Metropolitan News-Enterprise


Tuesday, March 4, 2008


Page 1


Homeowners Had No Duty to Watch Unattended Toddler — C.A.


By a MetNews Staff Writer


Homeowners who had no reason to foresee that the parent of a visiting toddler would leave the child unattended in their backyard cannot be held liable for the child’s drowning death, this district’s Court of Appeal ruled yesterday.

Affirming the decision of Los Angeles Superior Court Judge John P. Farrell, Div. One held that Vilma Lopez and Ismael Rodas did not have a duty to supervise their two-year-old nephew, Eddie, who drowned after falling into their backyard swimming pool, because the child’s mother knew that the homeowners had not taken on such responsibility.

Leslie Padilla, the child’s mother and Vilma Lopez’ sister, was visiting Lopez and Rodas in 2004, when she went inside the house to get her son a glass of water. Rodas had received a telephone call on his cordless phone and walked into the side yard to take the call, and Padilla—who was aware that Rodas had stepped away—asked her son’s cousins, aged 9 and 7, to watch her son and keep him from going into the street while she went inside.

The house had a swimming pool in the backyard which was accessible through two sliding glass doors in the living room, and through a side yard which led from the driveway to the backyard. A six-foot tall iron gate separated the side yard from the backyard, which Padilla alleged was “always open and did not have a lock to properly close,” and Padilla claimed that the pool was accessible through a door “on the left side” of the house and “another one on the right side of the house.” 

Padilla left the front door open when she entered the house, but when she returned about five minutes later, Rodas was still on the phone and standing in the side yard, and she did not see her son. She and Rodas later found him floating facedown in the pool, and the child died at the hospital later that evening.

Padilla filed suit for wrongful death and a survival action for negligence against Lopez and Rodas, alleging that they had “assumed a joint parental duty to supervise” her son while he was on their premises.  She also argued Lopez and Rodas were negligent based on a theory of premise liability because the side yard gate lacked a self-latching mechanism.

The trial court granted summary judgment in favor of Lopez and Rodas, and Padilla appealed, but the Court of Appeal, in an opinion by Justice Robert M. Mallano, sided with the homeowners.

Pointing out that requiring homeowners to anticipate a parent’s negligence and guard against it would “unreasonably burden social and family relationships… [and] would make [homeowners] insurers of their guests’ children’s safety even when the parents are also present on the premises,” Mallano wrote that such a requirement was “beyond all reasonable expectations of both homeowners and their guests.”

Mallano further opined that, even had Lopez and Rodas assumed a joint responsibility of supervision, neither one had engaged in conduct indicating that they had undertaken the responsibility when Padilla went into the house.

“Padilla knew that Rodas had abandoned any supervisory responsibility before she decided to go into the house because she saw him walk to the side yard of the house on the telephone, was aware Rodas was not watching the children when he was in the side yard, and asked her nephews to make sure that Eddie did not run into the street,” he wrote. “Under these circumstances, moral blame cannot attach to Rodas’ conduct…and certainly no moral blame can attach to Lopez, who Padilla knew was not home at the time of the accident.”

Mallano also rejected Padilla’s claim for premises liability, writing that Padilla could not establish causation even if a steel gate near the pool was defective for lack of a self-latching mechanism.

“With the evidence viewed most favorably to Padilla,” he wrote, “she is unable to show that it was more probable than not that a self-latching gate would have prevented Eddie’s drowning.

“The probabilities are evenly balanced as to whether Eddie gained entrance to the pool through the side yard gate, the “door” on the other side of the house, or the sliding glass doors of the house. Accordingly, Padilla cannot establish that Defendants’ failure to provide a self-latching gate was a substantial factor in causing Eddie’s drowning.”

Justices Miriam A. Vogel and Frances Rothschild joined Mallano in his opinion.

The case is Padilla v. Rodas, 08 S.O.S. 1386.


Copyright 2008, Metropolitan News Company