An obvious point of inquiry is to determine whether or not there have been any prior falls either in that development or in other developments managed by that property manager or owned by that building owner. This, of course, is something that can be inquired into in the course of discovery. You should consider a Freedom of Information Act request to the local EMS services that serve either the development in question or that serve developments owned by that owner or managed by that property manager. Typically, the local EMS service or fire department will comply with such a response and will provide instances of all calls to those developments for a several year period prior to your fall.
Unfortunately, the Uniform Statewide Building Code does not offer a great deal of assistance for a Plaintiff in window falls. There is no specific height requirement for a window as to the height that it must be off the floor. In a recent case that I handled the windows throughout the complex were only 11 inches off the floor. In window falls where the window is a short distance from the floor you may want to look at whether the landlord offers windows that only open from the top so as to prevent a child from ever falling out; window guards that would be affixed inside the apartment so that when the window is open a child would be unlikely to gain access to the opening; the use of window stoppers which could come in several different forms, some of them as simple as a screw on device that would prevent the window from being opened more than a few inches.
You need to fully explore the status of the building vis a vis Federal Regulations. The lease should give some clue as to whether the complex is regulated by the Department of Housing and Urban Development or may be subject to the Low Income Housing Tax Credit Regulations put out by the Internal Revenue Service. The Low Income Housing Tax Credit program is governed by §42 of the Internal Revenue Code and also by the corresponding federal regulations found in 26 CFR §1.42.
26 CFR Section 1.42-5(c)(vi) requires property owners of low income tax credit units to certify annually that the buildings and units in the project are suitable for occupancy taking into account local health, safety and building codes.
You need to review the Uniform Statewide Building Code that was in effect when the building was constructed and in addition review the Property Maintenance Code which in Virginia is now known as the International Property Maintenance Code. Section 301.2 of that code states that A person shall not occupy as owner/occupant or permit another person to occupy premises which are not in a safe or sanitary condition and which do not comply with the requirements of this chapter. If you have a history of prior window falls in the complex or in other complexes owned or managed by the Defendants, then you may be able to bootstrap the application of this particular code section on the issue of safety. Another code section that may some potential application is found in the Virginia Landlord Tenant Act at §55-248.13(A)(4) which requires that the landlord maintain in safe working order all…ventilating…and other facilities and appliances. Section 202 of the Property Maintenance Code defines ventilation as the natural or mechanical process of supplying conditioned or unconditioned air to, or removing such air from, any space. A window is a facility or appliance that allows ventilation. The maintenance of windows would logically be within the embrace of this statutory duty.
The Caudill and Isbell cases may pose special problems . The Defendant no doubt will seek to rely on these cases as a bar to recovery in window falls. Caudill v. Gibson Fuel Co., Inc., 185 Va. 233, 38 S.E.2d 465 (1946) and Isbell v. Commercial Investment Assoc., Inc., 273 Va. 605, 644 S.E.2d 72 (2007)
The avenues to be employed to defeat any Plea in Bar or Motion for Summary Judgment based on Caudill or Isbell has to be focused upon the issue of exclusive possession and control of the window by the plaintiff and/or whether there has been any concealment by the defendant of prior incidents or the propensity of children to fall out these particular windows. The lease and course of conduct is going to govern on the issue of exclusive possession and control of the window. In particular, you need to know who maintains the windows, what control the Defendants maintain over the windows pursuant to the lease, and historically who has done any repairs on the windows. One trial court has dealt with this issue of exclusive control of a door as seen in Jeter v. Ark Properties, 64 Va. Cir. 287, 2004 WL 2848519.
If your child or one you know has been injured as a result of a window fall, contact us.
See windows for a review of Virginia case law on this subject. For more information on premises liability issues related to window falls see the other pages on this site.
For more information on premises liability see the pages on Wikipedia.