Morrison Law Journal


The Morrison Law Journal November 2014 Volume IX, Edition 11 When Compliance With Code Is Not Enough: Court Of Appeal Rules That Hotel Resort Had Duty To Install Bars To Prevent Child From Falling From Second Floor Window – Even Though Applicable Building Codes Did Not Require The Installation Of Window Restrictors By: Edward F. Morriso n, Jr., Esq. Larry A. Schwartz, Esq.
Owners of premises such as hotels and resorts typically argue that, in the event of a personal injury accident involving a fall by a minor from an upper floor window, they are not liable for what are often serious and sometimes lethal injuries because (i) window screens are not intended as safety devices and (ii) there are no applicable building codes which require window screens to serve as a safety device. Owners of such premises have had, however, only mixed success. In that regard, there is one line of cases which provides that a landlord generally does not have a duty to take measures to prevent a child from falling out of an upper story apartment window. [See, Pineda v. Ennabe (1998) 61 Cal.App.4th 1403 (case in which minor fell from window which was 44 inches above the floor after his mother had placed a bed under the window)] However, there is another line of cases which has held that a duty might exist. [See, Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895 (case in which minor fell from window that was approximately 28 inches from the floor on the second story of an apartment building and for which there were no guards)] The published opinion in Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) WL5499374 (“Lawrence"), issued by the California Court of Appeal, Fourth District, will shed some further light on this question. In Lawrence, Jeff and Nan Lawrence and their three young sons checked into the La Jolla Beach and Tennis Club Hotel, a seaside resort in San Diego County, in October 2008. They were on a family vacation to celebrate the sixth birthday of Michael Lawrence and his twin brother Luke. The parents requested a room on the first floor of the hotel, but when the family checked in, there were no rooms available on the first floor until the next day, so they checked into a room on the second floor. The next morning, Nan Lawrence opened the window from which their son Michael fell because she wanted to hear the Ocean. The mother and father were in the hotel room with their three boys with the three boys playing, eating grapes and coloring in their coloring books near the sofa. At some point, the parents looked up and their son Michael was not in sight. They 1 then determined that Michael had fallen out of the window onto a concrete pavement and suffered serious head and brain injuries as a result. It was later determined that the window from which Michael fell had a screen but it had popped out and fell to the ground. The sill of the window is 25 inches above the floor and at least four to six inches deep. The child, who was able to testify in deposition, indicated he had put his foot on the window sill and fell when he "leaned forward to see something". Jeff and Nan Lawrence filed a lawsuit for damages and a separate suit was later filed by Michael through Nan Lawrence acting as his guardian ad litem. The two actions were later consolidated. The hotel then filed a Motion for Summary Judgment as to the parents’ Complaint supported by a declaration from Stephen B. Olsen, a certified building inspector, who opined that the subject window complied with all building codes and that there is nothing in any applicable codes that required the window to have "window restrictors". In opposition briefing, the Lawrences submitted deposition testimony of the hotel's former director of operations, Hawley Stevens, demonstrating that the hotel had placed bars on some of the hotel’s ocean front bay windows, but had not placed bars on the window in which the young child fell. The Lawrences also submitted the declaration of Zachary M. Moore, a mechanical engineer, who pointed out that there were safety bars in two of the windows in the subject hotel room and on windows in other ocean facing rooms, but not on the window from which the child fell. Mr. Moore also pointed that, on average, 18 children ages 10 and under die annually from falls from windows. Moore also pointed out that the American Society for Testing and Materials (“ASTM”) had developed standards to prevent children from falling out of windows. The hotel then filed a supplemental declaration from Mr. Olsen wherein Olsen testified that that the ASTM standards are manufacturing standards that do not apply to "end users", like defendants, unless state or local governments have adopted them. He further noted that, based on his research, the ASTM standards cited by Mr. Moore had not been adopted by the State of California, San Diego County or the City of San Diego. The Trial Court granted summary judgment. After the Court granted the first Motion for Summary Judgment, the hotel filed a second Motion for Summary Judgment on the child's complaint. The Court granted that Motion as well. 2 The plaintiffs appealed. On Appeal, the Court of Appeal reversed holding that a triable issue of fact existed under the facts of the case. In its ruling, the Court of Appeal noted that the issue concerning a landlord's duty is not the existence of the duty, but rather the scope of the duty under the particular facts of the case (i.e., that there is always some duty to the tenant or guest, with the issue being whether the duty applied to the facts of the case). In that regard, after noting the greater degree of care which is owed to children, the Court focused on the fact that the hotel had placed bars on some of the hotel’s ocean front bay windows, but had not placed bars on the window in which the young child fell (it also noted that the hotel had, subsequent to the accident, installed bars on the window from which the child fell and the Court ruled that fact could also be considered on the basis that installation of the bars was feasible). Also, as for compliance with local building codes, the Court ruled that an owner's compliance with applicable safety regulations, while relevant to show due care, is not dispositive, if there are other circumstances requiring a higher degree of care. The Lawrence case will likely be cited by the plaintiffs’ bar in future personal injury lawsuits arising from falls by minors from upper floor windows. However, it should be noted that the Lawrence decision will not be dispositive of cases where, for example, a parent places furniture under a window thereby providing a manner of unintended egress from a window. About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com. Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com. Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter. 3

Owners of premises such as hotels and resorts typically argue that, in the event of a personal injury accident involving a fall by a minor from an upper floor window, they are not liable for what are often serious and sometimes lethal injuries because (i) window screens are not intended as safety devices and (ii) there are no applicable building codes which require window screens to serve as a safety device. Owners of such premises have had, however, only mixed success. In that regard, there is one line of cases which provides that a landlord generally does not have a duty to take measures to prevent a child from falling out of an upper story apartment window. [See, Pineda v. Ennabe (1998) 61 Cal.App.4th 1403 (case in which minor fell from window which was 44 inches above the floor after his mother had placed a bed under the window)] However, there is another line of cases which has held that a duty might exist. [See, Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895 (case in which minor fell from window that was approximately 28 inches from the floor on the second story of an apartment building and for which there were no guards)]

The published opinion in Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) WL5499374 (“Lawrence"), issued by the California Court of Appeal, Fourth District, will shed some further light on this question.

In Lawrence, Jeff and Nan Lawrence and their three young sons checked into the La Jolla Beach and Tennis Club Hotel, a seaside resort in San Diego County, in October 2008. They were on a family vacation to celebrate the sixth birthday of Michael Lawrence and his twin brother Luke. The parents requested a room on the first floor of the hotel, but when the family checked in, there were no rooms available on the first floor until the next day, so they checked into a room on the second floor. The next morning, Nan Lawrence opened the window from which their son Michael fell because she wanted to hear the Ocean. The mother and father were in the hotel room with their three boys with the three boys playing, eating grapes and coloring in their coloring books near the sofa. At some point, the parents looked up and their son Michael was not in sight. They

then determined that Michael had fallen out of the window onto a concrete pavement and suffered serious head and brain injuries as a result.

It was later determined that the window from which Michael fell had a screen but it had popped out and fell to the ground. The sill of the window is 25 inches above the floor and at least four to six inches deep. The child, who was able to testify in deposition, indicated he had put his foot on the window sill and fell when he "leaned forward to see something".

Jeff and Nan Lawrence filed a lawsuit for damages and a separate suit was later filed by Michael through Nan Lawrence acting as his guardian ad litem. The two actions were later consolidated. The hotel then filed a Motion for Summary Judgment as to the parents’ Complaint supported by a declaration from Stephen B. Olsen, a certified building inspector, who opined that the subject window complied with all building codes and that there is nothing in any applicable codes that required the window to have "window restrictors".

In opposition briefing, the Lawrences submitted deposition testimony of the hotel's former director of operations, Hawley Stevens, demonstrating that the hotel had placed bars on some of the hotel’s ocean front bay windows, but had not placed bars on the window in which the young child fell. The Lawrences also submitted the declaration of Zachary M. Moore, a mechanical engineer, who pointed out that there were safety bars in two of the windows in the subject hotel room and on windows in other ocean facing rooms, but not on the window from which the child fell. Mr. Moore also pointed that, on average, 18 children ages 10 and under die annually from falls from windows. Moore also pointed out that the American Society for Testing and Materials (“ASTM”) had developed standards to prevent children from falling out of windows.

The hotel then filed a supplemental declaration from Mr. Olsen wherein Olsen testified that that the ASTM standards are manufacturing standards that do not apply to "end users", like defendants, unless state or local governments have adopted them. He further noted that, based on his research, the ASTM standards cited by Mr. Moore had not been adopted by the State of California, San Diego County or the City of San Diego.

The Trial Court granted summary judgment. After the Court granted the first Motion for Summary Judgment, the hotel filed a second Motion for Summary Judgment on the child's complaint. The Court granted that Motion as well.

The plaintiffs appealed. On Appeal, the Court of Appeal reversed holding that a triable issue of fact existed under the facts of the case. In its ruling, the Court of Appeal noted that the issue concerning a landlord's duty is not the existence of the duty, but rather the scope of the duty under the particular facts of the case (i.e., that there is always some duty to the tenant or guest, with the issue being whether the duty applied to the facts of the case). In that regard, after noting the greater degree of care which is owed to children, the Court focused on the fact that the hotel had placed bars on some of the hotel’s ocean front bay windows, but had not placed bars on the window in which the young child fell (it also noted that the hotel had, subsequent to the accident, installed bars on the window from which the child fell and the Court ruled that fact could also be considered on the basis that installation of the bars was feasible). Also, as for compliance with local building codes, the Court ruled that an owner's compliance with applicable safety regulations, while relevant to show due care, is not dispositive, if there are other circumstances requiring a higher degree of care.

The Lawrence case will likely be cited by the plaintiffs’ bar in future personal injury lawsuits arising from falls by minors from upper floor windows. However, it should be noted that the Lawrence decision will not be dispositive of cases where, for example, a parent places furniture under a window thereby providing a manner of unintended egress from a window.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.

Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com.

Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter.