessor of land” both occupies the land

and controls it. Adamson v. Port of Bellingham, 193 Wn.2d 178, 187-88, 438 P.3d

522 (2019); Jordan v. Nationstar Mortg., LLC, 185 Wn.2d 876, 887, 374 P.3d

1195 (2016) (citing RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL

AND EMOTIONAL HARM § 49 (AM. LAW INST. 2012)). Generally, in a residential

landlord-tenant relationship possession and control are transferred to the tenants.

Clemmons v. Fidler, 58 Wn. App. 32, 38, 791 P.2d 257 (1990) (citing

RESTATEMENT (SECOND) § 356 cmt. a; W. PAGE KEETON ET AL., PROSSER AND

KEETON ON TORTS § 63, at 434 (5th ed. 1984)). While the petitioner’s status as an

invitee or licensee may be significant in a claim against the tenant dog owners that

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occupied the property, this claim was brought against the residential landlords,

who no longer possessed the property.

A claim, however, can exist in situations where the landlord retains control

over a portion of the leased premises. The petitioner claims that the landlords here

retained control and evidently possessed the land because the tenant needed

permission to make changes to the property or to have a pet. This argument adopts

the reasoning of other jurisdictions that allow landlord liability for injuries

involving the tenant’s pet where a landlord knows of the animal and retains a right

to control or remove it. See Uccello v. Laudenslayer, 44 Cal. App. 3d 504, 512-14,

118 Cal. Rptr. 741 (1975) (a landlord may owe a duty of care where they have

actual knowledge of the animal’s dangerous propensities and the right to remove

the animal from the premises); Holcomb v. Colonial Assocs., 358 N.C. 501, 597

S.E.2d 710 (2004) (lease provision where landlord reserved right to remove a pet

established sufficient control over the pet to impose liability on landlord); Gallick

v. Barto, 828 F. Supp. 1168 (M.D. Pa. 1993) (holding a landlord out of possession

may be held liable if they have knowledge of and the authority to remove the pet).

Our cases have already considered and rejected arguments for such a rule. In

Frobig, we recognized that “some courts have held a landlord liable for injuries

inflicted by a tenant’s dangerous animal where the landlord knows of the potential

danger and has some sort of control, either by virtue of provisions in the lease or

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previous dealings with the tenant, over the animal’s presence.” 124 Wn.2d at 737.

We reasoned that “[e]ven if we agreed with [that approach], as applied here, there

is no liability.” Frobig, 124 Wn.2d at 739. We also recognized that landlords

would not be liable to the tenant for an animal attack and so should not be liable to

third parties for injuries inflicted by their tenant’s animal. We reasoned that such

an expansion would conflict with the principle that liability flows from ownership

and direct control of an animal and that landlords are not liable for conditions

created by the tenant after possession is transferred.

For similar reasons, in Clemmons, the Court of Appeals rejected the

argument for landlord liability based on landlord knowledge and control through

lease provisions. In that case, the tenant’s dog bit the plaintiff, a visitor of the

tenant. The plaintiff claimed that the landlord was liable because the landlord knew

that the dog had dangerous propensities. The Court of Appeals held that the

landlord’s knowledge was immaterial and affirmed dismissal of the claim against

the landlord. The Clemmons court reasoned:

[W]e see no reason to depart from our settled rule. That rule recognizes the notion that a tenancy is equivalent to a conveyance: a lessor surrenders both possession and control of the land to the lessee during the term of tenancy. Our rule also promotes the salutary policy of placing responsibility where it belongs, rather than fostering a search for a defendant whose affluence is more apparent than his culpability.

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58 Wn. App. at 38 (citations omitted).5

We reject the argument for an expanded duty in this type of claim, which

would impose liability on landlords for pets that are allowed on rental properties.

Our cases have implicitly, if not expressly, rejected this theory of liability. Under

these circumstances, where the property is a single residential unit, a “tenancy is

equivalent to a conveyance: a lessor surrenders both possession and control of the

land to the lessee during the term of the tenancy.” Clemmons, 58 Wn. App. at 38

(citing RESTATEMENT (SECOND) § 356 cmt. a).

The petitioner alternatively asserts that the claim can proceed on the basis

that the driveway where she was injured was a common area under the landlords’

control. We have recognized situations where landlords owed a duty to maintain

the common areas of the premises. Degel, 129 Wn.2d at 49 (citing Geise v. Lee, 84

Wn.2d 866, 529 P.2d 1054 (1975)). That issue does not arise here, where the tenant

has exclusive possession of the property. The Court of Appeals recognized this

principle, holding that where the rental property is a single unit residential home,

the tenant exclusively possesses the property. Phillips v. Greco, 7 Wn. App. 2d 1,

5, 433 P.3d 509 (2018); Pruitt v. Savage, 128 Wn. App. 327, 331, 115 P.3d 1000

5 The Clemmons court determined that limiting liability in this way was consistent with the statutory schemes regarding liability for dog bites (RCW 16.08.040), ownership of dangerous dogs (RCW 16.08.070-.100), and landlord liability to third parties for defects (RCW 59.18.060). 58 Wn. App. at 36-38.

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(2005). The Court of Appeals held that landlords did not owe a duty under

Restatement (Second) § 343 to plaintiffs injured by the garage door, Pruitt, 128

Wn. App. at 331, and on the back deck, Phillips, 7 Wn. App. 2d at 5, of single

family homes because those areas were not common areas.

Here, the driveway where the petitioner was injured was not a common area

under the control of the landlords. The facts alleged fail to raise a genuine issue of

material fact that the landlords possessed the property regardless of whether the

petitioner was an invitee or a licensee. Based on the facts before us, as a matter of

law the landlords did not possess the property and thus did not owe a duty to the

petitioner under either Restatement (Second) § 343 (invitee) or § 342 (licensee).

Finally, the premises liability claim fails because there is no basis to find the

dog was a dangerous condition on the land, as required to establish a duty under

Restatement (Second) § 343 or § 342. Under our cases, the conditions generally

associated with premises liability duties involve physical features of the property.

See Adamson, 193 Wn.2d at 188-89 (passenger ramp at a port); Curtis v. Lein, 169

Wn.2d 884, 890-91, 239 P.3d 1078 (2010) (wooden dock); Iwai v. State, 129

Wn.2d 84, 95, 915 P.2d 1089 (1996) (natural accumulations of snow and ice in a

parking lot); Degel, 129 Wn.2d at 51-54 (natural body of water on the property);

Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 137, 875 P.2d 621

(1994) (cliff drop off); Geise, 84 Wn.2d at 870 (accumulations of snow and ice).

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The petitioner’s reliance on Oliver is unavailing. That case is best described as an

outlier to the extent some language suggests the court there considered an animal

to be a condition the land. Oliver, 194 Wn. App. at 544. The general rule, as

reflected in Frobig and Clemmons, is that a nonpossessor landlord is not liable for

injuries caused by a tenant’s dog. We decline to stray from the general rule here

and conclude that in this case, there is no basis to regard the possessing tenants’

dog as a dangerous condition on the land as required by Restatement (Second) §

342 and § 343. 6

Alternatively, the petitioner argues that the dog together with the fence

constituted a dangerous condition on the land because the fence was inadequate to

contain the dog. Generally, landlords are not liable for conditions created by the

tenant. Frobig, 124 Wn.2d at 736. And here, although the landlords may have

given permission, the fence was constructed by the tenants after possession was

transferred. The same is true for the dog, which was brought onto the property by

the tenants, who were in possession. The landlords did not inspect the fence, but

even if they did, the petitioner does not show that any danger could have been

discovered. The tenants stated in their depositions that they did not have any prior

6 The petitioner also contends that the dog was dangerous because it was of the pit bull breed. The idea that certain dog breeds are inherently dangerous is without merit. We agree with the legislature’s recognition that “a dog’s breed is not inherently indicative of whether or not a dog is dangerous and that the criteria . . . should be focused on the dog’s behavior.” LAWS OF 2019, ch. 199, § 1(1).

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issues with the dog chewing through the fence, digging, or attempting to escape

from the area. They stated that the dog had never escaped before. One of the

tenants stated that he walked around the enclosure every day to make sure the dog

would not get out. In this case, there is no genuine issue of material fact as to

whether the fence, in itself, posed any potential danger or injured the petitioner.

The source of petitioner’s injury was the dog, which was not a dangerous condition

on the land.

The petitioner fails to establish a genuine issue of material fact that the

landlords possessed the land, retained control over the premises or the dog, or

created a dangerous condition. We affirm the trial court.

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WE CONCUR: