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Taylor v. Trimble

California Court of Appeals, Second District, Fourth Division

July 27, 2017

JERRY TAYLOR, Plaintiff and Appellant,
ALTON TRIMBLE et al. Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. BC570536, Holly J. Fujie, Judge.

          Sharifi Firm and Scott Michael Good for Plaintiff and Appellant.

          Mark R. Weinder & Associates and Kathryn Albarian for Defendants and Respondents.

          MANELLA, J.

         Following the drowning death of his five-year old son, Jaylen, in the swimming pool owned by respondents Alton and Judith Trimble, appellant Jerry Taylor brought suit against respondents for general negligence and premises liability.[1] Finding that respondents owed no duty of care, and that there was no evidence a dangerous condition on their property contributed to the tragedy, the trial court granted summary judgment. Appellant contends he raised issues of fact as to respondents' duty of care and the dangerousness of the conditions in and around the pool. Respondents contend the appeal should be dismissed as it was from the nonappealable order granting summary judgment.

         We exercise our discretion to treat the premature appeal as an appeal from the judgment and address the trial court's decision on the merits. With respect to appellant's claim of negligent supervision, we conclude that where, as here, the homeowner, having initially assumed responsibi-lity for supervision of the child, turned over such responsibility to an adult close relative who accepted it and did not thereafter relinquish it, the homeowner owed no duty of care to protect the child. With respect to appellant's claim of premises liability, we conclude he failed to raise a triable issue of fact as to causation. Accordingly, we affirm.


         In the cause of action for general negligence, the complaint alleged that respondents “failed to supervise and pay adequate attention” to Jaylen. In the cause of action for premises liability, the complaint alleged that respondents “ignored and/or allowed dangerous conditions in and around the swimming pool....”

         Respondents moved for summary judgment. In their statement of undisputed facts (SOF), respondents established that on June 1, 2014, they hosted a gathering at their home. Jaylen came with his mother, Tywanna Sanders. Neither knew how to swim. When Sanders first arrived, Trimble watched Jaylen in the “kiddie” or wading area, separated from the main pool by a low rock wall, eight to nine inches above the main pool water level.[2] When Jaylen's grandfather, Donald Green, a Captain for the Los Angeles City Fire Department, arrived, he told Trimble he would take over supervising Jaylen.[3] Green allowed Jaylen to play in the shallow end of the main pool. At some point, Green lost sight of Jaylen. Green heard a girl scream “‘Where is the little boy?'” Green stood up and saw Jaylen underneath the water. He jumped in and pulled the boy out. Efforts by Green and others to resuscitate Jaylen were unsuccessful.

         In opposition to respondents' motion for summary judgment, appellant presented evidence that respondents had made modifications to the pool in 2013, by changing its surface “from a light to a dark color, ” and adding a Jacuzzi, a waterfall, and the wading area.[4] On the day of the incident, there was nothing separating the shallow portion of the main pool from the deeper end. Respondents did not provide life vests for persons using their pool.

         Appellant did not dispute that upon arriving, Green agreed to watch Jaylen.[5] He presented evidence -- excerpts from Trimble's deposition -- establishing that Trimble told Sanders her son would have to stay in the wading area because he could not swim, and that Trimble advised Green to keep the boy in the wading area. Approximately 30 minutes after Green agreed to watch Jaylen, Trimble saw Green inside the house and was “shocked” because he did not know who was watching Jaylen. Trimble went outside and saw Jaylen riding on the back of an older girl in the deep end of the main pool and three other adults around the pool. The girl and the other adults said Green had approved the girl's actions. Trimble told the girl not to take anyone who could not swim into the deep water and told Green, when he came out of the house, it was “‘not okay.'” Green said “I got it.” Trimble again advised Green to keep Jaylen in the wading area, and said: “This is on you. You got to watch him. He's your responsibility.” Trimble remained concerned about Jaylen, and was “tempted to send him home....”

         Appellant also submitted the declaration of expert Brad Avrit, a civil engineer and expert in civil and safety engineering, human factors and risk management. Avrit asserted that the pool was in an unsafe condition because: (1) the surfacing on the bottom was dark, obscuring the bottom of the pool; (2) respondents failed to have handy lifesaving equipment, such as a pole, rope or life ring; and (3) respondents failed to provide flotation devices for the children swimming in the pool.[6] Avrit further contended that the Jacuzzi, waterfall and slide, all in use on the day of the incident, added to the unsafe condition of the pool by agitating the water, further obscuring the bottom of the pool and making it difficult to hear in the pool area.[7] He opined that had Jaylen been provided “arm flotation devices” or had the bottom of the pool been more visible and the noise minimized, “it is more likely than not that Jaylen Taylor's fatal incident would have been prevented.”

         The court granted the motion for summary judgment. The court found respondents owed no duty of care, because “Green had explicitly undertaken supervision of [Jaylen, ] and Sanders was on the premises.” The court further found that the Avrit declaration “fail[ed] to create a triable issue of material fact regarding whether the pool constituted a dangerous condition, ” and that neither appellant nor cross-complainant “offered evidence showing that any dangerous condition of the pool caused [Jaylen's] death.”[8]


         A. Timing of Appeal

         The order granting summary judgment was filed June 8, 2016. Notice was waived. On August 5, 2016, nearly two months later, appellant filed his notice of appeal. Respon-dents did not file a proposed judgment until August 24, ...

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