Evans v. >KDF>
City>
Towers>



















Filed 7/3/12
Evans v. KDF City Towers CA1/1

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for publication
or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST APPELLATE DISTRICT



DIVISION ONE




>

DOMINIQUE EVANS, Plaintiff and Appellant, v. KDF CITY TOWERS LP et al., Defendants and Respondents.

A130917 (Alameda County Super. Ct. No. RG07344884)

I.
Introduction

This case arises out of the tragic
death of a three-year-old girl after she fell from a window in her eighth-floor
apartment. Dominique Evans, the girl’s
mother, appeals from a summary judgment
entered in favor of the owners and managers of
the apartment building.href="#_ftn1"
name="_ftnref1" title="">[1] Evans maintains there are triable issues of
fact regarding whether the window was unsafe and whether the owners/managers
breached their duty of care to provide “reasonably safe windows.” We affirm.

>II.
Background

Evans, her three-year-old daughter,
Tia Simmons (Tia), and her younger son lived in a two-bedroom apartment on the
eighth floor of City Towers Apartments in Oakland. On the afternoon of November 19, 2006, Evans
was supervising four children at her apartment, including Tia, when she learned
her grandmother was in the hospital.
Around 5:15 p.m., she asked her friend, Nicole Smith (Smith), to watch
the children while she went to the hospital.
When Smith arrived with her own two children, the apartment smelled like
marijuana smoke. Before Evans left the
apartment, “she opened the window in her bedroom about ‘halfway’ which was
‘enough for someone to fall from it.’ ”

After Evans left the apartment,
Smith checked on the children, who were watching television in Tia’s
bedroom. Smith then sat in the living
room with her baby, eating and watching television. Tia came out once to ask Smith for water,
then returned to her bedroom. Smith did
not see Tia go into Evans’s bedroom.
Shortly thereafter, Tia fell out of Evans’s bedroom window and suffered href="http://www.sandiegohealthdirectory.com/">fatal injuries.

Evans’s bedroom had one window, the
lower edge of which was 35 inches high.
Evans admitted that “[a]lthough [she] could have positioned her bed
several feet away from the window . . . [she] chose to place it next to the
window.” She “elevated her bed on milk
crates, so that the top of her bed was even with the bottom of the window sill
. . . [¶] . . . [¶] . . . [because] she ‘always like[d] to be
higher.’ ” The bedroom window “was
equipped with a screen,” which fell out during the incident.

Evans identified no maintenance
problems with the windows when she moved into the apartment. About one year after she moved in, Evans
asked the property manager why there was no protection on the windows, and was
told bars would be a hazard in case of fire.
Evans did not ask for bars to be installed, and “ ‘never thought
about it again really.’ ”

In opposition to KDF’s href="http://www.mcmillanlaw.com/">motion for summary judgment, Evans
submitted the declaration of Brad Avrit, a licensed civil engineer. Avrit opined “the subject window constituted
an unsafe condition that presented a significant danger to human life.” “Given that the screen would fall out with
only minimal application of force, the window in an open position essentially
constituted an inadequately guarded 39-1/2 inch by 58-1/2 inch opening with a
fall height in excess of 80 feet.” He
further opined respondents were in violation of Oakland Municipal Code section
15.04 because it incorporates the California Building Code, including the
requirement buildings must be “ ‘maintained in a safe and sanitary
condition.’ ”

The trial court granted KDF’s motion
for summary judgment, and judgment was entered on December 14, 2010. This timely appeal followed.href="#_ftn2" name="_ftnref2" title="">[2]


>III. Discussion

A. Standard
of Review

Summary judgment is properly granted when no href="http://www.fearnotlaw.com/">triable issue of material fact exists and
the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd.
(c).) A defendant moving for summary
judgment bears the initial burden of showing that a cause of action has no
merit by showing that one or more of its elements cannot be established or that
there is a complete defense. (>Id., subds. (a), (o)(2).) Once the defendant has met that burden, the
burden shifts to the plaintiff “to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto.” (Id.,
subd. (p)(2).) “ ‘There is a triable
issue of material fact if, and only if, the evidence would allow a reasonable
trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.’ ” (Madden
v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, quoting >Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850.) We review the
grant of a summary judgment de novo. (>Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 476.)

B.
The Elements of Negligence

“The threshold element of a cause of
action for negligence is the existence of a duty to use due care toward an
interest of another that enjoys legal protection against href="http://www.mcmillanlaw.com/">unintentional invasion. [Citations.]
Whether this essential prerequisite to a negligence cause of action has
been satisfied in a particular case is a question of law to be resolved by the
court.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) “We are mindful that the concept of duty is ‘ “a shorthand expression of a conclusion,
rather than an aid to analysis in itself,” ’ and constitutes ‘the result of all
the policy considerations leading the law to say that a particular plaintiff is
entitled to protection.’ (5 Witkin,
Summary of Cal. Law (10th ed. 2005) Torts, § 6, p. 49.)” (Lawson
v. Safeway, Inc. (2010) 191 Cal.App.4th 400, 409.)

“In this state, the general rule is
that all persons have a duty to use ordinary care to prevent others from being
injured as the result of their conduct.”
(Randi W. v. Muroc Joint Unified
School Dist. (1997) 14 Cal.4th 1066, 1077 (Randi W.), citing Rowland v.
Christian (1968) 69 Cal.2d 108, 112 (Rowland)href="#_ftn3" name="_ftnref3" title="">[3].) “Everyone is responsible, not only for the
result of his or her willful acts, but also for an injury occasioned to another
by his or her want of ordinary care or skill in the management of his or her
property or person, except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).)

“ ‘Rowland enumerates a number of considerations . . . that have been
taken into account by courts in various contexts to determine whether a
departure from the general rule is appropriate:
“the major [considerations] are the foreseeability of harm to the
plaintiff, the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct, the policy of preventing
future harm, the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for
breach, and the availability, cost, and prevalence of insurance for the risk
involved.” ’ ” (Randi W., supra. 14 Cal.4th at p. 1077, quoting >Rowland, supra, 69 Cal.2d at p. 113, italics omitted.)

“[T]he chief element in determining
whether defendant owes a duty or an obligation to plaintiff is the
foreseeability of the risk . . . .” (>Dillon v. Legg (1968) 68 Cal.2d
728, 740.) However, “a court’s task—in
determining ‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light
of a particular defendant’s conduct,
but rather to evaluate more generally whether the category of negligent conduct
at issue is sufficiently likely to result in the kind of harm experienced that
liability may appropriately be imposed on the negligent party.”> (Ballard
v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6.)

“[C]ourts have repeatedly declared
the existence of a duty by landowners to maintain property in their possession
and control in a reasonably safe condition.”
(Vasquez v. Residential
Investments, Inc. (2004) 118 Cal.App.4th 269, 278; see also >Schlemmer v. Stokes (1941) 47 Cal.App.2d
164, 167.) “[T]raditional tort
principles impose on landlords . . . a duty to exercise due care for the
resident’s safety in those areas under their control.” (Frances
T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499.) “[T]he legal issue of duty should focus on
the specific measures the plaintiff claims the landlord had the duty to
undertake because the efficacy and burdensomeness of any proposed duty can only
be evaluated by examining those specific measures.” (Vasquez
v. Residential Investments, Inc.,
supra, 118 Cal.App.4th at
p. 282, fn. 6)

Evans maintains KDF had a duty to
“adopt[] reasonable precautions to
prevent young children from toppling out of windows,” relying on >Amos v. Alpha Property Management (1999)
73 Cal.App.4th 895, 898 (Amos). In Amos,
a two and a half year-old boy was injured after falling “out of a low, open,
unprotected window in a common passageway on the second floor of his apartment
building.” (Id. at pp. 896-897.) The boy
was being watched by a neighbor who placed him in front of the television and
then went into her kitchen. (>Id. at p. 897) A few minutes later, the neighbor heard
“someone yell a baby had fallen out a window” that was “ ‘always
open’ ” in the hallway. (>Ibid.)
The court held landlords have “ ‘a duty to exercise due care for the
residents’ safety in those areas under their control’ (Frances T. v. Village Green Owners Assn.[, supra,] 42 Cal.3d 490, 499 . . .)” and “that this duty
includes within its scope adopting reasonable
precautions to prevent young children from toppling out of windows in
common areas of the building.” (>Id. at p. 898.)

There is a critical difference
between the circumstances in Amos and
this case: the window from which the
child fell in Amos was in a common
area of the building under the landlord’s control. (Amos,
supra, 73 Cal.App.4th at pp.
897-898.) Amos recognized this distinction in its formulation of the
landlord’s duty as including taking “reasonable
precautions to prevent young children from toppling out of windows in >common areas of the building.” (Ibid.,
second italics added.) >Amos rejected the notion that a landlord
“had a duty to assure no child could fall from an upper story window under any
circumstance” noting “[l]andlords are not insurers of their tenants’ safety
[citation] and are not required to make their premises absolutely ‘child proof’
by providing every possible safeguard against injury to children on their
premises.” (Id. at p. 898, fn. 1, citing Pineda
v. Ennabe (1998) 61 Cal.App.4th 1403, 1405 (Pineda).)

Pineda,
in contrast, involved circumstances similar to those in this case. In Pineda,
a five and a half year-old child was injured after she fell out of a second
story window in her own apartment. (>Pineda, supra, 61 Cal.App.4th at p. 1405.)
The lower edge of the window was 44 inches above the floor, but the
child’s mother “had placed a bed, consisting of a mattress on a box spring,
directly under the window.” (>Ibid.)
“There was another location in the bedroom, away from the window, suitable
for placement of the bed.” (>Ibid.)
The child was bouncing on the bed before the accident “without adult
supervision.” (Ibid.)

In opposing summary judgment, the >Pineda plaintiffs offered expert
testimony that 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 . . . .” (Pineda,
supra, 61 Cal.App.4that p.
1405.)

The Court of Appeal affirmed summary
judgment in favor of the landlord, holding a “landlord has no duty of care to assure that his tenant’s children do not fall
out of ordinary second story windows.” (>Pineda, supra, 61 Cal.App.4th at p.
1405. italics added.) “The purpose for
requiring a duty as a precondition to negligence liability, and for requiring
the court to delineate the boundaries
of the duty, is to avoid the extension of liability to every conceivably
foreseeable accident, without regard to common sense or good policy. Common sense and good policy militate against
requiring landlords to provide a safety net to reduce risks fundamentally
caused by careless parents.” href="#_ftn4"
name="_ftnref4" title="">[4]
(Id. at p. 1409.)

Evans claims Pineda is not controlling because it involved an “ordinary window,”
while in this case “the particular configuration of the window . . . was unsafe
and unreasonably dangerous.”href="#_ftn5"
name="_ftnref5" title="">[5] Nothing in the undisputed facts suggests the
window involved in the accident was anything but the kind of “ordinary” window
involved in Pineda. Both windows were in the bedrooms of the
plaintiffs’ apartments, not in a common area.
(Pineda, supra, 61 Cal.App.4th
at p. 1405.) Both windows had screens
which fell out when the child did. (Ibid.) Both bedrooms were configured in such a way
that the bed did not have to be placed under the window, yet both mothers did
so.href="#_ftn6" name="_ftnref6" title="">[6] (Ibid.) Both windows were large enough for a child to
fall through. (Ibid.) Neither window had
bars or other devices to prevent a child from falling out the open window.href="#_ftn7" name="_ftnref7" title="">[7] (Ibid.)


Foreseeability is the basis of the
distinction between a landlord’s duty regarding windows in common areas over
which the landlord has control as opposed to windows inside a tenant’s
apartment. It is simply not reasonably
foreseeable that a tenant with a small child would place a bed under an
eighth-floor window, raise it to the level of the window with milk crates, open
the window wide enough for a person to fall through, and then fail to ensure
the child was sufficiently supervised that she would not fall out the
window. As in Pineda, KDF had “no duty of care” to assure tenant’s children do
not fall out of ordinary windows in their own apartments, and no duty to
“provide a safety net to reduce risks fundamentally caused by careless
parents.”
href="#_ftn8" name="_ftnref8" title="">[8] (Pineda,
supra, 61 Cal.App.4th at pp. 1405, 1408-1409.)

>IV.
Disposition

The judgment is affirmed.







_________________________

Banke,
J.





We concur:





_________________________

Marchiano, P. J.





_________________________

Margulies, J.

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id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1] Respondents are KDF City
Towers, LP, VPM Management, Inc., Affordable Housing Access, Inc., and KDF
Communities-City Towers, LLC., the owners and managers of the City Towers
Apartments (collectively, KDF).

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[2] Tia’s father, Henry Simmons,
Jr., brought a separate wrongful death action against KDF and others, which was
consolidated with Evans’s lawsuit. KDF’s
motion for summary judgment in regard to his claims was also granted, but he
has not appealed.