Taylor v. Trimble

• Decision Date: 27 July 2017
• Docket Number: B276723
• Court: California Court of Appeals Court of Appeals
• Parties: Jerry TAYLOR, Plaintiff and Appellant, v. Alton TRIMBLE et al. Defendants and Respondents.

13 Cal.App.5th 934

220 Cal.Rptr.3d 741

Jerry TAYLOR, Plaintiff and Appellant,

v.Alton TRIMBLE et al. Defendants and Respondents.

B276723

Court of Appeal, Second District, Division 4, California.

Filed July 27, 2017

Sharifi Firm and Scott Michael Good for Plaintiff and Appellant.

Mark R. Weinder & Associates and Kathryn Albarian, Glendale, 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 responsibility 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.

FACTUAL AND PROCEDURAL BACKGROUND

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

DISCUSSION

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. Respondents did not file a proposed judgment until August 24, 2016. The trial court entered the proposed judgment on August 29, 2016.

Appellant contends we should dismiss the appeal because the notice was filed prior to entry of judgment and refers to the June 8 order rather than the August 29 judgment. We have discretion to treat an appeal from an order granting summary judgment as an appeal filed after the entry of judgment and elect to do so here. ( Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288, 42 Cal.Rptr.3d 563 ( Mukthar ).)⁹

B. Standard of Review

A defendant's "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that [the defendant] is entitled to a judgment as a matter of law." ( Code Civ. Proc., § 437c, subd. (c).) When a defendant moves for summary judgment, " ‘its declarations and evidence must either establish a complete defense to plaintiff's action or demonstrate the absence of an essential element of plaintiff's case. If plaintiff does not counter with opposing declarations showing there are triable issues of fact with respect to that defense or an essential element of its case, the summary judgment must be granted.’ " ( Saldana v. Globe-Weis Systems Co . (1991) 233 Cal.App.3d 1505, 1510-1511, 285 Cal.Rptr. 385, quoting Gray v. America West Airlines, Inc . (1989) 209 Cal.App.3d 76, 81, 256 Cal.Rptr. 877.)

" ‘On appeal from a summary judgment, an appellate court makes "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." ’ " ( DuBeck v. California Physicians' Service (2015) 234 Cal.App.4th 1254, 1264, 184 Cal.Rptr.3d 743.) We consider "all of the evidence the parties offered in connection with the motion (except that which the court properly excluded)...." ( Merrill v. Navegar, Inc . (2001) 26 Cal.4th 465, 476, 110 Cal.Rptr.2d 370, 28 P.3d 116.) The evidence presented by the party opposing summary judgment and the reasonable inferences therefrom are accepted as true. ( Villacres v. ABM Industries, Inc . (2010) 189 Cal.App.4th 562, 575, 117 Cal.Rptr.3d 398.) But it is "not enough [for the opposing party] to produce just some evidence"; the evidence must be "of sufficient quality to allow [a] trier of fact to find the underlying fact in favor the party opposing the motion for summary judgment." ( McGonnell v. Kaiser Gypsum Co . (2002) 98 Cal.App.4th 1098, 1105, 120 Cal.Rptr.2d 23 ; accord, Casey v. Perini Corp . (2012) 206 Cal.App.4th 1222, 1239-1240, 142 Cal.Rptr.3d 678 ; Whitmire v. Ingersoll-Rand Co . (2010) 184 Cal.App.4th 1078, 1093, 109 Cal.Rptr.3d 371.) " ‘ "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." ’ [Citation.]" ( DuBeck v. California Physicians' Service , supra , at p. 1264, 184 Cal.Rptr.3d 743.)

C. Negligent Supervision

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 where the children's parents are present and supervising or expected to be supervising the child. ( Padilla v. Rodas (2008) 160 Cal.App.4th 742, 748-749, 73 Cal.Rptr.3d 114 ( Padilla ), citing Englund v. Englund (1993) 246 Ill.App.3d 468, 615 N.E.2d 861, 186 Ill.Dec. 57, Moses v. Bridgeman (2003) 355 Ark. 460, 139 S.W.3d 503 and Herron v. Hollis (2001) 248 Ga.App. 194, 546 S.E.2d 17.)¹⁰ It is " ‘ "normally ... the duty of a parent or other adult having primary supervisory...