Where law exempts requirement, may owner who rents out a residence be liable for failure to install self-closing door latch of door leading to swimming pool where minor guest of tenant drowned?

Posted in: Tort Liability by Steven Vartabedian on

In Johnson v. Prasad (filed 2/25/14) 2014 DJDAR 2325, homeowners (the Prasads) bought a home in 2000 which had a 14-year-old pool in the backyard. A six foot fence blocked access to the pool, except from the interior of the home via a kitchen sliding door. That door had a security gate, but lacked a self-closing mechanism. California law requires (since 1996) that new and remodeled pools either be fenced or otherwise have self-closing mechanism at entry points; existing pools are otherwise exempt. (Health & Safety Code section 115922.) In 2009, the residence was occupied by renters, who hosted a party at the home. Among their guests were four-year-old Allen, his father and grandmother. The group left the pool area to go into the house; grandmother left the security door open as others were still coming in. Grandmother lost track of Allen after he went into the house. Unfortunately, Allen went back outside into the pool area unnoticed, and drowned in the pool.

Allen’s mother sued for Allen’s wrongful death; the Prasads were named among other defendants. The Prasads’ motion for summary judgment was granted by the trial court; that court found no triable issues of fact remained with respect to breach of any duty and causation. The Court of Appeal, Third Appellate District, reversed, finding as a matter of law that the homeowners owed a duty of care to protect the child from drowning in the home’s pool, and that there were triable issues of fact as to whether the failure of the owners to install a self-closing mechanism was a substantial factor in casing the child’s death.

In its opinion, the appellate court analyzes policy considerations involved in determining duty and causation in the context of the above-cited Swimming Pool Safety Act. More specifically, it examined the burden and consequence of imposing a duty of care here. The trial court had found that the Prasads were not negligent per se with respect to failing to install a self-closing mechanism as they were exempt from that requirement. But the Court of Appeal sees the statute as having a broader applicability: that the Act reflects a policy of this state to impose some responsibility on certain homeowners to prevent swimming pool drownings; the extent and burden on even exempt homeowners is slight, in the court’s view, when compared with the benefit to the community in saving lives.

Of course, it remains to be seen if the landlord homeowner here is ultimately found liable at trial, and if so, what portion of fault might be attributed to them. Nevertheless, the opinion should serve as a wake-up call to homeowners, both landlords and otherwise, that where they are grandfathered exemption from statutory and code requirements, they are not necessarily protected from liability should a failure to meet such a “requirement” be determined to be a substantial cause of an injury. An additional message also is sent to lawyers and judges: just because a party is not negligent per se based on a statute does not necessarily mean that liability cannot otherwise be established.

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