Jacobs v. Coldwell Banker Residential Brokerage Co.
14 Cal. App. 5th 438
| Cal. Ct. App. 5th | 2017Background
- Coldwell Banker listed a vacant, bank-owned Simi Valley house whose backyard had an empty pool with a diving board.
- Coldwell's agent inspected the property (20–30 minutes in backyard) and observed no visible defect in the diving board; Clearflo Pools inspected the pool and reported no concerns about the board.
- MLS listing warned: "please use CAUTION around the empty pool."
- Prospective buyer Jacques (a contractor familiar with pools) stood on the diving-board base to look over a fence; the base collapsed and he fell into the empty pool, sustaining serious injuries.
- Plaintiffs sued for negligence (and derivative loss of consortium). The complaint specifically alleged a defective diving board theory; it did not plead a theory premised on the empty pool.
- Trial court granted Coldwell summary judgment; plaintiffs appealed. Court affirmed, holding (1) plaintiffs could not rely on an unpled empty-pool theory, and (2) even if pled, no duty existed because the empty-pool danger was open-and-obvious and Jacques was not compelled by necessity to encounter it (no foreseeability).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may rely on an empty-pool theory at summary judgment | Plaintiffs argued the empty pool, not just the diving board, was a dangerous condition creating liability | Coldwell argued that the complaint and discovery disclosed only a diving-board defect theory; no notice of empty-pool theory | Court: plaintiffs may not raise an unpled theory at summary judgment; complaint/discovery limited issues to diving board |
| Whether Coldwell had notice of diving-board defect | Plaintiffs did not contest lack of notice in opposition | Coldwell showed agent and pool inspector observed no defect and Jacques saw the board and thought it in good condition | Court: undisputed no actual/constructive notice—summary judgment proper on diving-board theory (plaintiffs did not challenge this ruling) |
| If treated as pleaded, whether owner had duty to warn/abate empty pool hazard | Plaintiffs: owner liable for failing to remedy/warn about empty pool | Coldwell: empty pool was open and obvious; no foreseeability because Jacques was not required or invited to confront the hazard | Court: as a matter of law no duty—danger was obvious and no practical necessity made exposure foreseeable; summary judgment proper |
| Whether trial court abused discretion by considering defendant's reply evidence on empty-pool theory | Plaintiffs argued reply evidence was unfair and should not have been considered | Coldwell said reply was responsive to a new theory and plaintiffs had opportunity to respond but did not | Court: no abuse—plaintiffs had notice and failed to object or seek continuance; consideration of reply evidence proper |
Key Cases Cited
- Rowland v. Christian, 69 Cal.2d 108 (Cal. 1968) (sets Rowland factors for duty analysis)
- Osborn v. Mission Ready Mix, 224 Cal.App.3d 104 (Cal. Ct. App. 1990) (open-and-obvious danger exception when practical necessity requires encountering it)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (summary judgment burden-shifting framework)
- Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666 (Cal. 1993) (foreseeability as a legal question in duty/scope analysis)