Gray•Duffy Obtains Summary Judgment in Wrongful Death Lawsuit and Recovers Costs for Client

April 2010


Michael S. Eisenbaum obtained summary judgment in favor of the firm’s client in a wrongful death lawsuit where the decedent fell over the third floor railing of the client’s apartment complex. Mr. Eisenbaum proved that his client was not responsible for the death due to the evidence that the railing exceeded all applicable height requirements established by the building code.


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The decedent, Gregory Parker, age 31, had resided at the Ocean Breeze Villas Apartments for approximately 6 years. On October 28, 2006 at approximately 2:05 a.m., while walking with his girlfriend from the elevator exit on the third floor to his apartment, he suddenly went to the railing along the walkway and flipped himself over. He fell three stories and landed on the concrete surface below. He was transported to the hospital where he died about 2 hours later.

The plaintiffs, who are the mother and sister of the decedent, filed their wrongful death complaint on October 22, 2008 in the Orange County Superior Court, alleging that the owner and manager of the apartment complex were negligent in the operation and maintenance of the premises. The plaintiffs sought damages in excess of $5,000,000.

After extensive discovery, including the deposition of Gregory Parker’s girlfriend who was the sole witness, Mr. Eisenbaum filed a motion for summary judgment on the grounds that there was no dangerous or defective condition that caused Mr. Parker to flip over the railing and fall to his death. The plaintiffs’ attorney opposed the motion on the theory that the railing was defective, as it was constructed with the lower horizontal rail, which would enable a person to stand and lean over the railing, and thus a person could easily fall. Therefore, the plaintiffs’ attorney argued, this was an unreasonably dangerous condition.

Mr. Eisenbaum presented evidence that the railing exceeded all applicable height requirements established by the building code, and that the actions of Gregory Parker were not foreseeable. The court, at the hearing of the motion on April 9, 2010, agreed with Mr. Eisenbaum and granted summary judgment in favor of the defendants. The judgment was entered on April 23, 2010, and costs were awarded to Gray•Duffy’s client. The parties then entered into a settlement regarding the costs, wherein plaintiffs paid $1,000 to the defendants.

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.