Wednesday, February 26, 2014
Court of Appeal Reinstates Child Drowning Claim Against Homeowner
By a MetNews Staff Writer
Homeowners, who rented out their property, owed a duty of care to a child who drowned in their pool, but the property management company that managed the house did not, the Third District Court of Appeal ruled yesterday.
The court, in a partially published opinion by Justice Ronald Robie, reinstated Melina Johnson’s wrongful death claim against Benorad and Brig Prasad. The claim resulted from the drowning of Johnson’s four-year-old son, Allen Soucy.
Robie said the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108— foreseeability of harm, degree of certainty of injury, closeness of causal connection between the injury and the breach of alleged duty, the moral blameworthiness of the conduct, the extent to which imposition of duty would prevent future harm, the burden on the defendant and the community if the duty were imposed, and the cost and availability of insurance—weighed in favor of imposing a duty of care on the homeowners to protect the child from drowning in their pool.
He explained, however, in the unpublished portion of the opinion, that the mother’s suit against Century 21 did not raise any triable issues of fact, where Johnson alleged that the company was negligent in failing to ensure that the premises met safety code requirements prior to renting the property.
“[P]laintiff admits that Century 21 ‘was exempt from compliance’ because Health and Safety Code section 115922 which would have required a drowning prevention device such as a self-closing door or a fence around the pool did not exist at the time the pool was built.”
Section 115922, the Swimming Pool Safety Act, he explained, only applies to the construction of new swimming pools.
In 2000, the Prasads bought a home with an in-ground swimming pool. The pool had been built in 1967 or 1977, and complied with state and local ordinances at that time.
In 2009, Century 21 began managing the home for the Prasads, and the house was subsequently rented. In late June, Soucy’s grandmother, Michelle Volpi, took him to a gathering at the house, where they met the child’s father.
At some point, Soucy went into the backyard of the house, where he was later discovered at the bottom of the pool. He died after spending 19 days on a ventilator.
Johnson sued the child’s grandmother and father, the Prasads as homeowners, and the management company for their negligence.
The trial court granted the Prasads’ motion for summary judgment, explaining that they had no duty to inspect the premises because there was no expectation that children would be playing in the pool.
Robie explained, however, that the trial court ignored the reality of children and pools. He reasoned that where the homeowners knew a pool was included in the rental house, it became foreseeable that people, including children, would use it, such that a duty to the children would exist.
“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…a jury could conclude a reasonably prudent homeowner should have taken further precautions…Or it could decide the opposite.”
The case is Johnson v. Prasad, C0730522.
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