[CERTIFIED FOR PARTIAL PUBLICATION
Did homeowners Benorad and Brig Prasad (homeowners) and property management company Century 21 Real Estate (Century 21) (collectively defendants) owe a duty of care to four-year-old Allen Soucy (a guest of tenants), who drowned in the swimming pool of a house owned by homeowners and rented to tenants? The trial court held "no" in a wrongful death negligence lawsuit brought by the child's mother, plaintiff Melina Johnson. The trial court also found no triable issues of fact with respect to breach of any duty and causation.
We affirm the judgment as to Century 21. Plaintiff's only allegation in her complaint against the property management company was that it negligently "failed to ensure that the premises met safety code prior to renting the premises to the public." And on appeal, plaintiff admits that defendants were exempt from complying with the only "safety code" anyone has identified because of the time the pool was built.
FACTUAL AND PROCEDURAL BACKGROUND
The homeowners bought a house with an in-ground backyard swimming pool in 2000. The pool was built in 1976 or 1977 and complied with state and local ordinances at that time. The homeowners did not alter the pool. Around the perimeter of the property was a six-foot wooden fence that prevented access to the backyard. The only direct access from the house to the pool was through the kitchen. That access was through a sliding glass door with a security gate over it. The security gate did not have a self-closing mechanism. Since 2009, the house was managed for the homeowners by Century 21.
In June 2009, Tomica Johnson and her son Brandon Johnson (both of whom are unrelated to plaintiff) rented the property.
On June 28, 2009, Allen's grandmother (Michelle Volpi, who was named as a defendant in the trial court) and the grandmother's husband took Allen to a get-together at the house. When they got there, Allen's father (Andre Soucy, who was Volpi's son, and who was also named as a defendant in the trial court) was already there, as were a number of other people, including children. They all went in the pool. Eventually, everyone got out. The grandmother went inside the house and did not close the security gate or the sliding glass door behind her because others were still coming in. Allen also went inside the house. At some point, the grandmother lost track of Allen. As it turns out, Allen had gone outside the house to the backyard. When he was discovered, he was at the bottom of the pool. Allen was kept alive on a ventilator for 19 days and then died.
Allen's mother filed a lawsuit for wrongful death, alleging the grandmother and father were negligent in supervising Allen, the homeowners were negligent in failing to properly fence the pool or otherwise protect a child from accidently falling into the pool, and Century 21 was negligent in "fail[ing] to ensure that the premises met safety code prior to renting the premises to the public."
The trial court granted the summary judgment motion. The court reasoned that homeowners and Century 21 "had no duty to inspect the premises"; "there was no reason to expect children to be playing in the pool"; "the pool was not a `nuisance' or an unreasonably dangerous condition of property"; "nothing these defendants did or failed to do created any type of dangerous condition or in any way contributed to this accident"; there was no evidence that it was more likely than not that the conduct of the homeowners and Century 21 was a cause in fact of the drowning; and "[e]ven the security gate and sliding glass door could not have been involved in this accident, since they were left open on purpose."
The trial court then entered judgment in favor of homeowners and Century 21. Plaintiff timely appealed.
Plaintiff contends the trial court erred in granting summary judgment in defendants' favor because defendants owed a duty of care to maintain the pool in a reasonably safe condition and because there were triable issues of fact as to whether defendants breached that duty and were a cause of injury here.
In doing so, we keep in mind the following standard of review: "On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citation.] Under California's traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)
The Homeowners Owed a Duty of Care to Plaintiff Vis-à-vis Her Son as a Matter of Law
We begin, then, with foreseeability of harm to plaintiff vis-à-vis her four-year-old Allen. In finding no duty, the trial court reasoned, "there was no reason to expect children to be playing in the pool." This conclusion ignored the facts of this case and the realities of pools and children. The lease agreement specifically mentioned maintenance of the pool, assigned that burden to the "landlord," and stated "tenant was to allow access." Thus, the homeowners knew a maintained pool was included with rental of the house. A reasonable expectation was that people, including children, use a maintained pool. It was also a reasonable expectation that children, especially young children, approach pools, regardless of their capacity to swim, thus exposing themselves to the danger of drowning. "It is a matter of common experience that children of tender years are guided in their actions by childish instincts, and are lacking in that discretion which is ordinarily sufficient to enable those of more mature years to appreciate and avoid danger, and in proportion to this lack of judgment on their part, the care which must be observed toward them by others is increased." (Barrett v. Southern Pacific Co. (1891) 91 Cal. 296, 302-303 [27 P. 666].) Where the homeowners knew they were renting out a house with a maintained pool, it was foreseeable that children would be on the property. It was also foreseeable that children would approach the pool, regardless of their capacity to swim, thus exposing themselves to the danger of drowning. Thus, the foreseeability of harm to a young child such as Allen weighed in favor of imposing a duty of care on the homeowners.
We next discuss the other "ordinarily ... crucial consideration" (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213), namely, the "extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach" (Rowland, supra, 69 Cal.2d at p. 113). Although this factor was not discussed by the trial court, the trial court did discuss a statute that we find informs this factor.
In holding that defendants were not negligent per se in failing to fence the pool or install a self-closing or self-latching mechanism on the door, the trial court noted that defendants did not violate the Swimming Pool Safety Act as codified in Health and Safety Code section 115922 (added by Stats. 1996, ch.
This burden and benefit reflected by enactment of the Swimming Pool Safety Act is similar to the way we see things here regarding the "extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach." (Rowland, supra, 69
We next consider the other Rowland factors to see whether they are "determinative of the duty analysis." (Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213.) The remaining factors are "the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm ..., and the availability, cost, and prevalence of insurance for the risk involved." (Rowland, supra, 69 Cal.2d at p. 113.) As even defendants state, "[t]here is no question that the plaintiff suffered injury as her child died as a result of this tragic accident." As to the closeness of connection between the homeowners' conduct and plaintiff's injury, if there was a fence around the perimeter of the pool or a self-closing or self-latching mechanism on the door, Allen may not have been able to access the pool at all. In evaluating the closeness of the connection, we are mindful that there was the added factor that Allen's grandmother and father failed to prevent him from going back outside unsupervised. Still, the opportunity for Allen to drown in the pool may have been diminished had the pool's access been limited by one of the drowning prevention safety features discussed in the trial court. Thus, there was also some degree of moral blame on the homeowners for failing to adequately protect a young child such as Allen from drowning. Finally, considering the last Rowland factor, homeowners insurance is typically available to cover the risk that eventuated here. (See Salinas v. Martin (2008) 166 Cal.App.4th 404, 416 [82 Cal.Rptr.3d 735] [making a similar observation about insurance available to homeowners where a gardener's dog attacked an employee of a contractor who was working at the property owner's house].)
In sum, we have considered all the Rowland factors. In our consideration, all weighed in favor of imposing a duty of care on the homeowners to protect four-year-old Allen from drowning in the swimming pool. The trial court erred in finding the opposite as a matter of law.
There Are Triable Issues of Fact on Whether the Homeowners Breached Their Duty of Care and Whether Their Actions Were a Substantial Factor in Bringing About the Injury
The question to be resolved is whether the homeowners breached the duty of care to Allen by failing to install a fence around the perimeter of the pool or a self-closing or self-latching mechanism on the door. The homeowners argue that since there was a perimeter fence around the property that "w[as] essentially `childproof,'" they cannot be required to add a fence around the perimeter of the swimming pool or locks or latches on the kitchen door leading to the pool.
There Was No Triable Issue of Fact with Respect to the Specific Allegation of Liability in the Complaint Against Century 21
As to the homeowners, the judgment is reversed and the trial court is directed to vacate its order granting the motion for summary judgment and enter a new order denying the motion.
As to Century 21, the judgment is affirmed.
Blease, Acting P. J., and Butz, J., concurred.
Health and Safety Code section 115922 reads in pertinent part as follows: "(a) Commencing January 1, 2007, except as provided in Section 115925, whenever a building permit is issued for construction of a new swimming pool or spa, or any building permit is issued for remodeling of an existing pool or spa, at a private, single-family home, it shall be equipped with at least one of the following seven drowning prevention safety features: [¶] (1) The pool shall be isolated from access to a home by an enclosure.... [¶] (2) The pool shall incorporate removable mesh pool fencing ... in conjunction with a gate that is self-closing and self-latching and can accommodate a key lockable device. [¶] (3) The pool shall be equipped with an approved safety pool cover.... [¶] (4) The residence shall be equipped with exit alarms on those doors providing direct access to the pool. [¶] (5) All doors providing direct access from the home to the swimming pool shall be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor. [¶] (6) Swimming pool alarms that, when placed in pools, will sound upon detection of accidental or unauthorized entrance into the water.... [¶] (7) Other means of protection, if the degree of protection afforded is equal to or greater than that afforded by any of the devices set forth above, and have been independently verified by an approved testing laboratory...."