Lawsuit moves ahead in boy’s window fall

An Oklahoma family whose 5-year-old son suffered a brain injury after falling from a second-story window at the La Jolla Beach and Tennis Club may take the resort to trial, a state appeals court has ruled.

The ruling by a three-judge panel of the Fourth District Court of Appeal Oct. 31 reversed the summary judgment that a San Diego Superior Court judge entered in favor of the beach club last year, which had effectively ended the lawsuit before it could go to trial.

The case is one of many across the nation that has examined who is at fault when a child falls through a window, and highlights a type of accident that is quite common. An average of 14 children a day — or about 5,000 kids a year — are treated in hospitals for window-related fall injuries in the U.S., according to a 2011 study by the Nationwide Children’s Hospital in Ohio.

Jeff and Nan Lawrence, who live in Enid, Okla., brought their family to the La Jolla resort on Oct. 4, 2008, to celebrate the 6th birthdays of their twin boys, Michael and Luke. The family had requested a first floor room but there were none available when they checked in, so they took one on the second floor, according to court records.

The next morning, the boys’ mother opened one of the windows because she wanted to hear the waves, records say. The twins and their brother were playing, coloring and eating grapes. Their father, a pastor, was on his computer, and their mother was going through papers planning the family’s activities. They heard Luke scream, and Michael was gone. He had fallen out the window, through the screen, onto concrete below.

The boy later testified that he had put his foot on the sill, which was about 25 inches above the floor, and fell when he “leaned forward to see something,” the court documents say.

Michael suffered serious head and brain injuries, says his lawyer, Brian C. Gonzalez.

“If you look at him, you can’t tell he’s had any significant injuries,” Gonzalez said of the boy, now 12. “He speaks a little slowly but he masks his difficulties fairly well. But as far as school, education and learning of any type, he’s fallen off the charts, way behind his twin brother, whereas they were always at least equals before.”

The parents filed a lawsuit against the hotel, and filed a second one on behalf of Michael as his guardians. The suits claim the beach club was negligent in not installing child safety devices on the windows.

A former director of operations at the hotel testified in a deposition that he had decided to install bars on oceanfront room windows because guests were leaning on the windows and pushing out the screens.

A mechanical engineer who examined the room testified that there were bars over two windows in the Lawrences’ room, and on other ocean-facing windows in other rooms, but not on the window Michael fell from, the records state. That window also did not have a safety device that prevented the window from opening all the way.

An expert for the hotel testified in a deposition that the window complied with all building codes, and that screens should never be intended as a safety device. The hotel argued that the responsibility for the children’s safety was on the parents.

Superior Court Judge Randa Trapp sided with the hotel, saying that the building code requirements were met, that the mother opened the window and was nearby but distracted, and that there had been no prior incidents of anyone falling through a window there.

The appeals court disagreed with that reasoning, saying a judge must view the plaintiff’s evidence in the most favorable light when granting summary judgment in a case, and that this case has legitimate legal issues that should be decided by a jury. The appeals judges cited a wide body of case law involving child window falls in coming to their ruling, saying “a landowner similarly shares that duty to ‘protect the young and heedless from themselves and guard them against perils that reasonably could have been foreseen.’”

David Samuels, a Los Angeles-area lawyer for the beach club, said that his clients are “obviously disappointed with the decision.”