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The Prasads purchased a home with a backyard swimming pool in 2000. The pool was built in 1976 or 1977. It complied with state and local ordinances at the time. (Subsequently, California adopted the Swimming Pool Safety Act which requires a variety of pool safety measures; but it only applies to pools built or remodeled after January 1, 2007) The Prasads did nothing to change the pool. A six-foot fence prevented entry into the backyard. The only access from the house to the pool was through the kitchen. There was a sliding glass door with a security gate over it. The gate did not have a self-closing mechanism.

The property was managed by a Century 21 firm since 2009. In June of 2009 the property was rented. The lease called for the landlords to maintain the pool. The lease provided that the landlords or their service provider would have access for such maintenance purposes.

The tenants had a party on June 28, 2009. Among the guests were Andre Soucy, his four-year old son, Allen, and Allen’s grandmother and grandfather. There were a number of other people, including children.

According to the court record, “They all went in the pool. Eventually, everyone got out. The grandmother went inside the house and did not close the security gate or the sliding glass door behind her because others were still coming in. At some point, the grandmother lost track of Allen. As it turns out, Allen had gone outside the house to the backyard. When he was discovered, he was at the bottom of the pool.”

Allen died. It was a tragic situation, indeed, and one that ultimately turned into a lawsuit. Allen’s mother filed a wrongful death suit alleging the grandmother and father were negligent in supervising Allen, the homeowners (the Prasads) were negligent in failing to properly fence the pool or otherwise protect a child from accidentally falling into the pool, and Century 21 was negligent in failing to ensure that the property met safety code. She did not sue the tenants.

The Prasads and Century 21 moved for summary judgment — essentially, dismissal — which the trial court granted. Among the things the court said, “the pool was not a ‘nuisance’ or an unreasonably dangerous condition of the property”; “nothing these defendants did or failed to do created any type of dangerous condition or in any way contributed to this accident”; there was no evidence that it was more likely than not that the conduct of the [Prasads] and Century 21 was a cause in fact of the drowning; and “even the security gate and sliding door could not have been involved in this action since they were left open on purpose.”

Case decided? No, the plaintiff appealed. And the Appellate Court disagreed with the trial court as to whether or not the landlords owed a duty of care to the child. The court noted that “In determining a duty’s existence and scope” consideration of several factors is called for. The foreseeability of harm and the extent of the burden [to prevent it] “are ordinarily the crucial considerations.

The court reasoned that it was foreseeable to the landlords that children would be on the property and that “children would approach the pool, regardless of their capacity to swim, thus exposing themselves to the danger of drowning.” The foreseeability of harm factor was there.

The Appellate Court also noted that the defendants did not violate the Swimming Pool Safety Act. Nonetheless, the Court also said, “the existence of this statute informs the extent of burden to the homeowners [Prasads] and consequences to the community of imposing a duty to exercise care with resulting liability for breach.” Hence, the court seemed to reason, even though the law did not require that the landlords comply with the act (i.e. adding safety features), its very existence suggests that they might have a duty to do so.

Having established in its own mind that the landlord’s did have a duty of care to the child, the court then turned to the question of whether that duty was breached. That, the Appellate Court said, was a matter for a jury to decide. “A jury could conclude a reasonably prudent homeowner should have taken further precautions because it was foreseeable that a child could still access the pool and could drown or be injured. Or it could decide the opposite. Where reasonable minds could differ, it was error for the trial court to decide that question as a matter of law.”

So, the case against the landlords has been sent back to trial.

As to Century 21, the Appellate Court upheld the trial court’s ruling. Century 21 could not have been negligent in failing to determine that the premises met safety code, because the only safety code at issue exempted those premises. At least that part of the Appellate ruling made sense.