Pineda v. Ennabe

• Decision Date: 09 March 1998
• Docket Number: No. B111164,B111164
• Citation: 61 Cal.App.4th 1403,72 Cal.Rptr.2d 206
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 1729, 98 Daily Journal D.A.R. 2365 Doris PINEDA, a minor, etc., Plaintiff and Appellant, v. Faiez ENNABE, Defendant and Respondent.

Page 206

72 Cal.Rptr.2d 206

61 Cal.App.4th 1403, 98 Cal. Daily Op. Serv. 1729,

98 Daily Journal D.A.R. 2365

Doris PINEDA, a minor, etc., Plaintiff and Appellant, v. Faiez ENNABE, Defendant and Respondent.

No. B111164.

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

March 9, 1998.

Bryman & Cipelian and Andrew C. Bryman, Calabasas, for plaintiff and appellant.

Harrington, Foxx, Dubrow & Canter, Dale B. Goldfarb, Thomas O. Russell, III, Kelly A. Ward, and Angela P. Lui, Los Angeles, for defendant and respondent.

NEAL, Associate Justice.

SUMMARY

A landlord has no duty of care to assure that his tenant's children do not fall out of ordinary second story windows. We affirm summary judgment in favor of defendant landlord.

FACTS AND PROCEDURAL HISTORY

This is an action for personal injuries sustained by plaintiff and appellant Doris Pineda, a minor, who fell out the second story window of a building owned by defendant and respondent Faiez Ennabe, knocking out the screen as she fell.

Ennabe moved for summary judgment based on the following evidence:

The lower edge of the window from which appellant fell was 44 inches above the floor. Appellant's mother had placed a bed, consisting of a mattress on a box spring, directly under the window. Appellant was bouncing on the bed shortly before her accident. She was 5 and a half years old at the time. She was playing without adult supervision. She knocked the window screen out or aside and fell 30 feet to the ground.

There was another location in the bedroom, away from the window, suitable for placement of the bed.

The building was inspected the day after the accident and found to be fully in compliance with relevant building codes. The screen was designed and intended to keep out insects, not to prevent children or others from falling out the window.

No prior, similar accident had occurred at respondent's building.

In opposition to summary judgment appellant offered expert testimony on the following points: the risk that children will fall out a window is well known; screens create a false sense of security in parents, who assume the screen may protect against such incidents; labels are available which warn of this hazard, as are devices to prevent screens from being dislodged by children; bars or grates can be installed to protect against the hazard of falling out; tenants can be warned not to put furniture near windows; landlords should rent ground floor apartments to families with small children if space is available.

Appellant also offered the following additional evidence. Respondent had caused "protection" bars to be placed to protect occupants against falling out of certain second and third story windows in the premises; respondent never warned tenants not to put furniture near windows, nor recognized that screens could give a false sense of security; respondent knew that appellant's apartment was occupied by several children; respondent had never read standards promulgated by the Screen Manufacturers Association regarding labels warning that children should be kept away from windows, and had never provided such warnings to his tenants.

The Screen Manufacturers' standards cited by appellant state in relevant part as follows:

"In the past few years, the window and screen industries have experienced an increase in litigation from occurrences of children falling through open windows with insect screens. In some of these cases, a contention was made that the product should have had a warning label.

"The position of the Screen Manufacturers Association and its members has always been that insect screens do not require warning labels as they are intended to provide reasonable insect control and are not intended to provide security or provide for the retention of objects or persons within the interior of the building.

"To date, no testing on the effectiveness of screen warning labels ... has been done to determine whether or not such labels will reduce accident rates.... Nevertheless, we believe that a warning label might serve as an educational tool to increase the awareness of parents and other responsible individuals of the need to supervise children to keep them away from windows."

In reply, respondent offered uncontroverted evidence that "protection bars" had only been installed at windows with low sills, 18"' above the floor, and that respondent had avoided installing such bars at higher windows in upper stories because of concern The trial court granted the summary judgment motion, stating:

they would impede Fire Department access (and presumably also escape by tenants) during a fire.

"In viewing the photographs of the window and considering the height of the window, the fact that the bed was placed under the window and [the] minor plaintiff ... was left unattended, that Defendant had met all Building and Safety Code Requirements, that there was no prior incidents of injury regarding the windows or screens in the building, it was not foreseeable that a person, especially a minor, would fall out, and as such there was no duty on Defendant to take protective measures for the window, and it was not negligence as a matter of law."

This appeal followed.

DISCUSSION

Since Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, the liability of landowners for injuries to people on their property has been governed by general negligence principles.

The first step in determining whether there is liability for negligence is to decide whether the defendant owes a duty of care to the plaintiff. The question whether a duty is owed is a question of law, for the court to decide. (Richards v. Stanley (1954) 43 Cal.2d 60, 67; , 271 P.2d 23 6 Witkin Summary of California Law (9th ed.,1988), Torts, section 748, p. 83, and cases cited there.)

In determining whether a duty exists, the court is to consider a number of factors. In Rowland, the court enumerated them as follows:

--the foreseeability of harm to plaintiff;

--the degree of certainty that the plaintiff would suffer injury;

--the closeness of the connection between the defendant's conduct and the injury suffered;

--the moral blame attached to the defendant's conduct;

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