White v. Contreras
| Decision Date | 10 January 2002 |
| Docket Number | No. B150383.,B150383. |
| Citation | 95 Cal.App.4th 137,115 Cal.Rptr.2d 299 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Dejoure WHITE, a Minor, etc., Plaintiff and Appellant, v. Wilfredo CONTRERAS et al., Defendants and Respondents. |
Homampour & Associates and Arash Homampour, Beverly Hills, for Plaintiff and Appellant.
Harrington, Foxx, Dubrow & Canter, Thomas O. Russell III, Angela Lui Walsh, and Kelly A. Ward, Los Angeles, for Defendants and Respondents.
Plaintiff DeJoure White (plaintiff), through his father Derrick White, appeals from the summary judgment entered in favor of defendants and respondents Wilfredo Contreras (Contreras) and Con Pro Serve Property Management Service.1 For the reasons set forth below, we reluctantly follow the authorities that hold that a landlord owes no duty to install screens or other protective devices to protect against a child tenant falling out of a window in the leased unit. We hold, however, that a landlord who covenants or undertakes to replace a window screen, but fails to do so, may be liable to the child tenant who falls out of the unscreened window. Here, the plaintiff has raised triable issues of fact as to the issues concerning the covenant or undertaking and legal cause, and we therefore reverse the summary judgment.
In June, 2000, three-year-old DeJoure White fell more than 25 feet to the ground from the bedroom window of the third-story apartment in the City of Los Angeles he shared with his father, Derrick White, and his mother, Tasha Norris. As a result, plaintiff sustained serious injuries that left him permanently physically and mentally disabled.
The bedroom window through which plaintiff fell was 95 inches wide and 35 inches high. It included a fixed pane of glass in the center, flanked by openings on either side that were covered by sliding windowpanes. The opening on the left had a window screen in place, but the opening on the right did not. The windowsill was 46 inches above the floor. Plaintiffs bed was placed with its headboard directly to the left of the window. A dresser nearly 30 inches high was placed along the wall 16 inches from the right side of the window. A declarant stated that "[i]tems on the dresser caused the distance between the top of the dresser and the sill to be closer in certain areas."
The apartment in which plaintiffs family resided was owned by defendant landlord Wilfredo Contreras, who bought the building in December 1999. After Contreras purchased the building, he promulgated "rules" that expressly provided that they were part of the residential leases. Plaintiffs mother signed the document that set forth the rules. No written lease is in evidence. The rules state that the tenants could not make repairs or alterations without the landlord's consent. The landlord required that all repairs be performed by either him or his manager. Tenants who violated the rules risked termination of their leases. The landlord declared that "as part of my duties as owner, I have always performed the routine maintenance and repairs to the apartment building."
Plaintiffs father told landlord that the screen was needed because the father believed his child, plaintiff, could fall from the unscreened window opening. The landlord told plaintiffs father in December 1999 that the landlord would replace the missing screen. Between January 2000 and June 2000, the landlord came to the apartment five times but never installed a screen. When the father asked when the landlord would do so, the landlord replied, "Don't worry about it, we're gonna [sic] do it...." The father believed that the landlord's rules precluded him from replacing the screen himself. The landlord replaced missing screens in other units in the building and also knew that other children lived in the building.
On the day of plaintiffs fall, his mother put him down for his nap in the bedroom around noon and then did housework. Because it was a hot day, she opened both sides of the bedroom window. When the father came home shortly before 3:00 p.m. that day, the mother was sweeping the floor about eight feet outside the bedroom. Plaintiffs father did not see plaintiff in the bedroom, but noticed the window blinds were moving. He looked out the window and saw his son on the ground below.
Plaintiffs biomechanical expert said in a declaration that it was "highly unlikely" that the 41.5-inch child had been able to hoist himself off the floor and through the 46-inch-high window opening. Instead, the expert believed, plaintiff climbed on top of the nearby dresser and somehow fell from there. After conducting a variety of tests on sample window screens, the expert concluded that a "standard replacement" window screen would have been strong enough to keep plaintiff from falling through the open window. The expert also believed that such a screen would have been an effective barrier if plaintiff had either seen or touched it. Another expert, a civil engineer, submitted a declaration stating that the unprotected window rendered the apartment "manifestly unsafe."
Plaintiff's mother knew that plaintiff was an active child who climbed on tables and chairs. In February and March of 2000, the dresser was not by the window but was instead alongside another wall next to the child's bed. The mother knew plaintiff had at times been able to climb from the bed to the top of the dresser, and she had scolded or spanked him when he did so. The mother said she moved the dresser next to the window in April 2000 because the cable television line was not long enough, and she did not desire to purchase a longer cable. According to the father, the dresser was moved next to the window because it was used as a stand for the TV set, and the only working electrical outlet was in that spot. The father said that the dresser drawers would have allowed plaintiff to climb on top of the dresser. The mother had told the father that plaintiff was capable of opening the dresser drawers. When the father found plaintiff after the accident, he noticed that the dresser drawers were open.
After the fall, plaintiff, with his father as his guardian ad litem, filed suit, contending the bedroom window had negligently been left "uncovered." Plaintiffs father, who discovered plaintiff after he fell, also sued defendants in a cause of action for negligent infliction of emotional distress. The father later voluntarily dismissed this cause of action. Defendants moved for summary judgment to challenge plaintiffs contention that the landlord negligently failed to replace a missing window screen that would have prevented plaintiffs fall. Relying primarily on two decisions—Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, 87 Cal.Rptr.2d 34 and Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 72 Cal.Rptr.2d 206—defendants argued that (1) they did not have a duty to install window screens because as a matter of law screens are not intended for safety purposes; and (2) they did not owe plaintiff a duty to install a screen or prevent the accident and were not responsible for the accident because it occurred through his parents' carelessness. The trial court ruled that as a matter of law, defendants owed no duty or obligation to plaintiff to install the screen and entered judgment against both plaintiff and his father.
Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc, § 437c, subd. (c).) In reviewing an order granting summary judgment, the appellate court emulates the trial court in determining whether, as a matter of law, the motion for summary judgment should have been granted. "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Nevertheless, the California Supreme Court has warned that the summary judgment "procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact." (Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553 556, 122 P.2d 264.) Accordingly, this court, as should the trial court, strictly construes the evidence against the moving party and liberally in favor of the opposing party. Any doubts regarding the propriety of summary judgment should be resolved in favor of the opposing party. (Ibid.; Kulesa v. Castleberry (1996) 47 Cal. App.4th 103, 111-112, 54 Cal.Rptr.2d 669.)
A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849, 853, 107 Cal.Rptr.2d 841, 24 P.3d 493.) If the plaintiff meets that burden, summary judgment must be denied. (Code Civ. Proc., § 437c, subd. (c).)
In a negligence case, the issue of whether a defendant owes a duty of care to the plaintiff is a question of law. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57, 77 Cal.Rptr.2d 709, 960 P.2d 513; Richards v. Stanley (1954) 43 Cal.2d 60, 67, 271 P.2d 23 [...
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