FALLING BABIES & LANDLORD LIABILITY (November 2025)

A recent case, Jimenez v. Hayes Apartment Homes, LLC, involved a tragic accident in which two small children, ages 4 and 2, fell out of a second story apartment window where they lived with their mother.  Both children suffered brain injuries, one permanent brain damage.  They sued the landlord and property manager for not installing a fall protection device.  The theories of liability were general negligence, contending that that the absence of a fall protection device breached the landlord’s duty of due care to keep the premises in a safe condition, and negligence per se, contending that the applicable Building Code required the installation of a fall protection device.  Interestingly, the Court of Appeal held that there was no general negligence, but there was negligence per se.  General negligence required that the accident be foreseeable, and foreseeability is typically absent when a dangerous condition is open and obvious, rendering the accident easily avoidable.  The children’s mother closed the window and warned the children to stay away from it, demonstrating that she appreciated the risk (i.e., recognized the need to take, and actually took, precautions that were calculated to avoid the danger and risk of injury).  For this reason and the absence of prior accidents to put the landlord on notice, the court determined that the accident was not foreseeable on the landlord’s part, and, consequently, the landlord was not liable for general negligence.  However, because the Building Code required a fall protection device, the court held that the landlord was liable for negligence per se in having violated the Code.  (Negligence per se involves the violation of a regulation that causes an injury intended to be prevented to a person intended to be protected.)

Landlords should be cautious when small children reside in upper floor units.  Whether the landlord has a duty to provide fall protection devices is fact-specific on a case-by-case basis.  Where the applicable Building Code requires a fall protection device, there will be liability for negligence per se.  Even where the Building Code has no such requirement, any small circumstance can distinguish a particular accident from the one in Jimenez v. Hayes, subjecting a landlord to liability for general negligence.