Monday, November 3, 2014
Court of Appeal Revives Suit Over Child’s Fall From Hotel Window
By KENNETH OFGANG, Staff Writer
The family of a child who fell out of a second-story window at a resort hotel where they had gone to celebrate the boy’s sixth birthday presented sufficient evidence of the existence and breach of a duty of care, and of causation, to avoid summary judgment, the Fourth District Court of Appeal ruled Friday.
Div. One reinstated Nan and Jeff Lawrence’s suit against the owners of the La Jolla Beach and Tennis Club Hotel, saying San Diego Superior Court Judge Randa Trapp mistakenly concluded that the hotel had no duty as a matter of law to install a safety bar or similar device that might have prevented the fall.
Michael Lawrence testified in his deposition that he had climbed up on a windowsill after his mother opened the window so she could hear the ocean. Michael said he put his foot on the windowsill and “leaned forward to see something” before he fell.
The youngster suffered serious head and brain injuries after falling. His parents acknowledged they did not see the fall—the father said he was looking at his computer and the mother said she was looking at papers while trying to plan the family’s activities—but heard Michael’s twin brother scream when he fell.
The window was screened, but the screen popped out when Michael fell.
Summary Judgment Granted
In granting summary judgment, Trapp reasoned that “defendants did not breach their duty of care and the accident was not caused by defendants’ failure to install a safety device on the window.”
The judge elaborated:
“Given that the Building Code requirements [regarding windows] were met, the height of the window, the fact that Michael’s mother opened the window, the parents were nearby but distracted, the window was not in a common area over which defendants had sole control, and there were no prior incidents of anyone or anything falling from any windows, it was not foreseeable that a minor would fall out.”
Trapp added that “a hotel owner…is not required to forestall the foreseeable consequences of others’ negligent conduct” and may “assume that parents would take precautions to supervise their children and prevent them from falling out windows.”
But Justice Richard Huffman, writing for the Court of Appeal, said the hotel did not meet its burden of showing that it did not have a duty to take measures to prevent falls by children, or that it did not breach any duty
He cited a declaration by a mechanical engineer and safety expert who noted that several windows in the room had safety bars, which the window from which the child fell lacked. He also noted that on the day of the accident, there was no device in place to prevent the window from opening all the way, and the screens provided no safety resistance, and opined that the lack of such precautions was the “direct result” of the fall.
The justice said the case was similar to Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, and other cases holding that landlords and hotel owners may be liable for failing to take reasonable precautions against the risk of small children falling out of windows in common areas. The fact that Michael fell from a window in a guestroom rather than a common area is not dispositive of the duty issue, he added.
The cases establish that “a greater degree of care is generally owed to children because of their lack of capacity to appreciate risks and avoid danger,” Huffman wrote. The opening of the window, the child climbing up on a windowsill only 25 inches off the ground, and the failure of the child to appreciate the danger were all foreseeable, he added.
Huffman went on to say that the defendants’ claim that the parents’ failure to supervise caused the fall cannot be resolved on summary judgment, and that the trial judge’s rulings that there were no triable issues as to breach of duty or causation flowed from the erroneous determination that no duty existed and were similarly flawed.
The case is Lawrence v. La Jolla Beach and Tennis Club, Inc., 14 S.O.S. 4914.
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