What are the Elements of a Cause of Action for Negligence Per Se in California?

In the recent California appellate decision of Jimenez v. Hayes Apartment Homes, LLC,  in 2016, four-year old Karinah Jimenez and her two-year old brother Isaiah (collectively plaintiffs) fell out of the second-floor bedroom window in the apartment where they lived with their mother.

Both children sustained severe injuries; Isaiah partially recovered, but Karinah never did and suffers from permanent brain damage.

Through Shary Marquez, their guardian ad litem, Isaiah and Karinah brought suit against Hayes Apartment Homes, LLC (Hayes), the property owner, and its property manager, Preferred Property Management, Inc. (collectively defendants).

The complaint pleaded negligence under two theories, one based on general negligence and one based on negligence per se.

Alleging that the bedroom window from which they fell presented a foreseeable risk of harm to child tenants, plaintiffs claimed that defendants breached a duty of care to them, proximately causing their injuries.

In addition, plaintiffs alleged that, in renovating the apartment building shortly before the accident, defendants violated the California Building Standards Code by installing their bedroom window without a fall prevention device. That code violation, plaintiffs alleged, constitutes negligence per se and was another proximate cause of their injuries.

The case proceeded to trial on both negligence theories, and following the close of plaintiffs’ case, the trial court granted a nonsuit motion.

Plaintiffs appealed from the ensuing judgment.

To the extent the complaint pleaded general negligence, the appellate court concluded nonsuit was properly granted. Because, on this record, there was no foreseeability of harm to plaintiffs, their general negligence claim failed for lack of any showing of duty.

To the extent the complaint pleaded negligence per se, the appellate court concluded nonsuit was improper.

The court found that, under section 3404.1.1, defendants were exempt from the requirement under section 1013.8 that they installed a fall prevention device on operable upper floor windows. The crux of this ruling was that the plaintiffs’ bedroom window was code-compliant without a fall protection device when the apartment building was originally constructed, and all defendants did in replacing the window was make an “alteration” using “like-for-like” “original building materials.”

The appellate court held that that interpretation of the 2013 Building Code was incorrect.

Accordingly, it affirmed in part, reversed in part, and remanded for retrial on plaintiffs’ surviving claim of negligence per se.

At the time of the accident, plaintiffs lived in Lodi, California, with their mother, Marlina Guerrero, in one of the rental units in Blakely Townhomes. Blakely Townhomes was constructed in 1980. The parties agree that the property met all relevant Building Code requirements at that time. Hayes did not construct the building originally, but rather purchased the building in early 2016.

After purchasing Blakely Townhomes in 2016, Hayes applied for and was issued a building permit to undertake renovations of the building. These renovations included the replacement of 27 windows with upgraded glass to reflect current energy efficiency requirements in the Building Code. The renovated windows also featured new vinyl framing, replacing the old aluminum framing.

At the time of the accident, the version of the operative Code was the 2013 Building Code.

The second floor of Blakely Townhomes apartment building housed the plaintiffs’ bedroom, a bathroom plaintiffs shared with Guerrero, and Guerrero’s bedroom. From its window sill to the floor in the plaintiffs’ bedroom, the height of the bedroom window measured 35 11/16 inches, or just shy of three feet. The height from the window to the pavement below outside measured 12 feet 7 inches.

Throughout the course of the renovations, Hayes did not install fall prevention devices on the replaced upper floor windows. These devices, designed to restrict the opening of windows to no more than a four-inch diameter sphere, can cost as little as $44 and rarely cost more than $100.

Hayes reportedly spent $165,000 on renovations within three months of purchasing the property. Hayes also did not review the 2013 Building Code prior to installing the windows to ensure that they were compliant with the Code’s current requirements.

On the day of the accident, four adults were in the Guerrero apartment. Guerrero, Karinah, and Isaiah were on the second floor, inside the children’s bedroom. Guerrero saw that the bedroom window was open. She planned to give Karinah and Isaiah a bath, so she decided to close the window while she left to draw the bath and told the children to stay away from it. When Guerrero closed the window, she did not see a ladder or a worker outside of the apartment.

Guerrero then left the children’s bedroom and went into the bathroom to run the bathwater. The bathroom was about seven steps away from the children’s room. Waiting for the bathwater to heat up, Guerrero retrieved clothes and towels for the children, then reentered the bathroom. She did not close the bathroom door, but it closed on its own, as it frequently did. Guerrero then heard a “big boom,” which turned out to be the sound of the children falling from their bedroom window.

Following the accident, Karinah was taken into surgery for an emergency decompressive craniectomy, then put in a medically induced coma for several weeks. She later had two surgical cranioplasties, but now suffers from permanent cognitive disability due to irreversible brain injury. Isaiah too suffered a brain injury but did not require surgery. He was discharged from the hospital after about one week.

Plaintiffs called multiple witnesses to address how people in the building and construction industry understand the Building Code and industry practices. The first of these witnesses, Zachary Moore, a safety and forensic engineer, gave expert testimony on “all industry standards say to use fall prevention” on windows like the subject window. Moore stated that the subject window was a hazard and required a safeguard.

According to Moore, the 2013 Building Code includes requirements that are designed to prevent children from being killed or injured by falling out of unsecured windows. Specifically, the Code requires that a window block a sphere with a diameter of four inches from passing through it if: (1) the bottom of the window is less than three feet from the floor and (2) the fall distance from the window to the ground is six feet or more. Moore explained that the four-inch number was chosen to represent the size of a child’s head.

Plaintiffs’ complaint alleged that defendants were negligent in “installing, maintaining, managing, operating, and owning the subject window,” and that defendants “had specific and direct knowledge of the unreasonable dangers posed by the window but failed to provide a warning to Plaintiffs.”

Each of these alleged acts or omissions may reasonably be regarded as part of the installation, maintenance, management, operation, or ownership of plaintiffs’ bedroom window. Under that broad heading, alleged failure to comply with industry standards requiring window safeguards along with actual knowledge that children lived in the apartment may reasonably qualify as negligent installation.

And the allegations that defendants scheduled repair work without notice and failed to stop performance of that work leading up to the incident qualify as negligent maintenance. But even granting all that, none of it alone is enough to sustain a claim of general negligence. To succeed in making these acts or omissions the predicate for a viable negligence claim, defendants must establish the defendants owed them a duty of care.

The question of a landlord’s duty is not whether a duty exists at all, but rather what is the scope of the landlord’s duty given the particular facts of the case?

In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required.

While the issue is close given the relatively modest cost of taking a simple step to minimize the hazard by installing a fall prevention device, the defendants’ inattention to the requisites of the 2013 Code, and the fact we are dealing with injuries to young children, the appellate court agreed with the trial court that the claim of general negligence fails on this record for lack of a showing of duty.

The elements of negligence per se in a case involving alleged breach of a regulation are that: (1) the defendant violated the regulation; (2) the violation proximately caused the injury; (3) the injury was of the type that the regulation was intended to prevent; and (4) the person suffering the injury belonged to the class of persons whom the regulation was adopted to protect.

In order for a claim of negligence per se to succeed, all four elements must be shown.

Agreeing with defendants, the trial court ruled that the first element is missing here because, when the renovation of Blakely Townhomes took place, the “original materials” exemption in section 3404.1.1 excused them from any obligation to install a fall prevention device on plaintiffs’ bedroom window.

Plaintiffs argued the “original materials” exemption in section 3404.1.1 does not apply because a window is not a material and that defendants were therefore required to install a fall prevention device under section 1013.8.

Defendants, on the other hand, argued that nothing in the Building Code precludes interpreting a window to be a material and if it qualifies as such, they were not out of compliance with section 1013.8 because of the exemption in section 3404.1.1.

The pivotal negligence per se question raised by this appeal is this: Did the bedroom window constitute an original material within the meaning of the Building Code? If the answer to that question is yes, the section 3404.1.1 exemption applies. The appellate court’s answer was no.

It was undisputed that the minimum height requirements specified in section 1013.8 required the defendants to install a fall prevention device in plaintiffs’ bedroom window during the renovation of the Blakely Townhomes, unless some exemption applied.

The question to be resolved is whether defendants may claim the exemption in section 3404.1.1 for the replacement of “original building materials” in the alteration of a building that “complied with the [Building Code] at the time of the original construction” and did not become a substandard building” after the “alteration” took place.

LESSONS:

1.         The elements of negligence per se in a case involving alleged breach of a regulation are that: (1) the defendant violated the regulation; (2) the violation proximately caused the injury; (3) the injury was of the type that the regulation was intended to prevent; and (4) the person suffering the injury belonged to the class of persons whom the regulation was adopted to protect.