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59 Wash. L. Rev. 141 (1983-1984)
A Fresh Look at Premises Liability as Affected by the Warranty of Habitability

handle is hein.journals/washlr59 and id is 155 raw text is: A FRESH LOOK AT PREMISES LIABILITY AS AFFECTED BY THE WARRANTY OF HABITABILITY Michael J. Davis* Phillip E. DeLaTorre** For centuries, the law of landlord premises liability was marked by consistency and predictability. Not only were authorities in agreement as to the content of the law, but there was also universal consent as to the underlying rationales. This state of the law, developed in feudal England, was transported to this country and remained basically unchanged until well into the current century. Recent years, however, have been marked by upheaval and instability. The law of premises liability, once so firmly based on the estate convey- ance theory, is now being unsettled by concepts of contract, warranty, negligence, and strict liability. As a result, the landlord in many jurisdic- tions can no longer rely on traditional immunity but instead must respond to increased duties owing to tenants. In many jurisdictions, courts face a considerable task in defining the scope of these increased duties, since they must struggle to accommodate the various available bases. This article will present the different positions that courts have taken during these recent years of experimentation in landlord premises liabil- ity, discuss how courts have become muddled in sorting out the various theories, and propose a system of liability that would be fair and soundly based on modem policy considerations. We shall first place the question in context by considering the traditional theories of liability. We will then discuss the statutory impact on landlord responsibility and consider the recent tort and warranty theories that set the stage for the period of experi- mentation. Our ultimate objective is to arrive at ,a proposal that we feel is work- able, combining and reconciling various theories that courts have recently considered. Specifically, we shall propose a theory of liability that is not based solely on the question of who had control over the defective item causing the injury, but one that also considers the discoverability of the * Dean and Professor of Law, University of Kansas; B.A., 1964, Kansas State University; J.D., 1967, University of Michigan. ** Associate Professor of Law, University of Kansas; B.A., 1975, University of Kansas; J.D., 1978, Harvard University. The authors express their appreciation to George D. Giddens, Jr., and Craig L. Evans for their research assistance.

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