“Would you know my name
If I saw you in heaven?
Would it be the same
If I saw you in heaven?”
“Tears in Heaven” by Eric Clapton
Those lyrics are from the song written and sung by Eric Clapton after the death of his four-year-old son, Conor, who fell from a window of a New York apartment building. “Tears in Heaven” won Song of the Year and other awards in 1993.
Unfortunately we have a similar event that occurred at the La Jolla Beach and Tennis Club in San Diego County.
La Jolla Beach and Tennis Club
Five-year-old Michael Lawrence fell from a window in his family’s second story hotel room at the La Jolla Beach and Tennis Club. Michael suffered serious head and brain injuries. His parents sued on his behalf claiming the Club was negligent in failing to install safety bars or some mechanism to prevent a youngster from falling out of the window.
Michael’s mother had opened the window to hear the ocean. Young Michael later testified in his deposition that he put his foot on the window sill and fell when he leaned forward to see something. However it happened, the window’s screen popped out and he fell one story to the ground.
Window Code Compliant
The Beach and Tennis Club defended the lawsuit claiming Michael’s parents were careless and inattentive, and the screen through which he fell was not a safety device and was not defective; additionally, the window complied with all applicable building codes.
During the trial, one expert testified that 18 children ages 10 and under die annually from falls from windows in the U.S.
The trial court ruled for the Club concluding it was not required to “forestall the foreseeable consequences of others’ negligent conduct.”
Window Safety Devices
Testimony was elicited describing three different types of devices that protect children from falling out of operable windows: safety bars, strong screens and window opening control devices which limit windows opening to four inches or less. Apparently such fall prevention devices are not required for hotels in the California Building Code.
In California, a hotel owner or innkeeper “owes a duty to its guests to maintain the premises in a reasonably safe condition…a duty to protect guests against unreasonable risk of physical harm…an innkeeper is not an insurer of the safety of the guests.” So the cases say.
“Tears in Heaven”
“Beyond the door,
There’s peace I’m sure,
And I know there’ll be no more
Tears in heaven.”
The Fourth District Court of Appeal ruled that a property owner’s compliance with the building code does not in and of itself establish that the owner has exercised due care. The Court, I believe creating a new, higher standard of care for hotels in California, wrote: “Balancing the foreseeability of the risk of harm against the burden of eliminating or mitigating the risk weighs in favor of a determination that the scope of a hotel owner’s duty includes taking measures to protect children from falling from such windows.”
The La Jolla Beach Tennis Club case is what is called a summary judgment decision so is viewed most favorably to the plaintiff, but young Michael’s parents are now allowed to take their case to a jury (where they must prove negligence) because the Court of Appeal found the Beach and Tennis Club failed to show it had no duty to take measures to prevent an accident like Michael’s.
Unless the Legislature steps in or this case is overturned by the California Supreme Court, this decision will have a profound impact and essentially require hotels in California to install window safety devices.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com.
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