Padilla v. Rodas

• Decision Date: 29 February 2008
• Docket Number: No. B195284.,B195284.
• Citation: 160 Cal.App.4th 742,73 Cal.Rptr.3d 114
• Court: California Court of Appeals Court of Appeals
• Parties: Leslie PADILLA, Plaintiff and Appellant, v. Ismael Ruano RODAS et al., Defendants and Respondents.

73 Cal.Rptr.3d 114

160 Cal.App.4th 742

Leslie PADILLA, Plaintiff and Appellant, v. Ismael Ruano RODAS et al., Defendants and Respondents.

No. B195284.

Court of Appeal, Second District, Division 1.

February 29, 2008.

Bermeo & Merluza and Ricardo Y. Merluza, Glendale, for Plaintiff and Appellant.

Early, Maslach & Vandueck, James Randall, Los Angeles; Law Office of Priscilla Slocum and Priscilla Slocum, Los Angeles, for Defendants and Respondents.

MALLANO, Acting P.J.

In this case of first impression, a two-year-old child drowned in the backyard pool of the homeowners when his parent left him unattended for about five minutes. The parent brought an action for wrongful death and a survival action for negligence against the homeowners, asserting two theories of liability: negligent supervision and premises liability based on an allegedly defective gate. The trial court granted the homeowners' summary judgment motion on the grounds that (1) they owed no duty, and breached no duty, of supervision, and (2) the parent could not establish that the absence of a self-latching closing mechanism on the gate at one of the entrances to the pool area was a cause of the accident because, it was speculative as to whether the child entered the pool area through the gate or through one of the other points of access to the pool. We agree with the trial court and affirm the judgment.

BACKGROUND

We view the evidence admitted in connection with the summary judgment motion in the light most favorable to the plaintiff as the losing party. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 12 Cal.Rptr.3d 615, 88 P.3d 517.)

Plaintiff Leslie Padilla's son, Eddie, was born in 2002, when Padilla was living with her sister, defendant Vilma Lopez and Lopez's partner, defendant Ismael Rodas (Defendants). Lopez would sometimes baby-sit for Eddie when Padilla was at work. Sometime in 2004, Defendants purchased a home in Granada Hills with a backyard pool. The pool was accessible through two sliding glass doors leading from the living room to the patio and pool area. According to Padilla, the pool was also accessible through a door "on the left side and there is another one on the right side of the house." "[A]n iron gate [led] to the swimming pool area from the driveway, between the side yard and backyard. This iron gate was always open and did not have a lock to properly close." According to Rodas, the gate was six feet high and was not locked. Padilla and Eddie did not live with Defendants at their Granada Hills home, but visited regularly.

Lopez invited Padilla and Eddie to their home on June 27, 2004. They stayed overnight to June 28, the day of the drowning. Before 6:00 p.m. on June 28, Eddie was inside the house with Lopez. Other family members had been swimming in the pool, but Eddie, who did not know how to swim, had not been in the pool that day. Padilla knew that Eddie did not know how to swim. After Lopez left home about 6:00 p.m. to go to work, the only adults at the residence were Padilla and Rodas. About 7:00 p.m., Padilla and Rodas were in the front driveway, watching Eddie play with his cousins, Jason, age 9, and Danny, age 7. Rodas received a telephone call on his cordless telephone and walked to the side yard of the house by the iron gate to take the call. According to Rodas, the gate was "open" at that time. Eddie asked Padilla for a glass of water. Padilla admitted that she knew that when Rodas was in the side yard, he was not watching the children. Padilla asked Jason and Danny to keep an eye on Eddie so he would not go into the street. Padilla went into the house for about five minutes, leaving the front door of the house open. When Padilla returned outside, she did not see Eddie, and Jason and Danny did not know where he was. Rodas was still on the telephone, standing at, and watching, the gate entrance. Padilla asked him where Eddie was, and Rodas told her that he did not know. Both of them began to look for Eddie. Padilla went into the house and through the glass door to the patio and pool area, where she found Eddie facedown in the pool. Padilla pulled him out of the pool. Paramedics took Eddie to the hospital emergency room, where he died later that evening.

Padilla brought suit for wrongful death and a survival action for negligence. Defendants moved for summary judgment on three grounds: (1) they had no duty to supervise Eddie and breached no duty to supervise him; (2) even if the gate did not have a self-latching mechanism as required by City of Los Angeles Municipal Code section 91.6109, Padilla could not establish that the condition of the gate was a cause of the accident; and (3) the action was barred by a release signed by Padilla in connection with her acceptance of $5,000 from Defendants' homeowner's insurer.¹ After two continuances and three hearings, the trial court granted Defendants' motion for summary judgment. Padilla appealed from the judgment.

DISCUSSION

A. Standard of Review

"A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' [Citation.] We review the record and the determination of the trial court de novo. [Citation.]" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003, 4 Cal.Rptr.3d 103, 75 P.3d 30.)

B. Defendants Had No Duty to Supervise Eddie

With respect to the theory of liability based on negligent supervision, Padilla contends that Defendants "assumed a joint parental duty to supervise" Eddie while he was on their premises. We disagree The issue of whether Defendants owed a duty of care to supervise Eddie under the circumstances of this case is a question of law. "Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561 ... [Rowland].) The existence of a duty is not an immutable fact of nature, but rather an expression of policy considerations providing legal protection. Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d 70....) Thus, the existence and scope of a defendant's duty is a question for the court's resolution. [Citation.]" (Shin v. Ahn (2007) 42 Cal.4th 482, 488-489, 64 Cal.Rptr.3d 803, 165 P.3d 581.)

"Some of the considerations that courts have employed in various contexts to determine the existence and scope of duty are: `the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]' (Rowland v. Christian, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)" (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at pp. 472-473, 63 Cal.Rptr.2d 291, 936 P.2d 70.)

The criteria in Rowland militate against the imposition of a duty of supervision on Defendants. It is not reasonably foreseeable that Padilla would leave two-year-old Eddie outside unattended, or under the supervision of other young children, while she went inside the house. It was undisputed that Eddie was being supervised by Padilla when Rodas went to the side of the house to take a telephone call. Assuming for the purpose of argument that Rodas had accented the joint responsibility of supervising Eddie on the day of the accident, Rodas abandoned that undertaking when he left the front yard area to talk on the telephone, leaving Padilla watching Eddie. And Padilla knew that Rodas had abandoned any supervisory responsibility before she decided to go into the house because she saw him walk to the side yard of the house on the telephone, was aware Rodas was not watching the children when he was in the side yard, and asked her nephews to make sure that Eddie did not run into the street. And there is no indication that Rodas knew that Padilla had gone into the house and was no longer supervising Eddie. Under these circumstances, moral blame cannot attach to Rodas's conduct. If no moral blame can attach to Rodas's conduct, then certainly no moral blame can attach to Lopez, who Padilla knew was not home at the time of the accident.

Imposing a duty under the circumstances of this case also would unreasonably burden social and family relationships, requiring homeowners to provide baby-sitting services for their guests' young children when the children's parents also were on the premises. Imposition of such a duty on homeowners would make them insurers of their guests' children's safety even when the parents are also present on the premises, a burden that is beyond all reasonable expectations of both homeowners and their guests. "[Landowners are not insurers of public safety and will have no duty to provide highly burdensome measures of protection absent a showing of a high degree of foreseeability of the particular type of harm...." (Rinehart v. Boys & Girls...