Visitor Question

My baby fell through an apartment guardrail that was not up to code…

Submitted By: Phillip (San Marcos, Texas)

This occurred in the State of Texas. On June 19th, 2017 my 17 month old son made his way through an apartment complex guardrail and fell 11 feet onto the concrete surface below. I rushed him to the emergency room where he was then star flighted to the nearest Dell Children’s Hospital. Once there he was diagnosed as having sustained a skull fracture, brain concussion, bleeding in the brain, a spinal compression fracture, and severe ligament strains.

While at the hospital my son underwent several diagnostic tests including X-rays, CT scans, MRI and EEG. He also had to have a breathing tube removed because he was showing signs of respiratory failure. To treat the swelling in his voice box he was injected with steroids.

I have since learned the guardrail openings were almost twice the size of the requirements. The guardrail he fell through was 7 and 3/4″ wide, while the state code requires the guardrails be no more than 4″ wide.

Is the apartment complex owner responsible for my son’s injuries and all his medical bills? It seems to me if the guardrails were up to code, my son would never have been injured.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.


Dear Phillip,

The seriousness of your son’s injuries cry out for legal representation. Based on the facts it appears the complex owner was negligent, and that negligence resulted in your son’s injuries.

The apartment complex owner will very likely refer this matter to his or her premises liability insurance company. While the insurance company may accept liability, you can be confident they will take the position you were wholly, or partially responsible for the injuries.

In so doing, they will rely on Chapter 33 Section 33.001 of the Texas Civil Practice Code.  Otherwise known as the “Texas Proportionate Responsibilities” law, Section 33.001 divides responsibility, or “liability” between both parties.

In effect, the statute says that when it is determined an injured party was partially responsible for the accident, s/he may recover compensation from the at-fault party. However, the amount of compensation paid to the injured party will be diminished proportionate to his or her contribution to the accident. If it is determined the injured party’s contribution to the accidents exceeds 51%, s/he is barred from receiving compensation from the at-fault party.

The insurance company will likely take the position you were wholly at-fault, and that your son would not have fallen through the guardrail if you had been properly supervising him, especially as you were both 11 feet above ground level. The insurance company’s “fall back” position will be their violation of code makes them partially responsible for your son’s injuries, but that your contribution, or “negligence” exceeds 51%, therefore relieving them of liability.

There is just too much to lose in such a serious case. Seek the advice and counsel of several personal injury attorneys in your area. Most injury attorneys will not charge for initial office consultations. You would be ill-advised to attempt to pursue your son’s injury claim on your own.

Learn more here: Building Code Violations

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,


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