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New York City’s window guard policy: four decades of success
  1. Amita Toprani,
  2. Martha Robinson,
  3. James K Middleton III,
  4. Ali Hamade,
  5. Thomas Merrill
  1. New York City Department of Health and Mental Hygiene, New York City, New York, USA
  1. Correspondence to Dr Amita Toprani, New York City Department of Health and Mental Hygiene, New York City, NY 10013, USA; atoprani{at}health.nyc.gov

Abstract

Background Preventing child falls from windows is easily accomplished by installing inexpensive window-limiting devices but window falls remain a common cause of child injuries. This article describes the history and evolution of the New York City (NYC) window guard rule,which requires building owners to install window guards in apartments housing children aged ≤10 years. The NYC window guard rule was the first directive of its kind in the USA when it was adopted in 1976, and it has led to a dramatic and long-lasting reduction in child window fall-related injuries and deaths.

Methods Data about the history of the window guard rule were obtained by reviewing programmatic records, correspondence, legal decisions and the published literature. In addition, key informant interviews were conducted with programme staff.

Results and Discussion This article describes each stage of policy development, starting with epidemiological studies defining the scope of the problem in the 1960s and pilot-testing of the window guard intervention. We describe the adoption, implementation and enforcement of the rule. In addition, we show how the rule was modified over time and document the rule’s impact on window fall incidence in NYC. We describe litigation that challenged the rule’s constitutionality and discuss the legal arguments used by opponents of the rule. Finally, we discuss criminal and tort liability as drivers of compliance and summarise lessons learnt.

  • fall
  • child
  • policy

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Introduction

Falls from windows are an important cause of injury, disability and death among children. Window falls are of particular concern in urban areas with a high concentration of multistorey buildings because falls from three or more stories are more likely to result in severe injury or death.1 From 1965 to 1969, >200 children in New York City (NYC) died due to falls.2 In 1976, the Board of Health amended the NYC health code to mandate the installation of window guards in apartments housing young children.3 This action was associated with a 96% decrease in child window falls from 1978 to 1980. In this article, we review the history and evolution of NYC’s window guard rule and discuss aspects of the experience that may be instructive for public health practitioners.

Methods

We reviewed relevant NYC Health Department (hereafter, the Department) programme documents, correspondence, legislative records, legal decisions, peer-reviewed publications and newspaper articles to construct a comprehensive history of NYC’s window guard rule. Additionally, we conducted key informant interviews with window guard programme staff. We evaluated the impact of the rule and its successive modifications by reviewing the Department’s window fall surveillance data from 1969 to 2016.

Defining the problem

A study of 201 child fall deaths from 1965 to 1969 conducted by the Department’s Bureau of Vital Statistics showed that fall deaths were seasonally distributed, occurring mainly between May and September, and 123 (61%) of the deaths occurred due to falls from windows. A disproportionate number occurred in low-income neighbourhoods with poor housing quality in parts of the Bronx and Manhattan,2 two of five boroughs of NYC. A study of 55 fatal and non-fatal child falls from >10 feet seen at a Bronx hospital between 1966 and 1968 showed that the majority of victims and all five fatalities were <4 years of age. More than half (55%) of all falls and all of the fatal falls occurred from windows.4

Pilot programme

In May 1972, Charlotte Spiegel, director of the Department’s Window Falls Prevention Programme, initiated a pilot programme with three major components: voluntary window fall reporting, a media and outreach campaign and free distribution of window guards. Window falls were voluntarily reported by 22 police precincts and 16 hospitals in upper Manhattan and the Bronx. A public health nurse conducted home visits in response to each reported fall to determine the circumstances of the fall, provide injury prevention counselling and refer families for window guard installation, immunisations, lead testing and other preventive services.

The Department mounted an outreach campaign entitled ‘Children Can’t Fly’ featuring 10-second television and radio spots with then Health Commissioner Lowell Bellin. Posters and fliers (figure 1) were distributed by district health centres, the NYC Housing Authority, clinics, public schools, tenant groups, faith-based organisations and other community groups. Materials were also distributed door-to-door by Health Department community education teams in Manhattan and the Bronx. Window guards were distributed at street festivals, district health centres and door-to-door in partnership with local organisations including the Visiting Nurse Service. Initially window guards were installed by Health Department Pest Control personnel but, due to high demand, families were later instructed on how to install window guards themselves. The pilot programme was not evaluated empirically but internal programme documents noted that reported window falls decreased from 108 to 64 (41%) in the Bronx from 1973 to 1974.

Figure 1

Children Can’t Fly poster.

Programme expansion

The window guard programme was expanded citywide during 1974–1975. In total, 63 hospitals and 73 police precincts voluntarily reported window falls to the Department and public health nurses continued to provide counselling and referral services. The outreach campaign expanded, using news programming, children’s TV programmes, public service announcements and press releases to maintain public awareness of the issue. Posters and flyers were distributed in several languages. Door-to-door outreach and street demonstrations were also implemented. Approximately 16 000 free window guards were distributed to 4200 families.5 The number of child fall deaths, determined from death certificate data, showed a steady decrease citywide from 57 in 1973 to 37 in 1975.5

Initial rule

After the pilot project’s success, the NYC Board of Health adopted window guard requirements as §131.15 of the Health Code on 12 April 1976. The Board of Health, established in 1866, has the authority to add to or alter the NYC Health Code ‘for security of life and health in the city’.6 The ordinance was the first window guard requirement in the USA. Specifically, it required landlords and owners (hereafter, owners) of buildings occupied by three or more independent households (ie, multiple dwellings) to install Health Department-approved window guards in each apartment where children aged ≤10 years resided and in public hallways, except windows opening on fire escapes. Simultaneously, Health Code §11.03, which specifies conditions that healthcare professionals must report to the Department, was amended to include window falls among children aged ≤16 years in multiple dwellings as a reportable condition. On 12 August 1976, a provision was added to the window guard rule requiring owners to inquire of tenants whether children ≤10 years of age live in each of their housing units on leasing and annually thereafter by registered or certified mail. If a tenant failed to notify the owner that a child lived in their unit, the owner was not obligated to inquire further. Citywide compliance was expected by 1 July 1979.

Implementation and enforcement

The Department supported the rule’s implementation through community outreach, inspections in areas with a high incidence of window falls and response to complaints. The Department issued news releases describing the rationale for the regulation and explaining the new requirements and penalties for non-compliance.i Outreach personnel distributed information to school children, teachers and community groups. In areas with high incidence of window falls, Health Department sanitarians noted window guard violations during routine inspections for issues such as lead hazards and rodent infestation and conducted block-by-block surveys searching for non-compliant buildings. A notice of violation or order to install window guards was issued when approved window guards were absent.

Additionally, the Department received complaints about absence of window guards from tenants and community members. For complaints originating from areas with a high incidence of window falls, owners were sent a letter explaining their legal obligations and notifying them of a scheduled inspection. If approved window guards were not present when the inspection occurred, a notice of violation was issued and a repeat inspection was conducted 3 weeks later. For complaints originating from low-risk areas, owners were sent a letter explaining the new requirements and the penalties for non-compliance. Inspections in low-risk areas were conducted as resources became available. The initial window guard rule was associated with a decrease in reported window falls from 175 to 51 (71%) from 1977 to 1979 (figure 2).

Figure 2

Reported child window falls, New York City, 1973–2016.

Legal challenges

In October 1976, Sorbonne Apartments Company filed a suit in New York Supreme Court claiming that the NYC Board of Health had exceeded its jurisdiction and that the rule imposed an onerous financial burden on property owners. The Court upheld the Board’s authority, citing the NYC Charter and Administrative Code which give the Department ‘power over all matters affecting health and the preservation of life in New York City’6 and the authority to issue orders for ‘the prevention of accidents by which life or health may be endangered’.7 Additionally, the court dismissed the claim of onerous financial burden, stating that the cost of complying did not impose an unconstitutional burden when weighed against the public gain.8

In July 1977, Bryant Realty Corporation moved for a preliminary injunction restraining the Department from enforcing the window guard requirement. Criticising the quality of evidence supporting the mandate, they argued that there was no ‘rational relationship between the installation of window guards and the prevention of window falls’. They also claimed that the measure was unconstitutional because the Board of Health lacked authority to adopt regulations affecting rent-controlled housing. All rent-controlled housing regulations required state legislature or state Department of Housing approval. The court once again upheld the mandate, finding that ‘even without the need for a study, it must be concluded that adequately installed window guards will tend to prevent children from falling out of windows. There is palpably a rational relationship between the requirement of window guards and … the prevention of children from falling from windows. This is all that is required to sustain constitutionality’.9 Additionally, the court found that the Board of Health did not overstep its authority since the purpose of the rule was to promote public safety, not to impact rent regulation.9

Changes to rule

Yearly reported window falls incidence averaged 78 from 1979 to 1983 (range 47–103) (figure 2). For unknown reasons, average incidence increased to 115 during 1984–1986 (range 105–126), prompting several programmatic and legislative changes. In June 1986, the New York City Council enacted Local Law 33 (NYC Administrative Code §17–123) requiring that rental leases advise tenants of owners’ obligations to install window guards and that owners annually deliver notices to all tenants explaining their rights and duties with respect to window guards. The Department, in regulations adopted to support Local Law 33, imposed an affirmative obligation on owners to ascertain whether children aged ≤10 years lived in their housing units. The regulations required that owners inspect apartments for which they did not receive information from a tenant and that they request assistance from the Department when a tenant’s lack of cooperation impeded compliance with window guard requirements.10 An emergency Board of Health resolution adopted 18 July 1986 eliminated the requirement that tenants notify owners in writing when a child aged ≤10 years took up residence. From this point on, a tenant’s failure to notify owners of a child in residence no longer shielded owners from liability. Rather, any owner or other person in charge of a building who failed to install approved window guards in any multiple dwelling unit housing children aged ≤10 years was responsible if a child fell from that unit. Tenants were required to allow access for window guard inspections and prohibited from removing installed window guards.

In August 1986, inspectors from the Department and the NYC Department of Housing Preservation and Development (HPD) began checking for the proper installation of approved window guards during inspections for other health and housing code violations. This change was made because HPD inspectors spend more time in multiple dwelling housing units than Health Department inspectors during their regular duties. HPD referred non-compliant cases to the Department’s window guard programme. On 11 September 1986, the Department adopted rules10 requiring owners to install window guards whenever a tenant requests one even if no child resides in the housing unit. These rules were adopted to protect children in the care of non-custodial parents, relatives or baby sitters and older children and adults who might be incapable of self-protection. Additionally, failure to install or maintain window guards was declared a public nuisance subject to immediate abatement, which authorised the Health Commissioner to issue orders to install window guards without having to serve owners personally in each case.

Criminal and civil liability

Health Code violations are classified as misdemeanours by the NYC Charter and building owners who fail to comply with window guard requirements are subject to criminal prosecution. After the rule was strengthened in 1986, the City intensified enforcement efforts by criminally prosecuting non-compliant building owners. The City refused to entertain plea bargains or offer reduced charges in window guard cases, ensuring that owners experienced meaningful repercussions for non-compliance.11 The heightened enforcement prompted some owners to challenge the requirements. In one 1988 case, building owners claimed the City could not hold them criminally liable without evidence of their intent to cause harm. The court disagreed, finding that strict criminal liability without regard to intent is often applied in rules designed to minimise public health risks. In these situations, risks are present independent of intent and the City could prosecute offenders without proving intent to harm.12

In 1994, the City successfully prosecuted three officers of a housing cooperative’s management board after a child fell from a non-compliant building.13 The officers, who were shareholders and building residents voluntarily serving on the board, disclaimed personal liability because they had contracted a managing agent to handle routine building matters. However, the court allowed the City to pursue criminal charges, recognising that although the board members lacked the sophistication of real estate professionals, they were not exempt from responsibility for complying with the law. A New York Times article quoted one real estate lawyer describing the case as a wake-up call ‘to get us doing what needs to be done’.14

In addition to fines and criminal liability, owners are held liable to tenants through civil proceedings for personal injuries resulting from falls where window guards were absent or defective. In 2002, a child fell from the window of a fourth floor apartment and sustained severe injuries necessitating extensive surgery and rehabilitation. The window guard had been improperly reinstalled by the child’s father after a window-unit air conditioner was removed. The court found that the owner neglected their duty to inspect apartments to ensure proper installation of window guards. The tenant’s family received a settlement of $775 000 for pain and suffering and $2 million, later reduced to $655 000, for medical expenses.15

Programme evolution

The Health Code window guard provisions were amended on 24 October 2007 to enable HPD inspectors to issue orders for window guard installation or repair on behalf of the Health Commissioner. In 2011, the responsibility for routine window guard inspection and enforcement was entirely transferred to HPD. The Department continues to investigate window falls reported by healthcare providers and police precincts. If window guards are absent or improperly installed, the Department issues a commissioner’s order to the building owner to correct the situation and conducts a repeat inspection 2 weeks later. Owners that remain non-compliant are referred to HPD. HPD is authorised through its Emergency Repair Program to install window guards and bill non-compliant owners for the cost of the work. From 2000 to 2016, NYC issued >350 000 window guard violations and HPD installed window guards in response to >55 000 violations where owners remained non-compliant.ii

Outcomes

Annual reported child window falls declined from 217 to 9 and annual window fall deaths decreased from 24 to 2 from 1976 to 2016 (figure 2). Death is a rare outcome (<1%) of child window falls but severe injury is far more common.1 The amounts of severe injury and long-term disability prevented by the window guard rule are not quantifiable. However, a 2005 study showed that window fall injuries occurred in NYC at about half the rate of the rest of New York State despite the much larger number and proportion of high-rise buildings in NYC.16

The steepest decline in incidence occurred immediately following the rule’s adoption (figure 2). Annual reported window falls decreased from 217 to 47 (78%) and annual window fall deaths declined from 24 to 11 (54%) from 1976 to 1980. A second steep decline occurred after the rule was strengthened in 1986: falls decreased from 126 to 44 (65%) and fatalities decreased from 13 to 6 (54%) from 1986 to 1990. After 1990, reported falls continued decreasing gradually. During 2006–2016, there were an average of 11 falls (range 7–16) and one fatality (range 0–5) each year.

Secondary impacts

Since the 1976 adoption of the window guard mandate, several other jurisdictions have enacted window guard requirements. New Jersey’s 1995 window guard law requires multiple dwelling unit owners to install window guards when a tenant with a child aged ≤10 years submits a written request. Minnesota’s 2009 window guard legislation requires fall prevention devices in most apartment windows above the first storey. In 2013, Australia’s Building Code was amended to require fall prevention devices in new early childhood centres and bedrooms of new residential buildings.17 Moreover, window manufacturing and building design have evolved in response to window guard policies. In 1999, the American Society of Testing and Materials (ASTM) developed national window guard standards18 that were informed by NYC’s window guard programme.iii

Discussion

The NYC window guard programme incorporated several of the key factors later described by Dr Thomas Frieden, former director of the Centers for Disease Control and Prevention, as instrumental to successful public health interventions.19 The window guard mandate was an innovative approach to child injury prevention, predating child passenger safety laws (1978) and bicycle helmet laws (1986).20 The programme combined a technical package of synergistic interventions including policy change, monitoring and surveillance, enforcement and criminal and civil liability. Additionally, public communication and effective partnerships among government agencies and community partners were integral to the initiative from its beginnings as a voluntary pilot programme.

Opponents repeatedly challenged the Department’s authority to enact the rule but the rule’s clear intent to promote public health and safety was recognised by the courts. Similarly, the Department’s ability to prosecute non-compliant owners on the basis of strict criminal liability was upheld because of the rule’s public health focus. In one legal challenge, building owners condemned the quality of the evidence collected in the Department’s pilot project. Such tactics are not unusual in suits opposing public health regulations. However, according to the principle of rational basis review in US constitutional law, a rule only needs to bear a rational relationship to a legitimate governmental purpose in order for it to be deemed constitutional. Thus, although supporting evidence for the window guard requirements existed, the rule likely would have survived without the pilot study because putting barriers in windows to prevent falls makes ‘rational sense’.21

The window guard rule leveraged tort and criminal liability as drivers of compliance. A tort claim requires the claimant to establish that he or she suffered injury or loss because the opposing party breached a legal duty to act in a particular fashion. If these elements are established, the offender must pay monetary damages to the claimant. The window guard rule clearly defined legal duties with respect to window guards, rendering non-compliant owners liable to children who are injured. Moreover, the rule imposed strict criminal liability, without regard to intent, on non-compliant owners. For building owners who were not moved to action by the Department’s health messaging efforts, potential tort liability and the threat of criminal prosecution provided additional impetus.

Conclusion

The history of the NYC window guard rule exemplifies how the broad regulatory authority of public health agencies can be invoked to address important health and safety issues, including those not traditionally recognised as determinants of health. While legal challenges to rules can arise, especially if the consequences of non-compliance are high, public health practitioners can consider implementing ‘rational’ policies that promote public health and safety.

What is already known on the subject

  • Child window falls are easily preventable by installing window-limiting devices yet they remain a common cause of child injuries and emergency department visits.

  • Local policies mandating the installation of window guards in homes where children live effectively decreased the incidence of window fall injuries and deaths.

What this study adds

  • This article provides a detailed case study of the first US window guard policy, enacted in New York City in 1976, and documents the impact of changes to the policy over time.

  • We describe the legal arguments that were used to challenge the constitutionality of the window guard rule and discuss why those challenges were unsuccessful.

  • We discuss the effectiveness of tort and criminal liability as drivers of compliance in addition to city government-issued violations and fines.

References

View Abstract

Footnotes

  • i The majority of Health Code violations, including §131.15, are misdemeanours punishable by fines and imprisonment.

  • ii Unpublished data, NYC Department of Housing Preservation and Development.

  • iii Personal communication, ASTM.

  • Contributors All authors made substantial contributions to the conception and design of the study, assisted with critical revisions and gave final approval of the version to be published. AT took primary responsibility for data acquisition, and all authors contributed to data analysis and interpretation.

  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Patient consent Not required.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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