Case Name: Liam Kim, et al. v. Yong Hee Jang, et al.
Case No.: 1-13-CV-249590

This negligence action arises from minor plaintiff Liam Kim’s (“Liam”) fall out of a second-story window in a residential student housing complex. (Complaint, ¶¶ 8, 17.) The housing complex, Columbae House, is located on the campus of defendant Board of Trustees of the Leland Stanford Junior University (“Stanford”). (Complaint, ¶¶ 8, 17.) Liam fell during a July 30, 2011 visit with family friends whose children were attending a summer youth program operated by defendant Yong Hee Jang dba Global Academy (“Global Academy”) on Stanford’s premises. (Id., ¶¶ 16-17.) As a result of the fall, Liam struck his head on a cement walkway below the window, causing a traumatic brain injury. (Id., ¶ 24.) Plaintiffs Woo Il Kim and Sunhee Kim (the “Kims”), Liam’s parents, were in the room when Liam fell. (Id., ¶ 24.)

On July 17, 2013, Liam and the Kims (collectively, “Plaintiffs”) filed this action for (1) negligence arising from Liam’s injuries and (2) negligent infliction of emotional distress upon the Kims against Stanford and Global Academy (collectively, “Defendants”). Plaintiffs allege that Defendants: (a.) failed to maintain the furnishings in Columbae House in a reasonably safe condition, (b.) allowed a bed to be placed close to an open window, creating an unreasonable risk of harm to visitors, (c.) failed to warn Plaintiffs of the danger presented by the positioning of the bed, (d.) failed to remove the bed from its hazardous position, and (e.) otherwise failed to act with reasonable care. (Complaint, ¶ 17.)

Currently at issue are separate motions for summary judgment by Stanford and Global Academy. Both Defendants move for summary judgment on the ground that they did not owe a duty of care to prevent the type of accident in which Liam was injured.

As an initial matter, while both Defendants characterize the issue presented by their motions as whether they owed a duty to Plaintiffs, it is clear that they owed a duty. “‘[T]he courts have repeatedly declared the existence of a duty by landowners to maintain property in their possession and control in a reasonably safe condition.’ [Citation.] Similarly, a hotel owner or ‘innkeeper’ owes a duty to its guests to maintain the premises in a reasonably safe condition. [Citations.]” (Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 22 (hereinafter, “Lawrence”.) Here, Defendants offer no evidence regarding their possession and control of Columbae House and do not contend that they owed no duty to maintain it in a reasonably safe condition. Thus, as in most premises liability cases, the issue here “is not the existence of [a] duty, but rather the scope of the duty under the particular facts of the case.” (Id. at p. 23.) “A court deciding the issue of the scope of a landlord’s duty ‘should limit its inquiry to the specific action the plaintiff claims the particular landlord had a duty to undertake in the particular case. …’” (Ibid.) Essentially, then, Defendants’ burden is to show that the scope of their duty to Plaintiffs did not encompass ensuring safe placement of the bed from which Liam fell or warning of the bed’s dangerous placement. (See Complaint, ¶ 17.)

“Although the factors to be weighed in determining the scope of a defendant’s duty will vary in each case, the two primary considerations are the foreseeability of the harm and the burden on the defendant of protecting against the harm.” (Lawrence, supra, 231 Cal.App.4th at pp. 23-24.) In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required; on the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. (Id. at p. 24.) Here, Defendants offer no evidence respecting the burden of preventing accidents like Liam’s, and it would seem that the burden of placing beds away from windows through which individuals could fall is small. As to foreseeablity, while Defendants offer evidence that only older children are permitted to enroll in Global Academy, they do not demonstrate that older children would be unlikely to suffer the same accident that Liam did, and, as urged by Plaintiffs, it is foreseeable that families with younger children will visit their older children at Global Academy. Consequently, Defendants have not shown that taking action or providing warnings with respect to the placement of the beds at Columbae House is beyond the scope of their duty to Plaintiffs.

In support of their motions, Defendants rely on the decision in Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1405 (hereinafter, “Pineda”), where it was held that “[a] landlord has no duty of care to assure that his tenant’s children do not fall out of ordinary second story windows.” As urged by Defendants, the facts in Pineda are similar to those presented by this case insofar as the minor plaintiff fell out of a second-story window while playing on a bed placed next to the window. (See ibid.) In Pineda, however, it was the tenant plaintiff’s mother, not the defendant landlord, who was responsible for the placement of the bed. (Id. at p. 1408.) “There was another location in the bedroom, away from the window, suitable for placement of the bed,” the building was “fully in compliance with relevant building codes,” and a screen the landlord had installed in the window “was designed and intended to keep out insects, not to prevent children or others from falling out the window.” (Id. at p. 1405.) In light of these circumstances, the court found that the landlord owed no duty to take preventative measures to keep a child from falling out of the window or to warn tenants of the possibility that this could happen, emphasizing that “the predominant cause of plaintiff’s accident was careless parental placement of a bed under the window, followed by parental negligence in leaving the five-and-a-half-year-old plaintiff unattended and unsupervised.” (Id. at p. 1408.)

Relying on Pineda, Defendants urge that they owed no duty to Plaintiffs because the Kims failed to adequately supervise Liam. However, parents’ negligence in supervising a child is generally not a factor in determining the existence and scope of a duty. (Lawrence v. La Jolla Beach & Tennis Club, Inc., supra, 231 Cal.App.4th at p. 31.) While it may be a factor in determining causation, causation is typically “a question of fact not properly resolved on summary judgment,” and Defendants do not move for summary judgment on this ground. (Ibid.) Thus, although Pineda discussed the plaintiff’s mother’s failure to supervise her while she played on a bed placed in a dangerous position by the mother herself, it is the latter circumstance that supported the court’s holding that the landlord owed no duty. (See Amos v. Alpha Prop. Mgmt. (1999) 73 Cal.App.4th 895, 906 (hereinafter, “Amos”) [“In Pineda, we held the landlord could not be expected to reasonably foresee the parent of a five-year-old child would put what amounted to a trampoline in front of a second story apartment window and allow the child to bounce on it unsupervised.”].) A case such as this one, where it is reasonably foreseeable that a child of any age could fall off of a bed through an adjacent window, “is not the kind of case in which negligent supervision, if any, affected the landlord’s duty of care.” (Amos, supra, 73 Cal.App.4th at p. 906.)

The holdings of Lawrence and Amos, which are also discussed at length by the parties, support the conclusion that Defendants owed a duty here. In Lawrence, 5-year-old Michael Lawrence fell from a window in his family’s second-story hotel room. (Lawrence, supra, 231 Cal.App.4th at p. 16.) The court held that, regardless of whether Michael’s parents had failed to supervise him, defendants owed a duty respecting the design and condition of the window from which Michael fell, particularly given the greater control exercised by the hotel than a typical landlord. (Id. at pp. 24, 30.) In Amos, the court found a landlord owed a duty of care as to a low, open window in a common passageway of an apartment building, although “house rules” provided that children were not allowed to play in the hallway. (Amos, supra, 73 Cal.App.4th at pp. 896-897.) The court emphasized the distinction between cases where the condition that caused the accident was within a landlord’s control, and cases where parents had created a dangerous condition by, for example, the placement of furniture. (Id. at p. 906.) Here, as in these cases, any negligent supervision of Liam did not impact Defendants’ duty of care, given that the condition that led to his accident was not created by Plaintiffs.

Finally, in addition to evidence regarding the Kims’ asserted failure to supervise Liam, Defendants offer their expert’s testimony that the placement of the bed did not violate any building codes, and evidence that no similar incidents had been reported to Stanford in the past. However, these factors are not dispositive on the issue of duty and were also present in Lawrence, where the court found that the defendant had not met its burden on summary judgment under circumstances very similar to those present here. (See Lawrence, supra, 231 Cal.App.4th at pp. 31-32.)

Defendants’ objections to evidence submitted in report of their respective reply briefs are consequently MOOT.

In light of the above, Defendants have failed to meet their initial burden to negate the duty element of Plaintiffs’ claims, and Defendants’ motions are DENIED.