Following the drowning death of his five-year-old son in a swimming pool owned by other homeowners, a father brought suit against the homeowners for general negligence and premises liability. Finding that the homeowners 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. On appeal, the father contended that he raised issues of fact as to the defendants’ duty of care and the dangerousness of the conditions in and around the pool. The California Court of Appeal for the Second District disagreed and affirmed the lower court’s decision.
In their statement of undisputed facts, the defendants established that on June 1, 2014, they hosted a gathering at their home. The boy came with his mother. Neither knew how to swim. When they first arrived, one of the homeowners watched the boy 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. When the boy’s grandfather, a Captain for the Los Angeles City Fire Department, arrived, he told the homeowner he would take over supervising the boy. The grandfather allowed the boy to play in the shallow end of the main pool. At some point, he lost sight of the boy. He heard a girl scream “‘Where is the little boy?’” He stood up and saw the boy underneath the water. He jumped in and pulled the boy out. Efforts by the grandfather and others to resuscitate the boy were unsuccessful.
The appeals court began by outlining the applicable law. Pursuant to California precedent, a defendant is not, by virtue of his or her status as a homeowner, responsible for supervising children who are invited onto his or her property if the children’s parents are present and expected to be supervising the child. It is normally the duty of a parent or another adult having primary supervisory control over the child to see to it that a child would not be going into a place of obvious danger, such as a swimming pool. When, as in the present case, the danger is open and obvious rather than latent or obscure, no greater duty is imposed upon a host of a child under parental supervision than would be owed to the parent. The parents’ failure to properly supervise their child is the proximate cause of a subsequent injury. The host is not negligent because he has performed his duty of keeping the premises as safe for his guest as for his family and himself.
Here, the appeals court explained, the homeowner initially agreed to supervise the boy when the boy and his mother arrived at the party. The issue is whether he was negligent in performing this supervision or was thereafter negligent in delegating such supervision to the boy’s grandfather. The homeowner watched the boy in the wading area until the grandfather arrived and declared he would watch the boy. The homeowner then turned over supervision of the boy to a responsible adult who was not only the boy’s grandfather but also a fireman. The grandfather assured the homeowner he would carefully watch the boy in the shallow end of the main pool.
Thereafter, the homeowner was in and out of the house. The mother saw him inside the house and assumed he had passed on the responsibility of supervising her son to another responsible adult or group of adults. She did not question that decision or suggest it was inappropriate for him to have done so. She had trusted the grandfather to supervise the boy’s pool activities in the past. The appeals court saw no reason why a party who agreed to take on the supervision of a child may not delegate that responsibility to another responsible adult, and it found no basis for imposing liability on the first party for the second party’s potential negligence.
In an attempt to raise an issue of fact concerning negligent supervision, the father pointed to evidence that the homeowner advised the grandfather to keep the boy in the wading area, evidence that the homeowner was “shocked” to see the grandfather inside the house, and evidence that the homeowner contemplated sending the boy home. The fact that an adult responsible for supervising a child has a different view of how to keep the child safe does not require other adults in the vicinity to step in and take control.
Young children, even infants, may safely be taken into adult-sized swimming pools as long as the supervising adult uses due care. The boy could have been safe in the main pool area had the grandfather stayed close and kept his eye on him, as he said he would. Moreover, the homeowner did question the grandfather’s decision to leave the boy in the care of a minor and obtained the grandfather’s assurance that he would not do so again. There was no evidence that the grandfather left his post near the boy after that incident. It was not unreasonable for the homeowner to defer to the grandfather once he agreed to assume supervisory duties, and the fact that the homeowner remained concerned and continued to check on the grandfather and the boy was not evidence of negligence. For these reasons, the appeals court concluded that the trial court did not err in granting summary judgment on the negligent supervision claim.
The appeals court next reviewed the father’s premises liability claim. He based this claim on (1) the homeowners’ resurfacing the pool from “light to dark”; (2) their addition of a Jacuzzi, waterfall, and slide; (3) the lack of a floating rope or other device dividing the shallow end of the main pool from the deep end; and (4) the ease of access from the wading area into the main pool. There was no evidence, the appeals court reasoned, that these factors played a part in the boy’s drowning. There was no evidence that the color of the surfacing prevented anyone from seeing or rescuing the boy. The grandfather testified that the moment he heard the girl ask about the boy, he stood up and saw the child at the bottom of the pool. Similarly, there was no evidence that a floating rope separating the deep and shallow ends of the pool would have prevented his drowning. And since the boy had been placed in the main pool at the time of the tragedy, the minimal separation between the wading area and the main pool was beside the point.
With respect to the Jacuzzi, waterfall, and slide, the court noted that noise and agitated water are normal conditions in and around pool parties, regardless of Jacuzzis, waterfalls, or slides. Guests create noise and agitate the water by swimming and getting in and out of the pool, and it is unreasonable to expect the owners of a pool to impose quiet and calm. Moreover, there is no evidence that noise and ripples in the water from this equipment contributed to the tragedy by obscuring the boy’s struggles or preventing onlookers from hearing him; he may well have slipped under quietly. Close and constant supervision is the only reliable method of keeping young, non-swimming children safe in an adult pool. Absent such supervision, no duty imposed on pool owners would prevent similar tragedies from occurring.
Accordingly, the appeals court concluded the trial court properly granted summary judgment.
The premises liability lawyers at Neumann Law Group represent victims throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.
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