Blanco v. Sandoval

197 Wash.2d 553

485 P.3d 326

Maria Jesus SARALEGUI BLANCO, Petitioner,

v.David GONZALEZ SANDOVAL, Alexandra Barajas Gonzalez, and the marital community comprised thereof, Defendants,Ernesto Hernandez, Teri Hernandez, and the marital community comprised thereof, Respondents.

No. 98221-0

Supreme Court of Washington.

Argued: February 16, 2021

Filed: April 29, 2021

Derek K. Moore, Bishop Law Offices P.S., 19743 1st Ave. S., Normandy Park, WA, 98148-2401, for Petitioner.

Marilee C. Erickson, Reed McClure, 1215 4th Ave. Ste. 1700, Seattle, WA, 98161-1087, Ofelia Ashanti Granados, Attorney at Law, 701 Pike St. Ste. 2200, Seattle, WA, 98101-2358, for Respondent.

JOHNSON, J.

¶ 1 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 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

¶ 2 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.

¶ 3 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.

¶ 4 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. 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.

¶ 5 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.

¶ 6 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 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.

¶ 7 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

¶ 8 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 a duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause." Degel v. Majestic Mobile Manor, Inc. , 129 Wash.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.

¶ 9 We have discussed the underlying premises liability principles in Frobig v. Gordon , 124 Wash.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 Wash.2d at 735, 881 P.2d 226. 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 Wash.2d at 737, 881 P.2d 226. We recognized other jurisdictions that 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 Wash.2d at 740-41, 881 P.2d 226. 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.

¶ 10 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 Wash. 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 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 Wash. App. at 543-46, 377 P.3d 265.

¶ 11 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 Wash.2d at 49, 914 P.2d 728. 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.

¶ 12 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 Wash.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 Wash.2d 178, 187-88, 438 P.3d 522 (2019) ; Jordan v. Nationstar Mortg., LLC , 185 Wash.2d 876, 887, 374 P.3d...