No cash windfall after tumble from window

If your child falls out of a window and sustains injuries while playing at a neighbor’s house, you may recover nothing, according to one recent case.

A Worcester mother contacted the woman next door and arranged to go shopping with her.

During the shopping expedition, the mother left her daughter at the neighbor’s home in a three-decker. At the time the mother dropped off the child, the neighbor’s adult daughter was on the third floor and her husband, the neighbor’s son-in-law, was on the second.

While playing hide-and-seek unsupervised on the second floor, the visiting child hid behind curtains covering a window. She sat on a window sill and subsequently fell backward through the window and window screen, landing on the driveway and suffering injuries.

The injured girl‘s father sued the defendant neighbor for damages, claiming that she had negligently maintained the window and screen and also should be held responsible for negligent supervision of his daughter.

A Superior Court judge disagreed, in the case of Asiamah v. Amankwah, finding the father not entitled to recover any damages on his daughter’s behalf.

The judge began by rejecting the plaintiff’s claim that the neighbor was at fault for not installing a lock on the window to prevent it from opening.

“[T]he law does not impose a duty on landowners to prevent windows from opening,” the judge said. And, “[e]ven if the window in question were equipped with a lock, such locks are removable and do not prevent a person from opening a window from the inside.”

The judge also found no merit to the plaintiff’s assertion that the window screen was negligently installed and maintained.

“It has long been accepted,” the judge noted, “that the purpose of a window screen is to keep insects out while allowing ventilation, not to keep children inside. … The plaintiff has not produced evidence that the screen was maintained defectively. On the contrary, the evidence indicates that the screen popped free from the window only after it encountered the full force of the [child]’s weight. Therefore, the court can find no duty on the part of the defendant to prevent the injury that occurred here.”

Finally, the judge gave short shrift to the plaintiff’s claim that the neighbor should be held liable for negligently supervising the child.

First, the judge said, the injured girl’s parents could not rationally argue that they relied on the defendant herself supervising their child when they knew the neighbor was out shopping with the child‘s mother.

In addition, the judge found, the defendant could not be held vicariously responsible for any wrongful lack of supervision by her adult daughter or son-in-law because, in Massachusetts, a defendant “cannot be held liable for the alleged torts of … adult children.”

- Paul Lamoureux

 paul.lamoureux at exhibitAnews.com