[Certified for Partial Publication][*]
APPEAL from a judgment of the Superior Court of
Sacramento County, David Brown, Judge. Reversed in part and affirmed in part.
(Super. Ct. No. 34201000092966CUPOGDS)
Hal F. Seibert, for
Plaintiff and Appellant.
Donahue Davies, James Donahue, Michael E. Myers, Folsom, and Stephen J. Mackey, for Defendants and Respondents.
Did homeowners Benorad and Brig Prasad (homeowners) and property management company Century 21 Real Estate (Century 21) (collectively defendants) owe a duty of care to four-year-old Allen Soucy (a guest of tenants), who drowned in the swimming pool of a house owned by homeowners and rented to tenants? The trial court held " no" in a wrongful death negligence lawsuit brought by the child's mother, plaintiff Melina Johnson. The trial court also found no triable issues of fact with respect to breach of any duty and causation.
We reverse the judgment as to the homeowners. We hold as a matter of law that the homeowners here, 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. We further hold there are triable issues of fact as to whether, one, the homeowners breached that duty by 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 and, two, [168 Cal.Rptr.3d 198] whether any such breach was a substantial factor in bringing about the child's death.
We affirm the judgment as to Century 21. Plaintiff's only allegation in her complaint against the property management company was that it negligently " failed to ensure that the premises met safety code prior to renting the premises to the public." And on appeal, plaintiff admits that defendants were exempt from complying with the only " safety code" anyone has identified because of the time the pool was built.
FACTUAL AND PROCEDURAL BACKGROUND
The homeowners bought a house with an in-ground backyard swimming pool in 2000. The pool was built in 1976 or 1977 and complied with state and local ordinances at that time. The homeowners did not alter the pool. Around the perimeter of the property was a six-foot wooden fence that prevented access to the backyard. The only direct access from the house to the pool was through the kitchen. That access was through a sliding glass door with a security gate over it. The security gate did not have a self-closing mechanism. Since 2009, the house was managed for the homeowners by Century 21.
In June 2009, Tomica Johnson and her son Brandon Johnson (both of whom are unrelated to plaintiff) rented the property.
On June 28, 2009, Allen's grandmother (Michelle Volpi, who was named as a defendant in the trial court) and the grandmother's husband took Allen to a get-together at the house. When they got there, Allen's father (Andre Soucy, who was Volpi's son, and who was also named as a defendant in the trial court) was already there, as were a number of other people, including children. They all went in the pool. Eventually, everyone got out. The grandmother went inside the house and did not close the security gate or the sliding glass door behind her because others were still coming in. Allen also went inside the house. At some point, the grandmother lost track of Allen. As it turns out, Allen had gone outside the house to the backyard. When he was discovered, he was at the bottom of the pool. Allen was kept alive on a ventilator for 19 days and then died.
Allen's mother filed a lawsuit for wrongful death, alleging the grandmother and father were negligent in supervising Allen, the homeowners were negligent in failing to properly fence the pool or otherwise protect a child from accidently falling into the pool, and Century 21 was negligent in " fail[ing] to ...