Miller v. David Grace, Inc

212 P.3d 1223 (2009)

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Nature of the Case

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Facts

P moved into an apartment owned and operated by First Choice Management (Landlord). It contained a wooden balcony deck and U-shaped metal guardrail. During Tenant's inspection, P discovered the balcony railing was loose. P advised the apartment manager of the defects on at least two occasions. The manager said it would be fixed, but no repairs were made. P only saw part of the defect and the railing was also missing additional screws on the other side of the balcony, and the balcony flooring was cracked in the very spot where the railing should have been attached by screws to the wooden deck. While standing on the balcony, P placed her hand on the defective railing, leaned forward, and the entire U-shaped railing along with P fell from the second floor, landing on the ground below. She sustained multiple injuries. Just eleven months prior to P's fall, Landlord employed David Grace, (Contractor) to 'rebuild all balconies as per city code.' According to Contractor, Landlord did not notify Contractor of any problems with the repair work. P sued for negligent maintenance and construction against Landlord and Contractor. P asserts that Landlord owed her a duty to repair the defective railing. P contends the dangerous condition was not an open and obvious hazard and therefore, she was unable to fully appreciate the risk. P contends that Contractor 'owed a duty to construct and install a safe balcony railing.' Ds moved for summary judgment. The trial court granted summary judgment to Ds. P appealed. The appellate court affirmed judgment in favor of Landlord but reversed the judgment in favor of Contractor because P's negligence action stems from an improperly installed railing, not from Contractor's alleged duty to warn her of the defective condition. P appealed.