Tuesday, August 15, 2017
Court of Appeal Orders Publication of Case Affirming Trial Court’s Dictum
By a MetNews Staff Writer
The Court of Appeal for this district yesterday ordered publication of a June 25 opinion in which it found merit to the trial court’s dictum that a real estate company would not be liable to a prospective buyer—who fell into an unfilled pool when he stepped onto a diving board which broke—on a theory that the pool was a “dangerous condition.”
Div. Six of the appeals court agreed, affirming judgment in favor of defendant Coldwell Banker Residential Brokerage Company in an action brought by Jacques Jacobs, who alighted the diving board to see over the fence, then blamed his injuries on the real estate company because the agent failed to warn of the defect in the wood plank or have it remedied.
Ventura Superior Court Judge Kent Kellegrew had held that the defendant had no knowledge, actual or constructive, of the defect in the diving board and therefore breached no duty to Jacobs when it showed the house to him and his wife. He also held that a new theory—dangerous condition of the pool—may not be raised in opposition to a defendant’s motion for summary judgment.
Justice Steven Z. Perren said in the July opinion, which was not certified for publication, that Jacobs, in his opposition to the motion for summary judgment, did not dispute Coldwell Banker’s contention that it had no knowledge of the defect. Kellegrew was correct, he said, that Jacobs could not belatedly raise the new theory of the new theory of dangerous condition—but went to say that the judge was also correct that if properly raised, the theory would not have been sustainable.
Kellegrew opined that would it was not foreseeable that Jacobs “would knowingly embrace an entirely obvious risk by voluntarily using the diving board on an empty pool for a purpose for which it was not intended.” Agreeing, Perren declared that “the “accident was not foreseeable, the court appropriately granted summary judgment on plaintiffs’ theory that Coldwell is liable for failing to protect Jacques [Jacobs] from the dangerous condition of the empty pool.”
Div. Six ordered publication in response to requests from Coldwell Banker’s attorneys, Lisa Perrochet and Joshua McDaniel, and from attorneys Don Willenburg, on behalf of the Association of Defense Counsel of Northern California and Nevada, J. Alan Warfield for the Association of Southern California Defense Counsel, and Jenny Li, representing the California Association of Realtors,
The case is Jacobs v. Coldwell Banker Residential Brokerage, B277832.
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