A recent California appellate decision involving two children who fell from a second-story bedroom window offers an important clarification for property owners, managers, and counsel who routinely deal with renovations in older buildings. In Jimenez v. Hayes Apartment Homes, the court drew a firm distinction between general negligence and negligence per se. In doing so, it held that the Building Code's "original materials" exemption does not apply to complete window replacements, and that modern window-safety requirements continue to apply when older buildings undergo alterations.
Background of the Case
The case began as a heartbreaking accident. Blakely Townhomes in Lodi, California was constructed in 1980, and in compliance with the Building Code in effect at the time. When Hayes purchased the property in 2016, the company undertook extensive renovations, including replacing 27 windows with updated, vinyl-framed, energy efficient units. Hayes did not install fall-prevention devices on any upper-floor windows during this work. Shortly after renovations began, the children climbed onto a dresser, reached the open window, and fell. One child sustained catastrophic brain injuries requiring emergency surgery; the other was hospitalized but recovered.
At trial, plaintiff testified that fall-prevention devices were standard in the industry and required by section 1013.8 of the Building Code. They also explained that research in the 1990s had linked child falls from elevated windows to fatal or life-altering injuries, prompting the adoption of the four-inch sphere rule. Hayes did not dispute the absence of fall-prevention devices but insisted that the work fell within section 3404.1.1's "original materials" exemption, which the company argued, excused compliance with updated safety rules during the renovation.
The trial court ultimately granted nonsuit for the defendants on all claims. Plaintiffs appealed, and the appellate court reversed in part and affirmed in part.
General Negligence
On the issue of general negligence, the appellate court affirmed the trial court's holding that the claim could not proceed. Plaintiffs alleged several acts of negligence: the failure to install fall prevention devices despite knowing children lived in the apartment and the worker's failure to intervene after seeing the children standing in the window. Each of these allegations fits within the broad responsibilities of a landlord to maintain and manage the premises. However, even where the landlord's realm of responsibility is clear, a negligence claim cannot succeed without a legally recognized duty of care. Here, the central question was whether defendants owed a duty to prevent the precise chain of events that led to the injury.
Duty in California depends heavily on foreseeability. The appellate court observed that the danger was not hidden. The mother herself recognized it, closed the window, and instructed her children to stay away. When a hazard is apparent to a reasonable adult, courts are less likely to find that a landlord had a duty to anticipate or guard against it. There was also no evidence of previous incidents or complaints suggesting that the landlord was on notice of a recurring problem.
The most significant fact, however, was that the children gained access to the window by climbing onto a dresser- an object located inside a private apartment and entirely beyond the landlord's control. The placement of furniture, and the supervision of children around it, are matters courts have consistently treated as tenant responsibilities. The appellate court relied heavily on Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, where a child fell from a window after climbing onto a bed positioned directly beneath it. The court in Pineda declined to impose a duty on the landlord to install window bars, reasoning that landlords cannot be expected to foresee every configuration of furniture within a tenant's home, nor should they be required to mitigate risks that arise primarily from parental inattention. Requiring such measures, the Pineda court cautioned, would convert landlords into insurers against all possible interior hazards created by tenant behavior.
By contrast, two cases on which plaintiff relied- Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal. App.4th 11 and Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895- featured markedly different circumstances. Lawrence concerned a beachfront hotel room with a sill only twenty- five inches off the floor in a setting where guests routinely opened windows for airflow and where children would predictability play. Amos involved a low sill in a common area routinely left open. In both cases, the hazardous conditions were not tenant-controlled conditions but were instead publicly accessible or common spaces over which the property owner had complete control.
The present case resembled the facts of Pineda far more closely. The hazard arose only because the children climbed onto a dresser, and the landlords could not reasonably have known the interior arrangement or the way an unattended child might behave. For these reasons, the appellate court affirmed the trial court's dismissal as to general negligence. Foreseeability was simply too attenuated to impose a common law duty.
Negligence Per Se: The Building Code Provides Minimum Safety Standard
The negligence per se claim turned on a different analysis. Unlike common law negligence, which depends on foreseeability and policy balancing, negligence per se is grounded in the violation of statutory or regulatory standards that establish a duty of care. Under Lua v. Southern Pacific Transportation Co. (1992) 6 Cal.App.4th 1897, 1901, plaintiffs had to show:
- A regulatory violation
- Causation,
- An injury that the regulation was designed to prevent, and
- Membership within the protected class.
The trial court concluded there was no regulatory violation in Lua because section 303.1.1- the "original materials" exemption, allegedly excused the defendants from complying with the updated safety requirements of section 1013.8. On appeal, the central issue became whether a window qualifies as an "original material."
The appellate court held that it does not. The Building Code distinguishes between "materials," such as concrete, wood, masonry, steel, glass and glazing, and plastics as well as between "assemblies" or "units" such as windows. A window is composed of materials, but it is not itself a material. The Code treats a window as part of a wall system, not as a raw construction substance. Because the replacement of the window constituted an "alteration" of the building rather than simply the replacement of "original materials." The materials, section 3404.1.1 exemption does not apply. The renovation therefore triggered the full requirements of section 1013.8.
This interpretation was reinforced by the Code's stated purpose in sections 1.1.2 and 1.8.1, which emphasize protecting the "health, safety, and general welfare" of occupants. The expert testimony regarding 1990s child-fall studies further supported a reading of the Code that remains faithful to its safety mission. The appellate court rejected defendants' argument that courts cannot "declare public policy," clarifying that the court was not inventing policy but rather using the Code's own purpose provisions to interpret ambiguous text- a well-established interpretative method.
With the exemptions set aside, the evidence was sufficient to represent a negligence per se claim to a jury. The window violated section 1013.8 because it lacked a fall-prevention device; the violation was connected to the fall, the injuries were exactly the type the rule aims to prevent; and the plaintiffs, as child occupants, were plainly in the protected class. The trial court, therefore, erred in granting nonsuit on this claim.
Conclusion and Implications
The appellate court issued a split decision. General negligence failed for lack of duty, but negligence per se survived because the Building Code provided a clear, applicable safety standard.
For property owners and managers, the case underscores the importance of treating the Building Code as a minimum safety floor, not a ceiling. When undertaking alterations, especially involving windows or other building components, compliance with current code provisions is required unless a very specific exemption applies. The decision also reinforces the distinction between hazards created by tenant behavior and those created by building conditions; while the former may not support liability under common law negligence, the latter can create exposure though regulatory violations.
