Children Falling and Your Liability

The Davises rented a second-floor apartment with a balcony. One day Mrs. Davis was talking on the phone, not paying as close attention to her two year old daughter as children that age require. After she got off the phone, she went looking for her daughter and found that she had fallen off the balcony. Naturally, she sued the landlord.
Mrs. Lynch’s three year old daughter fell from the window of a third-floor apartment, seriously and permanently injuring her. The window didn’t have stops or guards to keep children from tumbling out windows. Of course, she sued her landlord as well, claiming that because of the lack of protection, the apartment violated the warranty of habitability.
Ever since the passage of the familial status amendment to the Fair Housing Act, landlords have been forbidden from refusing to rent upper-floor apartments to families with children. At the time of the passage of the familial-status amendment, I warned that landlords would be faced with lawsuits because of children falling off high places.
Of course, no one wants to see children hurt. And many landlords have found themselves in trouble with the Fair Housing authorities because they were afraid of what sometimes happens to small children who live on upper floors. But at the same time, the tenants with children wanted the balconies and the views that upper-floor units provide.  And when an applicant is excited about the prospect of having some of the amenities that such a unit provides, he or she tends to ignore some of the obvious dangers to small children.
Shortly after the familial-status amendment went into effect I appeared on a radio talk show and the host asked me about what to do about small children living a score or more feet above the street. I warned that you could not refuse to rent to their parents and that, left unaltered, there would be numerous accidents involving children falling. About the only thing that landlords can do is alter the unit by using window stops or screening on the outside of windows to keep children from falling and fixing balconies so that children cannot climb over or slip through railings.
The host asked me, what if the tenant doesn’t want those modifications because they will spoil the view or the enjoyment of the balcony? That, of course, presents another problem. Conceivably, a landlord could have a Fair Housing complaint filed against him because he insisted on taking measures to protect the children that the parents of the children refused to take. At that point the landlord would need to consult with his or her attorney to have the attorney draw up an agreement that would relieve the liability of the landlord if the child were to fall out a window or off a balcony.
After speaking with lawyers about this problem, I found that there are additional fairly convoluted and arcane legal considerations involving a concept called “public policy.” Those considerations say you cannot do or agree to something that is injurious to the public or in conflict with the moral principles of the time.
How do you protect yourself against lawsuits involving children falling?
First, look at the reasons tenants use to sue landlords when their children fall from balconies and windows. In the two cases cited above, it was for “habitability.” The tenants claimed that the fact that their daughters could fall out of a window and off a balcony showed that the property violated the warranty of habitability.
In the case of the balcony fall, which took place in Virginia, the tenant cited the Virginia Landlord Tenant Law that requires the landlord to comply with applicable building code and make all repairs and do “whatever is necessary to put and keep the premises in a fit and habitable condition.” The Davises, the tenant, cited the width apart of the balusters on the balcony, 5.5 inches, the current building code requirement, 4.25 inches, and the width of their daughter’s head, 5 inches as being proof positive that the property was not “habitable.”
Lynch, whose daughter fell out the window, claimed that the landlord’s failure to fix the window so that it was impossible for her daughter to fall out made the property uninhabitable. Massachusetts, where this case took place, is blessed with a state law that says in part that any condition that “may endanger or materially impair the health or safety and well-being of an occupant . . . is sufficient to violate the warranty of habitability.”
In both these cases the court ruled in favor of the landlord, saying the landlords were not at fault; but it is important to look at why the courts ruled in favor of the landlords to see what you need to do to keep yourself out of trouble.
In the balcony case the landlord won because the tenants could not prove that their daughter had fallen through the balcony rather than climbed over the railing. Had they been able to show that their daughter had fallen through the balusters, there is no telling how the landlord would have fared.
The window case was more definitive in favor of the landlord. The court ruled that not every condition on a property that results in injury necessarily means a violation of the warranty of habitability. The landlord failed to provide a physical facility in the form of protection from falling through a window, but that doesn’t bring it within the scope of the warranty of habitability. In order for that to be true, it would have to be vital to the tenant’s use of the leased premises. The tenant did not claim there was anything wrong with the window except that it didn’t have window stops or a guard.
The moral of these stories is that you need to do safety surveys of your properties, looking for ways that a child could injure him or herself. Installing window stops is cheap and easy, involving nothing more that drilling holes in the window casing for placing dowels or metal pegs.
Balcony safety can be somewhat more expensive and involved. Check local building codes and see if your balconies meet them. If not, what would it take to bring them up to date or at least make it more difficult for a child to fall through balusters or climb over railings.
Stairways can be another source of danger. Make sure that everything, especially handrails, meets code and you remove obvious hazards.
A word of warning
Any repairs or alterations you make your property safer need to be done in a workmanlike manner. Making the alterations and repairs sloppily and having an accident later because of the poor workmanship will get you into more trouble than not doing it at all. Doing the work implies that it will perform as expected. If it fails, you will pay in court.
No landlord wants tenants’ children to be injured in their homes. A survey and some possibly inexpensive fixes could protect children from injury and you from a lawsuit.
Citations: Davis v. Birdneck Village Associates, 4th U.S. Circuit Court of Appeals, Nos. 94-2612 & 94-2613 (1998) Lynch v. James, Appeals Court of Massachusetts, No. 96-P-0917 (1998)