NTL member Timothy McMahon settles child death case for $9.5M

legal news for consumersNational Trial Lawyers member Timothy McMahon, along with Mark Sigala and Ben Stoddard of Corsiglia McMahon & Allard, LLP in San Jose, settled a child death case in California for $9.5 million in January 2019. In June of 2016, Plaintiffs Suhas Kulkarni and Chaitali Prabhune moved with their seven-year-old daughter and 18-month-old son Krish to the Water’s Edge Apartment Complex in Foster City, CA. They traveled from the east coast while in the United States on a work visa from India.  They relocated to California because Mr. Kulkarni accepted a position as a senior engineer for Oracle in May 2016.  Their unit was on the third-floor at the end of a common enclosed hallway.  At each end of the hallway were floor-to-ceiling windows with no sill that opened from the bottom. The Kulkarnis had never seen the windows opened. The hallway window was only a few feet from the front door of the Kulkarni’s apartment.During the first few weeks of living at Water’s Edge, their toddler Krish watched a garbage truck picking up trash at the property every week.  He was fascinated by the large trucks and liked to look out the Kulkarni’s apartment patio windows to watch the men work.

On August 11, 2016, just two months after moving into the complex, Krish pointed at the apartment door indicating that he wanted to go outside to look out of the hallway window because he thought a garbage truck was driving by. As noted above, the hallway windows were low-sill, making it easy for young Krish to see outside.  His mother, Chaitali, opened the door to show Krish that there were no garbage trucks that day.  As soon as she opened the door, Krish ran towards the hallway window with his hands outstretched. Unbeknownst to Krish’s mother,  the window was wide open, with only a bug screen separating the interior hallway from the outside.  His mother had no time to react.  As soon as he reached the window, he put his hands against the screen.  It popped out, and Krish fell three stories to the concrete walkway below.  His mother saw the entire tragedy unfold before her eyes. Video footage from emergency first responders who arrived minutes after the fall depicts the inconsolable mother holding onto her baby, crying and pleading for his life.  He was pronounced dead later that evening at a local children’s hospital. The family returned to India a few weeks following his death.

Through extensive written discovery and depositions, plaintiffs’ counsel discovered that the building was originally constructed as an adult-only complex in the 1970s. The apartment complex was not designed for families with children. Sobrato had purchased the complex decades later and commissioned RSS Architecture to design a complete façade remodel of the apartment buildings in 2014-2015.  The design that RSS came up with called for removal of old aluminum low-sill windows in the hallways and replacement with a new set of low-sill windows that also open from the bottom upwards. RSS Architecture and Sobrato hired BKB Construction to complete the remodel.  To remedy the fact that the large low sill windows open from the bottom up, the defendants installed “window safety locks” that functionally limited how far the windows could be opened.  When operated properly, the windows could only be opened three inches.  However, the window lock devices were easily overridden by simply pushing down a tab and lifting the windows up further.  In fact, this feature was designed into the lock mechanics so that if desired, the windows could be opened fully.  On the day of Krish’s death, another tenant had apparently overridden the window safety locks and left the window wide open.  Before that day, the Kulkarni family had never seen the windows opened and had no reason to suspect the windows were dangerous.

Through deposition testimony offered by Woodmont Real Estate’s head of building maintenance, plaintiffs’ counsel established that the property management company knew for months leading up to the death of Krish Kulkarni that tenants of Water’s Edge apartments were regularly overriding the safety locks and leaving the windows wide open in common area hallways due to poor ventilation, trash chutes that were full and backed up, and high temperatures during the summer months.  The open windows exposed young children and pets to the risk of falling from the windows, and Woodmont admitted that it was aware of the danger.  From time to time, they would close the windows if they happened to see them opened beyond the window safety lock’s limit, but did not instruct tenants to stop overriding the window locks. In fact, a Woodmont employee was walking the property the morning of the fall and was looking for open hallway windows to close. Unfortunately, that employee was just minutes late.

Following Krish Kulkarni’s death, the building owners removed the ineffective window locks and replaced them with permanent window locks that could not be opened beyond three inches under any circumstances. Plaintiffs contended that these new permanent window locks were the only safe and reasonable window locks to be used on these windows to prevent death and injury to children.Plaintiffs alleged that RSS Architecture was negligent in selecting replacement windows to have a low-sill that opened from the bottom up, and did not include permanent window limiters. Plaintiffs also alleged that fixed bottom high sill windows could have been used so that window locks would not be necessary.  Plaintiffs alleged that BKB Construction was negligent in installing the windows with that configuration, knowing that safe window design calls for higher sills or increased protection from falls. Throughout litigation these defendants asserted the affirmative defense of “completed and accepted doctrine,” disclaiming any and all liability because the building owner had inspected and accepted their work after completion and was aware of the danger posed to children.  Ultimately the architect and contractor agreed to mediation and settlement before the completed and accepted doctrine defense was tested before the court.Plaintiffs alleged that Woodmont, as the property manager, and Sobrato as the owner were liable for Krish’s death because they were aware of the danger of open windows and were aware that tenants were overriding the window safety locks, but admitted that they did nothing to address the problem beyond closing the windows because they didn’t consider it a “hot button” safety issue. 

Attorneys for the plaintiffs reached a $9,475,000 mediated settlement with Arnold Levinson at ADR Services. The Sobrato Organization, LLC and SI XVII, LLC, the property owner defendants, agreed to pay a total of $4,000,000. Woodmont Real Estate Services, the property manager, agreed to pay a total of $4,000,000.BKB Construction LP and BKB Construction Management LLC, the contractor defendants, agreed to pay a total of $1,000,000. (Underlying policy limits)RSS Architecture Inc agreed to pay a total of $475,000, on a $1,000,000 professional liability policy with declining limits.  In a highly unusual concession at mediation, the Sobrato and Woodmont defendants also agreed to six specific non-monetary terms at the request of the Kulkarni family that relate to tenant safety, window disclosures, warnings,  and prevention of future window fall tragedies.