Premises Liability: Swimming Pools

Posted in Premises Liability on February 25, 2015

Johnson v. Prasad, (Third District, February 25, 2014 | 224 Cal.App.4th 74, 168 Cal.Rptr.3d 196, 14 Cal. Daily Op. Serv. 2064, 2014 Daily Journal D.A.R. 2325

The mother of a four-year-old boy who drowned in the swimming pool of a rented house filed an action for wrongful death against the homeowners. The plaintiff alleged that the child, who had accompanied his father and grandmother to a get-together at the home, had wandered into the pool area when no one was present and had fallen in unseen when his grandmother had returned to the house and failed to close a security gate or the sliding glass door behind her. The plaintiffs further alleged that the homeowners were negligent in failing to install a fence around the perimeter of the pool or a self-closing or self-latching mechanism on the only door leading from the house to the pool.

The trial court granted summary judgment, finding that the defendants had no duty to inspect the premises, in that 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.  The court also found that  there was no evidence that it was more likely than not that the conduct of the homeowners was a cause in fact of the drowning, because the security gate and sliding glass door could not have been involved in this accident, since they were left open on purpose.

However, the court of appeal reversed, holding as a matter of law that the homeowners, who knowingly rented a home with a maintained pool, owed a duty of reasonable care to the four-year-old boy to protect him from drowning in the pool:

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.

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. 925, § 3.5). The statute requires (subject to certain exceptions) that a new or remodeled pool or spa at a private, single-family home be equipped with at least one of seven enumerated drowning prevention safety features. ….  Although these facts make it such that the homeowners were exempt from complying with the statute, the existence of this statute informs the extent of burden to the homeowners and consequences to the community of imposing a duty to exercise care with resulting liability for breach.

By requiring at least one drowning prevention safety feature on newly constructed or remodeled pools and spas in single family homes, the Swimming Pool Safety Act reflects the policy of this state to impose some responsibility on certain homeowners to prevent swimming pool drowning. The extent of the burdens on these homeowners is money and time to add the safety feature or retrofit with the feature. The benefit to the community is saved lives.

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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. Whether a reasonably prudent homeowner were or were not required to add further precautions is not one for us to decide as a matter of law. A jury could conclude a reasonably prudent homeowner should have taken further precautions because it was foreseeable that a child could still access the pool and could drown or be injured. Or it could decide the opposite. Where reasonable minds could differ, it was error for the trial court to decide that question as a matter of law.