California Court of Appeals, Fourth District, First Division
APPEAL from a judgment of the Superior Court of San Diego County Nos. 37-2010-00101462- CU-PO-CTL and 37-2011-00102538-CU-PO-CTL Randa Trapp, Judge. Reversed.
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Law Offices of Martin N. Buchanan and Martin N. Buchanan for Plaintiffs and Appellants.
Michelman & Robinson, David M. Samuels and Robin James for Defendants and Respondents.
When he was five years old, plaintiff Michael Lawrence fell from a window in his family's second story hotel room at the La Jolla Beach and Tennis Club and suffered serious head and brain injuries. Michael's parents, Nan Lawrence and Jeff Lawrence, filed a first amended complaint against La Jolla Beach and Tennis Club, Inc. and La Jolla Beach and Tennis Club Partners, L.P. (defendants) seeking damages under the following three causes of action sounding in negligence: "Negligence, " "Dangerous Condition of Property, " and "Negligent Infliction Of Emotional Distress." Michael, through his mother as guardian ad litem, later filed a separate complaint alleging the same causes of action. After the court consolidated the cases, defendants filed separate motions for summary judgment on the two complaints. The court granted both motions and entered judgment in favor of defendants.
Plaintiffs contend the court erred in ruling that (1) defendants had no duty and breached no duty to install a fall prevention device on the window from which Michael fell; and (2) the accident was not caused by defendants' failure to install a fall prevention device on the window. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants owned and operated the La Jolla Beach and Tennis Club Hotel at the time of Michael's accident. Jeff and Nan Lawrence and their three sons checked into the hotel on October 4, 2008. They were on a family vacation to celebrate the sixth birthday of Michael and his twin brother Luke. Nan requested a room on the first floor of the hotel when she made the reservation, but when the family checked into the hotel there were no rooms available on the first floor until the next day, so they checked into a room on the second floor.
On the morning of October 5, 2008, Nan opened the window from which Michael fell because she wanted to hear the ocean. The three boys were playing, eating grapes, and coloring in their coloring books near the sofa. Jeff and Nan were sitting at the kitchen table just to the left of the window. Jeff was looking at his computer and Nan was going through papers to plan the family's schedule of activities for the day when they heard Luke scream. They looked up and Michael was not in sight. He had fallen out of the window onto concrete pavement and suffered serious head and brain injuries as a result. When he fell, the window's screen 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. Michael testified in his deposition that he put his foot on the windowsill and fell when he "leaned forward to see something."
After the court consolidated the two cases, defendants filed a motion for summary judgment, which they intended to be directed at both Jeff and Nan's first amended complaint and Michael's complaint. However, the court construed the motion as being directed only at Jeff and Nan's first amended complaint. Defendants sought summary judgment against Jeff and Nan on the following grounds: (1) Jeff and Nan's own carelessness and failure to use precautions caused Michael's fall; (2) defendants were not negligent in the ownership and operation of the premises; (3) the window complied with all applicable building codes; (4) the screen through which Michael fell was not a safety device; and (5) plaintiffs were never guaranteed a ground floor room.
Defendants' moving papers included the expert declaration of Stephen D. Olsen, a certified building inspector, who stated that the subject window complied with all applicable building codes and there was nothing in the codes that required the window to have "window restrictors." Olsen further stated: "[W]indow screens are not now, nor have they ever been, intended as safety devices. Window screens are intended to keep insects out and there is nothing in the applicable building codes and standards that required a window screen that could serve as a safety device on that window."
In opposition to the motion, Jeff and Nan argued the window's compliance with building codes did not establish that defendants were not negligent and defendants had not offered any evidence to meet their burden of establishing they were not negligent. Jeff and Nan argued there were triable issues of fact as to whether defendants were negligent in failing to take safety measures that would have prevented Michael's accident, and whether their negligence in failing to take such safety measures caused the accident.
Jeff and Nan submitted deposition testimony of Hawley Stevens, the hotel's former director of operations. Stevens testified that he made the decision to place bars on the hotel's ocean front bay windows. He explained that the majority of the bay windows were seats with cushions and pillows on them and "leaning against them was an issue...." When asked about the purpose of putting bars on those windows, he testified that guests leaning against the windows "were basically pushing screens out, or it was more of a support and a protection too." Placing the bars on the windows minimized the screens' falling out. Counsel asked Stevens, "Is it fair to say that the reason that the bars were placed on the window was because of a concern of something or somebody falling out the window?" Stevens answered, "Yes."
Jeff and Nan also submitted the expert declaration of Zachary M. Moore, a mechanical engineer with "extensive technical and practical experience in conducting safety investigations and analysis of premises." Moore inspected the subject hotel room, discovery materials, and relevant codes and standards. He noted there were safety bars on two of the windows in the room and on windows in other ocean facing rooms, but not on the window from which Michael fell. He further noted that on the day of the accident there was no restrictive device to keep the window from opening all the way and the screens provided no safety resistance. Moore's professional opinion was that the hotel room was in a dangerous condition on the day of the accident, defendants were negligent in failing to provide safety bars or other safety measures for the window, and their negligence was the direct cause of Michael's falling out of the window.
Moore averred that on average, 18 children ages 10 and under die annually from falls from windows. Consequently, the United States Consumer Product Safety Commission asked the American Society for Testing and Materials (ASTM) to develop standards for devices that would protect children from falling out of windows. A subcommittee of ASTM developed two such standards. In Moore's words, "[d]evices covered by the standards fall into one of three groups: [¶] Fall prevention window guards, which consist of closely spaced bars in the device designed to fit into or onto the window
frame and keep children from falling through it; [¶] Window fall prevention screens, which are an attached mesh or material that fits into or onto a window, must possess sufficient strength to prevent a child from falling through an open window and are totally different in design, look and function from standard insect screens; and [¶] Window opening control devices, which limit windows opening to 4 inches or less unless a release mechanism (one that resets) is deliberately undone." Moore opined that the accident was foreseeable and preventable, and that "had the defendants used reasonable care to protect their guests, by installing something as simple as a wooden bar or thumb screw within the window tracks to prevent the window from being able to open wide enough for a child to fit through, this incident never would have occurred."
Defendants filed a supplemental declaration of Olsen in response to Moore's declaration. Olsen stated that ASTM standards are manufacturing standards that do not apply to "end users" like defendants unless state or local government has adopted them. His research revealed that the ASTM standards cited by Moore had not been adopted by the state, San Diego County, or the City of San Diego. He therefore concluded that the ASTM standards did not apply to defendants. He asserted that neither of the two ASTM standards that Moore cited applied to the window at issue in this case because one applies only to windows that are more than 75 feet above the ground, and the other applies only to new construction and had not been adopted into the California Building Standards Code.
The court granted defendants' motion for summary judgment on Jeff and Nan's first amended complaint, ruling 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 court stated: "Given that the Building Code requirements 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. As such, defendants' duty did not include taking additional protective measures for the subject window. [Citation.] [¶] Accordingly, defendants did not breach their duty of care to prevent the kind of accident which occurred here. The accident occurred in a hotel room. While a hotel owner arguably may foresee that its guests might open a second story window and ...