It Doesn’t Get Much Sadder Than This.

A mom, dad and their three children checked into a tennis club hotel for their vacation to celebrate the sixth birthday of the family’s twin boys. They requested a room on the first floor; when none were available, they checked into a room on the second floor. Mom was looking through brochures to plan the day’s activities and dad was at his computer, both sitting a few feet away from their three boys who were eating grapes and coloring.  All of a sudden one of the twins screamed. The other twin was gone. He had fallen out of the window onto a concrete pavement and suffered serious head and brain injuries. When he fell, the window’s screen popped out and was found on the ground below. The sill of the window is 25 inches above the floor and six inches deep. In an action against the hotel, the hotel moved for summary judgment, contending the parents’ carelessness caused the fall and the window complied with building codes. A defense expert declaration stated “there was nothing in the codes that required the window to have ‘window restrictors.’” In opposition, plaintiffs attached the deposition testimony of the hotel’s former director of operations who said he made a decision to place bars on the hotel’s bay front window because guests had been leaning against the windows and “were basically pushing the screens out.” Plaintiff’s expert declared there were safety bars on other second floor hotel windows, but not on the one from which the boy fell. He also said the U.S. Consumer Product Safety Commission asked the American Society for Testing and Materials to develop standards for devices to protect children from falling from windows, and that there are two standards, bars or prevention screens. In its reply papers, the defendant argued those standards do not apply to end users, such as the hotel, unless a state or local government has adopted them, which was not the case here. The trial court granted summary judgment in favor of the hotel. In reversing, the appellate court stated: “The issue concerning a landlord’s duty is not the existence of the duty, but rather the scope of the duty under the particular facts of the case.” With regard to the parents’ failure to closely supervise the boy, the appellate court stated: “A parent’s negligence in supervising a child may be a factor in determining causation. . .but generally not a factor in determining duty.” The court concluded there were triable issues of fact regarding whether defendants breached their duty and whether such breach was the cause of the accident. (Lawrence v. La Jolla Beach and Tennis Club, Inc. (Cal. App. Fourth Dist., Div. 1; October 31, 2014) 231 Cal.App.4th 11, [179 Cal.Rptr.3d 758].)