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Martini v. Post

Court of Appeals of Washington, Division 2

November 26, 2013

Thomas Martini, Individually and as Personal Representative, et al., Appellants,
Paul Post, Respondent

Page 474

Appeal from Pierce County Superior Court. Docket No: 11-2-06974-1. Date filed: 04/24/2012. Judge signing: Honorable Edmund Murphy.

John R. Connelly Jr., Anna L. Price, and Micah R. LeBank (of Connelly Law Offices ), for appellant.

Margaret Y. Archer (of Gordon Thomas Honeywell ), for respondent.

AUTHOR: Joel Penoyar, J. We concur: Jill M Johanson, A.C.J., Thomas R Bjorgen, J.


Page 475

Penoyar, J.

[178 Wn.App. 156] ¶ 1 Thomas Martini appeals the trial court's dismissal of his negligence action against his landlord Paul Post for his wife's, Judith Abson's death after a fire in their rented house. Martini filed the negligence action against Post individually and on behalf of Abson and her three daughters. Before the fire, Martini had repeatedly asked Post to repair windows that were inoperable because they were painted shut. Abson died of smoke inhalation after the inoperable windows prevented her from escaping the fire. The trial court granted Post's motion for summary judgment on the issue of cause in fact and then denied Martini's motion for reconsideration.

¶ 2 Martini appeals, arguing that (1) summary judgment was improper because there are genuine issues of material fact regarding whether Post's failure to repair the windows was the cause in fact of Abson's death and (2) the trial court erred when it denied his motion for reconsideration given [178 Wn.App. 157] the new evidence

Page 476

he submitted and the court accepted, demonstrating Abson attempted to open a window and expert testimony opining that Abson would have survived if she had been able to open a window. We reverse the trial court's denial of Martini's motion for reconsideration because the new evidence creates a genuine issue of material fact regarding Abson's cause of death and remand for trial.


I. Background

¶ 3 Beginning in 2006, Abson and Martini leased a house from Post. During the initial walk through of the house, Martini noticed the windows in the northeast bedroom could not be opened and he requested that Post repair them. After his initial request, Martini requested that Post repair the windows in the northeast bedroom on at least two more occasions, but Post never repaired them.

¶ 4 In the early morning of February 27, 2007, a fire began in the home's basement. Two houseguests and Abson were awake and noticed the fire. One of the houseguests awoke Martini, who gathered the three children and ushered them outside. Both of the houseguests who initially discovered the fire also safely exited the house.

¶ 5 In the course of the fire, Abson, one of her daughters, and a third houseguest became trapped on the second floor. Abson was trapped in the back side of the house and was eventually found in the northeast bedroom, which was the room with inoperable windows. Martini heard Abson yelling from an upstairs bedroom in the back of the house before the fire fighters arrived at the house.

¶ 6 Abson's daughter and the houseguest were trapped in the southeast bedroom. While trapped, Abson's daughter heard Abson yell from the back of the second floor to get out of the house. Abson's daughter and the houseguest opened a window and took turns sticking their heads out of the window to breathe fresh air. When the fire fighters arrived, [178 Wn.App. 158] they immediately rescued Abson's daughter and the houseguest using a ground ladder.

¶ 7 Abson's daughter and the houseguest told the fire fighters that Abson was still in the house. Two fire fighters reentered the house through a second floor window. They found the door to the northeast bedroom ajar. The fire fighters opened the door and found Abson unconscious on the floor. Due to Abson's size and her condition, the fire fighters were unable to exit with Abson through a window via a ground ladder. After other fire fighters gained control of the first floor fire, the fire fighters exited with Abson using the house stairs and she was transported to the hospital. Resuscitation efforts were not successful and Abson was pronounced dead at the hospital. An autopsy showed Abson died from smoke inhalation.

¶ 8 After the fire, the City of Tacoma fire investigator noted the presence of handprints and marks around the east window in the northeast bedroom, where Abson was trapped. In his complaint, Martini alleged there was evidence of handprints around the window. In his motion for reconsideration, he provided a photograph that showed markings around the window.

¶ 9 A certified fire and explosion investigator, Noel Putannsuu, inspected the northeast room and found the window on the east wall to be inoperable. He stated that he (a 210 pound, 6 foot 2 inch tall man) could not open the window with reasonable or even forceful effort, and thus, Abson would have been unable to open the window while trapped in the northeast bedroom. The window along the north wall had been removed by the time he conducted his investigation.

II. Procedural History

¶ 10 Martini filed a negligence action against Post. Post moved for summary judgment, alleging that (1) Martini could not produce evidence that the window in the northeast bedroom was painted shut at the time of the fire; (2) [178 Wn.App. 159] because Martini and Abson were aware that the window was painted shut, Post could not be liable under Washington law; and (3) Martini failed to produce evidence that any negligence by Post was the proximate cause of Abson's death.

¶ 11 Martini responded, arguing that (1) Post is liable for Abson's death because he

Page 477

breached the Residential Landlord Tenant Act's (RLTA) implied warranty of habitability [1] and violated building requirements of the Tacoma Municipal Code [2] and (2) because her daughter survived by opening a window, Abson also would have survived if the windows in the northeast bedroom had not been painted shut. Martini supported his response with Putannsuu's expert testimony. Putannsuu testified that Abson would have been unable to open the window and that Post " should have ensured that the ...

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