Metropolitan News-Enterprise


Wednesday, July 26, 2017


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C.A. Says Argument Was Raised Too Late, but Considers Its Merits

Man Who Got on Diving Board Which Broke Has No Action for Injuries In Falling Into Unfilled Pool—Justices


By a MetNews Staff Writer


A prospective buyer who was injured when he stepped on a diving board at an occupied home, in order to see over the fence, and was injured when the board broke and he fell into an unfilled pool, had no cause of action against the realty company, the Court of Appeal for this district held yesterday.

Div. Six, in an opinion, by Justice Steven Z. Perren, said that the trial judge was right that a new theory of liability could not be raised in opposition to a motion for summary judgment. He went on to express agreement with the judge that the new argument would fail if it had been properly raised.

The opinion affirms summary judgment in favor of defendant Coldwell Banker Residential Brokerage Company, whose agent showed the property to the plaintiff, Jacques Jacobs. The suit was brought on the theory that the diving board was defective.

In opposing Coldwell Banker’s motion for summary judgment, Jacobs mentioned that the action was also brought based on the empty pool constituting a dangerous condition.

Ventura Superior Court Judge Kent Kellegrew said, in granting the motion:

“Plaintiffs cannot rely on their unpled, undisclosed,...theory that Coldwell is liable for failing to remedy, warn, or otherwise protect Jacques from the dangerous condition of the empty pool. Accordingly, Plaintiffs are limited to the theory that Coldwell is liable for failing to correct, warn of, or otherwise protect Jacques from the dangerous condition of the diving board.”

Kellegrew nonetheless addressed the viability of the new theory, saying that Jacobs “voluntarily exposed himself to the dangers posed by the empty pool in order to look over a fence,” adding:

“Simply stated, as a matter of law it was not foreseeable that he 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 “trial court correctly ruled” that a new theory could not be added at the summary judgment stage. But that even if the theory is considered, he said, inasmuch as 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.”

The case is Jacobs v. Coldwell Banker Residential Brokerage, B277832

Brian Hong      of Grassini, Wrinkle & Johnson represented Jacobs. Coldwell Banker’s appellate lawyers were Lisa Perrochet and Joshua C. McDaniel of Horvitz & Levy and Thomas P. Gmelich of Bradley & Gmelich.


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