Phillips v. Greco: An Attempt to Unseat Long-Standing Washington Landlord-Tenant Case Law

Author: Michael Kutzner

Guest Editor: Alla Policastro

March 4, 2019 9:00am

In an unsuccessful attempt to unseat long-standing Washington landlord-tenant case law, plaintiff Donna Phillips filed suit challenging existing case law pertaining to duties of implied warranty of habitability owed in non-common areas.  (Phillips v. Greco, No. 75911-6-1, 2019 Wn. App (Div. 1 Jan. 16, 2019).)


On April 30, 2012, guest plaintiff Phillips left her boyfriend’s single-family home.  She realized she had forgotten her phone and returned to the house. She began to climb the step leading to the deck, when the step broke, causing injury to her left foot.

The single-family home contained a mother-in-law unit. The mother-in-law unit was rented to different tenants on a separate lease. The mother-in-law unit had its own backyard, patio area, and a side entry off the carport. The carport was the only shared area between the mother-in-law unit and the main house. The main house was rented by Phillips’s boyfriend and his roommate from the owner, defendant Kathleen Greco.  The deck was only for use of the tenants in the main house, because it was attached to the main house. Phillips sued Greco for negligence, claiming Greco breached her duty to maintain safe and habitable premises.

Defendant Greco filed a motion for summary judgment.  The trial court granted the motion and found “that (1) the deck was a not a common area, (2) the Restatement (Second) Property § 17.6 (1977) has not been extended to non-tenants in Washington, and (3) under Washington law, the possessor, i.e. the tenant, was responsible for the deck condition. (Id.)

The Holding

The Court of Appeals affirmed the trial court’s ruling on three bases. First, the Court found that because the deck was attached to and designated only for the main house, it did not fall into the classification of a common area. The Court looked to established and common law and reasoned that a landlord owes no greater duty to the invitees or guests of a tenant than owed to a tenant and has no duty to repair non-common areas absent an express covenant to repair common areas. Since the deck in this case was not a common area, no duty was owed.

Second, the Court found that there was no affirmative negligence, as there was no evidence the deck was in dangerous condition at the time the tenant leased the property.  Greco and the tenant both made repairs over time. Because there was no covenant to repair, the court found Greco was not negligent towards the tenant (Phillips’s boyfriend) and the court was unwilling to entertain extending affirmative negligence towards non-tenants.

Third, the court found that the tenant, not the owner, was responsible for the premises under Washington law. As such, Greco did not owe or breach any duty to Phillips.


This holding serves as a reminder to the level of difficulty of overturning established law. The narrow approach utilized by the trial and appeals courts causes pause and insight to the domino effect that would ensue if landlord-tenant relationship were to be disturbed.

(This article stems from an unpublished opinion that was permitted review by the Washington State Court of Appeals. A motion was filed by Respondent to publish; that motion was granted.)
