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Question #1

Paul, aged three years, was badly injured when he fell from a third-floor balcony at the apartment block where he lived with his mother, Deirdre. At the time, Deirdre was semi-conscious as a result of drinking heavily and taking heroin. Before shooting up with heroin, Deirdre opened the sliding door to the balcony of her apartment, so that Paul could play outside in the sunshine. She then left him outside alone. The railing around the balcony did not reach all the way to the floor of the balcony; there was enough space for a child as small as Paul to pass beneath the railing. It is not clear how Paul came to fall. He does not remember exactly what happened, and no-one saw the incident.

The State family services agency had previously taken custody of Paul after neighbors had informed it that he was being neglected and abused by Deirdre. The agency placed Paul with foster parents for six months while Deirdre underwent a substance abuse and detoxification program. After reviewing her case, the agency returned Paul to Deirdre. At that time, it was satisfied that Deirdre’s addictions were under control and that she was capable of looking after her son, something she was passionately keen to do. Paul fell from the balcony one month later. In the period between Paul’s return and the accident, one of Deirdre’s neighbors had contacted the agency, saying, “She’s shooting up again – nothing good is going to come of it”. The agency took no steps to respond, as it only has the resources to respond to reports of actual neglect or abuse.

Deirdre rented the apartment from Downside Apartments, Inc., which owned the whole apartment block. Downside’s agent knew that Deirdre had a three-year old son when she rented the apartment. No warning about the safety of the balcony was given, either by the agent in person, or by signs in the apartment.

After the fall, Paul was taken to the local hospital by a neighbor. Unfortunately, he was not treated immediately, despite the neighbor’s heated requests for action, because the neighbor was not one of Paul’s parents and had no idea about Paul’s medical insurance arrangements. (Deirdre and Paul have no private medical insurance.) The evidence suggests that the delay in treatment at the hospital worsened Paul’s condition.

An action has been brought on Paul’s behalf against the state family services agency, alleging that his injuries were caused by its negligence. No other actions have yet been brought. Advise the agency. (Assume the incident occurred in a state that has not modified the rules of joint and several liability, and which has abandoned the traditional rules of occupier’s liability in favor of a unitary Rowland v. Christian test.)

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