Barnes v. Blue Haven Pools

Citation81 Cal.Rptr. 444,1 Cal.App.3d 123
CourtCalifornia Court of Appeals
Decision Date22 October 1969
PartiesLee A. BARNES, a minor, by Roy A. Barnes, his guardian ad litem, Plaintiff and Appellant, v. BLUE HAVEN POOLS, a corporation, Defendant and Respondent. Civ. 33546.

Demler, Perona Webster & Langer and Walter D. Webster, Long Beach, for appellant.

Wyman, Bautzer, Finell & Rothman and Alvin M. Cassidy and Robert T. Hanger, Beverly Hills, for respondent.

KAUS, Presiding Justice.

Plaintiff appeals from a summary judgment in defendant's favor.

The complaint alleges that sometime before September 19, 1965, the defendant negligently designed and constructed a private swimming pool and diving board which were thereafter in a dangerous and defective condition; that on September 19 plaintiff, then seventeen years old, struck bottom and injured his spine and central nervous system.

The second cause of action proceeds on a mixed theory of breach of warranty and liability predicated on the theory of Greenman v. Yuba Power Products Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049. Defendant answered and later filed its notice of motion for summary judgment. The evidence adduced in favor of the motion consisted of the following:

1. Excerpts from the deposition of an expert who had been engaged by plaintiff to inspect the pool. In essence he testified that he had inspected the pool but had not reached any conclusion 'in regard to any safety factors.'

2. Certain answers to interrogatories asked of defendant to the effect that the pool complied with the 'standards' of the County of Los Angeles and the city in which it was located.

3. Excerpts from the deposition of a vice president of the defendant. From the corporation's records he determined that the pool in question was a 'No. 98 kidney, one of our template pools.' This is a standard pool sold to a prospective purchaser as such. The witness described the method of selling the pool, of getting a permit from the municipality involved and of installing it.

4. Excerpts from the deposition of plaintiff who testified that he dove off the diving board without testing the depth of the water or knowing such depth and that the board appeared to operate in a normal way.

5. Excerpts from the testimony of plaintiff's father who had used the board on earlier occasions and had noticed nothing unusual. He had also witnessed his son's dive and it appeared normal. He did not know how far forward the plaintiff dove.

6. An excerpt from the deposition of plaintiff's mother who testified that she did not know how far toward the shallow end of the pool her son dove.

7. A declaration by one Maxine Nyssen, a witness to the accident. She had seen the start of plaintiff's dive, but not its execution because she was preoccupied with one of her own children.' Other children had used the diving board without mishap.

8. A declaration by Virgil Fillbach, the owner of the pool, giving certain dimensions and stating that both before and after plaintiff's accident nobody has ever been hurt in the pool. He had witnessed the plaintiff's dive. 'His dive was a long one, prompting his mother to state, 'Boy, he went a long way out.''

9. In addition defendant referred the court to certain answers to interrogatories submitted to the plaintiff which indicate, according to defendant, that plaintiff has 'no witnesses to prove (his) contentions concerning negligence on the part of Blue Haven Pools and that (he was) not aware of any violations at that time.' 1

The papers filed in opposition to the motion for summary judgment do not add much by way of evidence, except an answer by plaintiff, given at the time of his deposition, to the effect that there was nothing unusual about his dive.

The court granted the motion for summary judgment. The judgment pursuant thereto was duly signed and entered on September 14, 1967. On September 8, plaintiff had filed and set for hearing on September 28 a 'Notice of Motion to Reconsider and Vacate Order Granting Summary Judgment.' That notice of motion was accompanied by expert declarations which unquestionably raise a factual issue concerning the negligent design of the pool. That much is virtually conceded by defendant who claims, however, that plaintiff's motion was, in reality, a motion for a new trial and that the trial court was entitled to consider plaintiff's reasons for not presenting the additional declarations at the time of the argument on the motion for summary judgment as insufficient. In view of the conclusion we have reached we need not decide whether defendant is correct.

At a trial of this case plaintiff would have the burden of proving defendant's negligence on his first cause of action and the existence of a defect within the meaning of the Greenman doctrine on the second. We also assume for the sake of this opinion that plaintiff would be unable to survive a motion for a nonsuit without presenting expert testimony on these issues. That being so, plaintiff would not be entitled to go to the jury, if at the time of trial he comes up with nothing better than was before the court in connection with the defendant's motion for summary judgment.

On the other hand the facts presented by the defendant's papers do not negative negligence. A summary judgment in favor of a defendant is proper 'if it is claimed the action has no merit' (Code Civ.Proc., § 437c) and such claim is proved to be correct. There is nothing in the statute which lessens the burden of the moving party simply because at the trial the resisting party would have the burden of proof on the issue on which the summary judgment is sought to be predicated. In such a case, on the motion for summary judgment, the moving party must generally negative the matters which the resisting party would have to prove at the trial. (Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 49--50, 46 Cal.Rptr. 552; McClary v. Concord Avenue Motors, 202 Cal.App.2d 564, 21 Cal.Rptr. 1; Kramer v. Barnes, 212 Cal.App.2d 440, 449, 27 Cal.Rptr. 895.)

There are, of course, cases such as Swope v. Moskovitz, 253 Cal.App.2d 514, 61 Cal.Rptr. 277; Snider v. Snider, 200 Cal.App.2d 741, 19 Cal.Rptr. 709; Schessler v. Keck, 138 Cal.App.2d 663, 292 P.2d 314 and Maltby v. Shook, 131 Cal.App.2d 349, 280 P.2d...

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36 cases
  • Brantley v. Pisaro
    • United States
    • California Court of Appeals
    • February 29, 1996
    ...triable issue of material fact is present. (§ 437c, subd. (o)(2).) The revision of section 437c overruled Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 127, 81 Cal.Rptr. 444, insofar as it held that a defendant seeking a summary judgment was required to " 'negative the matters which t......
  • Biljac Associates v. First Interstate Bank
    • United States
    • California Court of Appeals
    • March 22, 1990
    ...generally negative the matters which the resisting party would have to prove at the trial. [Citations.]" (Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 127, 81 Cal.Rptr. 444; Pena v. W.H. Douthitt Steel & Supply Co. (1986) 179 Cal.App.3d 924, 929, 225 Cal.Rptr. 76; Security Pac. Nat. ......
  • Villa v. McFerren
    • United States
    • California Court of Appeals
    • June 1, 1995
    ...Among the purposes of the 1993 amendment was to legislatively abrogate the line of cases beginning with Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 136-128, 81 Cal.Rptr. 444, that a moving defendant did not sustain her or his burden of proof merely by relying upon a plaintiff's fact......
  • Montrose Chemical Corp. of California v. American Motorists Ins. Co.
    • United States
    • California Court of Appeals
    • January 25, 1993
    ...the insurers' coverage defenses. General summary judgment principles support Travelers' position (see Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 127, 81 Cal.Rptr. 444 ("on the motion for summary judgment, the moving party must generally negative the matters which the resisting part......
  • Request a trial to view additional results
3 books & journal articles
  • Practice Tips and Preliminary Considerations
    • United States
    • James Publishing Practical Law Books Model Interrogatories - Volume 1
    • April 1, 2016
    ...upon which the plaintiff had the burden of proof at trial. ( Id . at 582.) Accordingly, such decisions as Barnes v. Blue Haven Pools, 1 Cal.App.3d 123 (1969), had held that factually devoid interrogatory responses were insufficient to support a summary judgment in favor of the opposing part......
  • Practice Tips and Preliminary Considerations
    • United States
    • James Publishing Practical Law Books Archive Model Interrogatories. Volume 1 - 2014 Contents
    • August 14, 2014
    ...upon which the plaintiff had the burden of proof at trial. ( Id . at 582.) Accordingly, such decisions as Barnes v. Blue Haven Pools, 1 Cal.App.3d 123 (1969), had held that factually devoid interrogatory responses were insufficient to support a summary judgment in favor of the opposing part......
  • Practice Tips and Preliminary Considerations
    • United States
    • James Publishing Practical Law Books Discovery Collection. James' Best Materials - Volume 1 Model Interrogatories
    • April 29, 2015
    ...upon which the plaintiff had the burden of proof at trial. ( Id . at 582.) Accordingly, such decisions as Barnes v. Blue Haven Pools, 1 Cal.App.3d 123 (1969), had held that factually devoid interrogatory responses were insufficient to support a summary judgment in favor of the opposing part......

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