Amos v. Alpha Property Management

• Decision Date: 26 July 1999
• Docket Number: No. B124680,B124680
• Citation: 73 Cal.App.4th 895,87 Cal.Rptr.2d 34
• Court: California Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 5944 Carl Louis AMOS, a Minor, etc., Plaintiff and Appellant, v. ALPHA PROPERTY MANAGEMENT et al., Defendants and Respondents.

Page 34

87 Cal.Rptr.2d 34

73 Cal.App.4th 895, 99 Cal. Daily Op. Serv. 5944

Carl Louis AMOS, a Minor, etc., Plaintiff and Appellant, v. ALPHA PROPERTY MANAGEMENT et al., Defendants and Respondents.

No. B124680.

Court of Appeal, Second District, Division 7, California.

July 26, 1999.

Lee Arter, Los Angeles, for Plaintiff and Appellant.

J. Alan Frederick, Peter Y. Lee, Marrone, Robinson, Frederick & Foster, Burbank, for Defendants and Respondents.

JOHNSON, J.

When he was just two and a half years old, Carl Amos fell out of a low, open, unprotected window in a common passageway on the second floor of his apartment building. He seeks to recover from the owners and managers of the building for the severe injuries he suffered in the fall. Relying on our opinion in Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 72 Cal.Rptr.2d 206, the trial court granted summary judgment to the defendants on the ground "defendants had no duty to assure that plaintiff did not fall out of the subject window." We conclude the trial court's reliance on Pineda was misplaced. Therefore, we reverse.

FACTS AND PROCEEDINGS BELOW

Carl and his mother were tenants of the apartment building where the accident took place. On the afternoon of the accident Carl was visiting a neighbor and her son in their apartment on the second floor. The neighbor placed two and a half year old Carl in front of the television set in her living room and then went into the kitchen to prepare lunch for her son. After a few minutes she heard someone yell a baby had fallen out a window. She then noticed her front door was open and Carl was missing.

The window from which Carl fell was at the end of the second floor hallway. The building manager testified, "That window is always open." Although the window had a screen, the tenants frequently removed the screen so they could throw their trash out the window into the dumpster below. The screen was off the window when Carl fell. The record shows the window was the "sash" type which has an upper and a lower section. This type of window is opened by raising the lower section so it overlaps with the upper section. When the lower section was raised completely it created an opening approximately 30 inches wide and 27 inches high, in other words a five and a half square foot hole in the wall. The sill was approximately 28 inches above the floor. At the time of the accident, there was nothing to deter, hinder or restrain a two-year-old such as Carl from climbing through the window and falling onto the concrete alley below. The lease Carl's mother signed included "house rules" which provided, among other things, "Children are not allowed to play in hallways, stairways, or other common areas of the project."

As a result of the fall from the window, Carl suffered severe head injuries and a lacerated liver. He brought this action through his guardian ad litem alleging negligence on the part of the building's owners and managers. Defendants filed two motions for summary judgment contending they neither owed nor breached any duty to Carl. Both motions were denied. However, following our decision in Pineda, supra, the trial court granted defendants' motion for reconsideration and ruled defendants owed no duty to Carl. Carl filed a timely appeal from the subsequent judgment.

For the reasons explained below, we conclude Pineda is distinguishable from the present case. Defendants have failed to show, as a matter of law, they neither owed nor breached a duty of care to Carl.

DISCUSSION

I. A LANDLORD OWES A DUTY TO THE TENANT TO EXERCISE DUE CARE IN MAINTAINING AND REPAIRING THE COMMON AREAS OF THE BUILDING.

It is beyond dispute that "traditional tort principles impose on landlords ... a duty to exercise due care for the resident's safety in those areas under their control." (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499, 229 Cal.Rptr. 456, 723 P.2d 573.) Furthermore, it has been held in California and other jurisdictions this duty includes within its scope adopting reasonable precautions to prevent young children from toppling out of windows in common areas of the building. ¹ The following cases illustrate this principle. Each involves a child who fell from an open window located in a common passageway or in his or her own apartment.

The closest California case on point is Roberts v. Del Monte Properties Co. (1952) 111 Cal.App.2d 69, 243 P.2d 914 in which the court affirmed a judgment for a seven-year-old tenant who fell through an open fourth floor window while playing on a pile of mattresses and furniture in a hallway. When the child "was on the top mattress he accidentally tumbled backward towards the open window behind the pile, the screen in it gave way, and the boy and screen fell into the patio." (Id. at p. 72, 243 P.2d 914.) As in the present case, the defendant's negligence in Roberts was not predicated on the condition of the screen but on the fact a pile of furniture and mattresses, attractive to children, was near an unprotected, open window. (Ibid.) In upholding the verdict for the child, the court held the landlord owed the child a duty "based on the general principle that the person in possession of premises must take such precautions for the safety of his business invitees as are reasonable under all the circumstances, considering their relation, the burden of the interference with his own affairs and the danger to the invitees to be anticipated, and that special caution is required in behalf of invitees of immature age whose inability to appreciate and propensity to ignore certain dangers he ought to consider." (Id. at p. 74, 243 P.2d 914.) The court quickly disposed of defendant's argument it could not be held liable for the plaintiff's injuries because the building's tenants were under orders not to allow their children to play in the hallways. This order, the court pointed out, was not directed to the children but to their parents. (Ibid.) ²

In Freeman v. Mazzera (1957) 150 Cal.App.2d 61, 62-63, 309 P.2d 510, the court reversed a judgment of nonsuit against a minor injured in a fall from an opening off the landing of the stairway in his apartment building. The opening was 32 inches wide and 9 feet 8 inches high. The bottom of the opening was 19 inches above the floor of the landing. The lower part of the opening was protected by an iron lattice frame attached to the outside of the building. Children had been in the habit of playing in this opening, using its lower edge as a platform on which to stand or sit. The four-year-old plaintiff was playing on this edge when the iron lattice gave way and he fell to the ground below. The court held the landlords owed their tenants "a duty to use ordinary care to keep [the stairway] area in a safe condition." (Id. at p. 63, 309 P.2d 510.) There was evidence the landlords breached this duty because they failed to inspect or repair the lattice work even though they knew young children played on the window ledge and knew the lattice had been loose for at least a year before the accident. (Ibid.) The court rejected the landlords' argument they owed no duty in this case because the injured plaintiff was putting the opening and the lattice to a use not reasonably intended. Citing Roberts v. Del Monte Properties Co., supra, the court held this argument "does not apply to small children." (Ibid.)

A landlord's duty to a child tenant was also discussed in Schlemmer v. Stokes (1941) 47 Cal.App.2d 164, 117 P.2d 396. In Schlemmer, a three-year-old child climbed onto the arm of a davenport in his apartment and leaned against a window screen to watch some children playing in the yard below. The screen gave way and he fell out the window. The child sued the landlord alleging the screen had been improperly installed and maintained. On the issue of duty, the court held the landlord owed plaintiff "the duty of exercising reasonable care to keep the premises in a safe condition." (Id. at p. 167, 117 P.2d 396.) A judgment for the landlord was affirmed on the ground there was insufficient evidence to support a finding the landlord breached her duty. (Ibid.)

The ten-year-old plaintiff in Madison v. Reuben (1970) 128 Ill.App.2d 11, 262 N.E.2d 794 was sitting on the sill of an open window in a common hallway attempting to remove some trash stuck to her shoe. She lost her balance and fell two stories to the ground below. The evidence showed the window formerly had a sash and panes but they had been broken approximately two weeks earlier and not replaced. The landlord appealed from a judgment for the plaintiff contending the evidence was insufficient to support a finding of breach of duty or proximate cause. Implicitly holding the landlord owed a duty of care to the plaintiff, the appellate court stated: "Whether defendant's failure to install the necessary sash and window panes was the proximate cause of plaintiff's injury was an issue ... for the trier of fact to decide." Based on a photograph of the window with the sash and panes in place, the court concluded: "The sash appears to be of sturdy construction and mounted to the window frame in such a way that it cannot be said plaintiff would have been injured had they been in place at the time of the accident." (Id. at p. 796.)

In the month of July, a three-year-old Louisiana boy fell out of a second story apartment window which his mother had left open for ventilation because the landlord had failed to repair the air conditioner. The window was such as might be constructed to receive French doors and had a ledge within the window opening, only inches off the ground, in which a child could sit, stand or kneel. The window had a lightweight aluminum screen. There were no guard rails of any kind. Affirming a judgment for the child in Brady on Behalf of Brady v. Rivella Dev., Inc. (La.App.1982) 424 So.2d 1104, the Court of Appeal held the landlord had a duty not to create or maintain an unreasonable risk of harm to...