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Building Owner Not Liable for Death of Tenant Who Fell From Roof—C.A.
There Was No Duty to Decedent, Grimes Writes, Because His Action
In Needlessly Encountering Obvious Danger, Was Not Foreseeable
By a MetNews Staff Writer
The owner of a building had no duty to protect a tenant who had consumed alcohol and a marijuana-laced brownie, went up to the roof where he had no business being, and fell off, resulting in his death, the Court of Appeal for this district held yesterday.
Justice Elizabeth A. Grimes of Div. Eight authored the opinion. It affirms a summary judgment granted on July 9, 2020, by Los Angeles Judge Jon R. Takasugi in favor of the building’s owner, the Young Men’s Christian Association of Glendale, in a wrongful death action. The decedent was Abel Montes Jr., 23.
Both Takasugi and Grimes relied upon the 2017 decision by Div. Six of this district’s Court of Appeal in Jacobs v. Coldwell Banker Residential Brokerage Co. There, it was held that a real estate company was not liable to a prospective buyer who was viewing a home and stepped on a diving board to get a better view, and falling into an empty pool, incurring injuries, when the diving board collapsed.
The accident was not foreseeable, and therefore, the court in Jacobs reasoned, there was no duty.
2020 Ruling
Takasugi said in his 2020 order:
“The dispositive question therefore is, like in Jacobs, whether there is evidence that, as a practical necessity, Mr. Montes was foreseeably required to expose himself to the danger of falling off the roof. The Court finds that there is not.”
Grimes wrote:
“We see no meaningful distinction between this case and Jacobs. The danger from the steeply sloping roof with its broken Spanish tiles was open and obvious, and neither party contends otherwise. Nor do plaintiffs contend Mr. Montes ‘had a practical necessity to be on the roof.’ ”
She declared:
“[D]efendant owed no duty to do anything to protect Mr. Montes from his voluntary, unnecessary, and uninvited risk taking.”
Earlier Ruling
Summary judgment had been denied by Takasugi on Dec. 10, 2019. The judge explained at that time:
“There are triable issues of material fact concerning whether the condition of the roof where the fall occurred was dangerous, and whether or not Decedent fell, as opposed to jumped, from the roof.”
The YMCA challenged that ruling in a petition for a writ of mandate, arguing that Takasugi had failed to take cognizance of its lack of duty to the decedent. Div. Eight on Feb. 25 issued an alternative writ, and Takasugi on March 4 responded by vacating his order of Dec. 10 and scheduling a hearing for the purpose of ruling on whether the YMCA had as duty to its tenant, ultimately concluding that it did not.
The case is Montes v. Young Men’s Christian Assn. of Glendale, 2022 S.O.S. 3444.
Gary S. Lewis and Gregory A. Coolidge of the Beverly Hills firm of Carpenter & Zuckerman represented the plaintiff/appellants. Stephen E. Norris and Eric S. Boorstin of the Burbank appellate law firm of Horvitz & Levy joined with Woodland Hills attorney Sonali Olson in arguing for affirmance.
Copyright 2022, Metropolitan News Company