This article will present the different positions that courts have taken during these recent years of experimentation in landlord premises liability, 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 experimentation. Our ultimate objective is to arrive at ,a proposal that we feel is workable, 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 defect and whether the defect arose before or after the beginning of the lease. This will present a system of premises liability that is more rational and less arbitrary than the traditional view. It will be a step toward resolving the confusion that has arisen in recent years in this area of premises liability.
Michael J. Davis & Phillip E. DeLaTorrre,
A Fresh Look at Premises Liability as Affected by the Warranty of Habitability,
59 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol59/iss2/1