Monday, January 14, 2002
Landlord May Be Liable for Injury to Child Falling From Window—C.A.
By KENNETH OFGANG, Staff Writer/Appellate Courts
A landlord who agrees to repair or replace a broken or missing window screen and does not do it may be liable for injury to a child who falls out of the window, the Court of Appeal for this district has ruled.
With its newest member, Justice Richard Mosk, writing the opinion, Div. Five Thursday reinstated a suit by a Los Angeles couple whose 3-year-old became permanently disabled as the result of a 25-foot fall from a third-story window.
Derrick White sued after his son, DeJoure White, suffered the fall in June 2000.
In opposition to landlord Wilfredo Contreras’ motion for summary judgment, White presented evidence that he had complained to the landlord about the unscreened window, with openings covered by sliding windowpanes, for fear the child could climb up on a dresser and fall out.
The landlord, he said, had been promising for months to install a screen before the accident occurred. “Don’t worry about it, we’re gonna do it,” Contreras said, according to the father’s testimony.
White said he didn’t replace the screen himself because he believed that the landlord’s rules prohibited him from doing so.
White said he came home from work on the day of the accident, noticed the window blinds were moving, then went to the window and saw the child on the ground below. The parents said it was a hot day, hence the window being open, and that DeJoure’s mother had put the child down for a nap while she did housework.
An expert declared that it was “highly unlikely” the child could have hoisted himself off the floor and through the window opening. It was, the expert said, more likely that he climbed up on the dresser, which was about 30 inches high—the window was 46 inches from the floor—and about 16 inches to the right of the window.
Los Angeles Superior Court Judge J. Stephen Czuleger granted summary judgment, holding that the defendant owed the child no duty to install a window screen as a matter of law.
Mosk, writing for the Court of Appeal, acknowledged a line of cases in California and elsewhere holding that a landlord owes no duty to a tenant’s child to install a window screen.
But the justice questioned the legitimacy of the rule.
“Although it is well-established that landlords are not all-purpose insurers of tenants’ safety…we are skeptical of the conclusion that no duty to install and maintain adequate window screens should exist, in light of the evolution of tort, contract and landlord-tenant laws,” Mosk wrote.
Several states, the justice noted, have rejected the traditional rule.
Traditional analysis would seem to indicate that a duty should be imposed, Mosk said. The danger is foreseeable, the burden of complying with a screening requirement would be minimal compared to the consequences of not imposing the duty, and the risk of liability can be spread through insurance, the justice reasoned.
The Los Angeles Municipal Code already requires window screens in rental units, he noted.
Mosk agreed, however, that the general rule is too well-established to be abrogated by the Court of Appeal, as opposed to the Supreme Court or the Legislature. But even if there is no general duty, he said, the landlord does have a duty to install the screen when such action has been promised.
The justice explained:
“The common-law rule that a landlord has no duty to repair is subject to three exceptions—concealment of a known danger, an express covenant to repair, or a statutory duty to repair…Promises by the landlord to repair qualify as an express promise to repair and impose a duty upon the landlord if they are supported by consideration or are included in the lease.”
The plaintiff’s evidence, Mosk said, indicates that Contreras—through rules distributed to the tenants “and incorporated into whatever lease there was”—expressly covenanted to put a screen on the window.
The justice also cited a state Supreme Court ruling that a defendant may be held liable for the negligent performance of a voluntarily assumed undertaking for the protection of third persons. The same reasoning, Mosk said, “applies to instances in which the promisor fails to perform the undertaking altogether, because there is no logical distinction between the failure to perform a task properly and the failure to perform it at all—there is the same risk, the same harm, the same reliance, and at least the same level of moral culpability in nonperformance as in partial or substandard performance.”
Attorneys on appeal were Arash Homampour for the plaintiff and Thomas O. Russell III, Angela Lui Walsh, and Kelly A. Ward of Harrington, Foxx, Dubrow & Canter for the defendant.
The case is White v. Contreras, 02 S.O.S. 164.
Copyright 2002, Metropolitan News Company