Appleberry v. Berry ( 1989 )

WARREN, J.

Plaintiff appeals the trial court’s granting of landlord defendants’¹ motion to withdraw from the jury his claim under the Residential Landlord and Tenant Act (RLTA). The sole issue that we need to address is whether two swimming pool skimmer covers installed in a sidewalk adjacent to the pool constitute a “floor” under ORS 91.770(l)(h). We conclude that they do and reverse and remand.

Defendants rented a single family residence to two tenants. Plaintiff, a friend of one of the tenants, attended a party at that home and was injured when he stepped on two plastic covers of a swimming pool skimmer system and they collapsed. That system was a cleaning device for the pool. The swimming pool and the skimmer were in the backyard, which was accessible from the house through a sliding glass door that opened onto a concrete patio. The backyard was surrounded by a fence. Part of the patio was covered by a roof. The pool, which was uncovered, was adjacent to the covered portion of the patio and was surrounded by a concrete walkway. The skimmer covers were installed in the concrete walkway and were located on the side of the pool at the end farthest from the entrance to the house.

The skimmer system consisted of a pump, a filter and a basket for collected debris, all of which were concealed beneath the concrete sidewalk and were accessible by removing the two plastic covers. When the covers were in place, they were approximately flush with the sidewalk surface. They were designed to fit snugly into a plastic seat, which formed a support around the perimeter of the opening. The plastic seat was, in turn, supported by a concrete lip that was part of the sidewalk. Over the years, both the plastic seat and the underlying concrete had deteriorated, leaving only a small section supporting the plastic covers.

The trial court granted defendants’ motion to withdraw plaintiffs RLTA claim from the jury on the ground that the term “floor” in ORS 91.770(1) (h) does not “apply to surfaces adjacent to a swimming pool exterior.” Plaintiff contends that the sidewalk in which the skimmer system is installed is a “floor” and that defendants are liable for his injuries, because they failed to maintain it in good repair. Defendants argue that the skimmer covers are not a “floor,” because the swimming pool is not part of the “dwelling unit.”² Rather, they contend that the covers are an “appurtenance” under ORS 91.770(1) (f) and that they have not breached any jduty imposed by that subsection.

ORS 91.770 provides, in relevant part:

“(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, and all areas under control of the landlord kept 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[.]”

That statute makes a distinction between “floors” and “grounds and appurtenances” and imposes different duties on the landlord for each. Bellikka v. Green, 306 Or 630, 634, 762 P2d 997 (1988). The landlord must maintain “floors” in “good repair.” ORS 91.770(1)(h). “[G]rounds and appurtenances” need only be kept “clean, sanitary and free * * * of debris.” ORS 91.770(1)(f). The purported disrepair of the skimmer covers would not fall under subsection (1)(f). Defendants are liable for plaintiffs injuries only if the skimmer covers in the sidewalk around the pool constitute part of a “floor.”

“Floor” is not defined in ORS chapter 91. The Supreme Court has interpreted that term in Humbert v. Sellars, 300 Or 113, 708 P2d 344 (1985), in which the plaintiff, a guest, slipped on standing water on a patio that was in front of the entry of an apartment. The patio was enclosed by a fence and was contiguous to the entry. In holding that the patio was a “floor” of a “dwelling unit” within subsection (l)(h), the court stated:

“While one definition of ‘floor’ might include only the part of a room upon which one stands, we believe that the legislature likely intended the term to include all floors in the dwelling unit, including an enclosed patio within the tenant’s exclusive control.” 300 Or at 119.

It also stated that “[t]here is no suggestion that floors, stairs and railings include only interior floors, stairs and railings.” 300 Or at 121.

Defendants contend that the holding in Humbert is limited to a surface that is contiguous and in the natural path of ingress and egress to the dwelling unit. We disagree. The patio in Humbert and the sidewalk here were both constructed with the intent that persons walk on them. The skimmer covers were installed in the concrete sidewalk and, when in place, were flush with the sidewalk surface. From the nature of their design and installation, we conclude that the skimmer covers were also constructed with the intent that persons walk on them. On these facts, we hold that the skimmer covers are a “floor” within the meaning of subsection (l)(h). See Humbert v. Sellars, supra. The trial court erred in granting defendants’ motion and removing from the jury the determination of defendants’ liability under the RLTA.³

Defendants’ argument that we should affirm on the ground that the claim is barred by the Statute of Limitations is without merit.⁴

Reversed and remanded as to defendants Berrys and Chirgwins; affirmed as to defendants Blount and Hansen.

1 This appeal relates only to plaintiff’s claim against landlords Berry and Chirgwin. Plaintiff also brought claims against the two tenants, Blount and Hansen. His claim against one tenant was voluntarily dismissed before trial, and summary judgment was granted in favor of the other. The tenants were not involved in this appeal.

2 ORS 91.705(3) provides, in relevant part:

“ ‘Dwelling unit’ means a structure or the part of a structure that is used as a home, residence or sleeping place by one person who maintains a household or by two or more persons who maintain a common household.”

Defendants’ argument that the swimming pool is not a “dwelling unit” completely misses the point. Plaintiff’s injury was not caused by a dangerous condition of the pool; his injury resulted from the collapse of the skimmer covers. The proper question is whether the skimmer covers are a “floor” of a “dwelling unit.”

3 Because of our disposition of this issue, we do not reach defendants’ argument that the skimmer covers are an “appurtenance.” We also do not address plaintiffs second assignment of error.

4 Although the RLTA claim was subject to a one-year limitation under ORS 12.125 and was filed more than one year after the cause of action arose, plaintiff alleged that defendant made an advance payment without proper notice to plaintiff of the expiration date of the Statute of Limitations, thereby tolling the limitation under ORS 12.155. At trial, the parties agreed to try the limitations issue to the court after the jury verdict on the common law claim. The RLTA claim had been taken from the jury so that it became unnecessary for the court to determine the limitations issue. That issue can be resolved on remand.