Nature of the Case
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Facts
D owned and managed a six-family apartment building. Children who lived in the apartment, along with other visiting children, regularly used a fence-in and gated area as a playground, even though it was in very poor condition. The area contained discarded home furnishings and appliances, and an abandoned motor vehicle in a state of complete disrepair. Deteriorating concrete sidewalks and retaining walls, with chunks of concrete were lying about, along with piles of construction material, trash, and rocks. Parents of the children playing in this area were concerned because the children would play with the debris, including the broken concrete. D's owner, who also served as the apartment manager, was aware of the condition of this area because a tenant had complained to him about it, and he personally observed the area when he visited the property each month to collect rent money. D made no effort to remove or cordon off the debris so that children playing in the area would not have access to it. Saribel Cruz resided in a third-floor apartment in the building with her ten-year-old son, Luis Cruz (Luis). Olga and Adriana, who is Saribel Cruz' niece, resided in another apartment in the building. Luis and Adriana, along with as many as a dozen other children, all of whom were being watched by several adults, were playing in the backyard. Luis wanted to see if he could break a piece of concrete. He picked up a piece of concrete from the backyard that weighed approximately eighteen pounds, carried it up to his family's third-floor apartment, and dropped it from the window or balcony of that apartment to the ground below. Luis saw his cousin Adriana below and yelled, urging her to get out of the way, but the rock struck her on the head, causing very serious injuries, including a crushed skull, traumatic brain injury, and paralysis on her right side. Adriana had two surgeries and had been hospitalized for nearly two months. Ps sued D. D filed a motion for summary judgment, claiming that, under the circumstances, it did not owe Adriana a duty of care and cannot as a matter of law be held responsible for her injuries. The trial court agreed because a reasonable landlord in D's position, knowing that there were pieces of broken concrete and other debris in the backyard of the apartment building, would not have foreseen that a child would injure another child by 'lugging a [piece of concrete] up to the balcony of the building and pitching [it] off, onto the head of [the other] child . . . .' P appealed. It held that the trial court failed to consider whether the harm suffered was within the general scope of the risk created by D's failure to remove potentially dangerous debris from the backyard and, instead, improperly focused on the specific manner in which the injuries occurred. In its view, the risk of harm created by D's conduct was not, as the trial court had concluded, a child carrying a piece of concrete to a third-floor apartment and dropping it to the backyard below but, rather, that of a child 'getting hurt by a large [piece of concrete] thrown by another child,' conduct that, according to the Appellate Court, a fact finder reasonably could find to be foreseeable. D appealed.
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