Opinion
B159231.
7-9-2003
ANNIE GOMEZ, Plaintiff and Appellant, v. INTO FENCING COMPANY, INC., et al. Defendants and Respondents.
Dewitt, Algorri and Algorri for Plaintiff and Appellant. Michael Maguire & Associates, Steven D. Trotter, Steven G. Winder and Paul Kevin Wood for Defendant and Respondent Into Fencing Company, Inc. Early, Maslach & Rudnicki, Priscilla Slocum; Law Offices of Roxanne Huddleston and Roxanne Huddleston for Defendants and Respondents Jesse Ibarra and Robyn Ibarra.
Appellant Annie Gomez appeals from a judgment entered after the trial court granted summary judgment in favor of respondents Jesse and Robyn Ibarra (the Ibarras) and Into Fencing Company, Inc. (IFC). Appellant sued the respondents for negligence after her three-year-old son Anthony drowned in the swimming pool of the house appellant rented from the Ibarras. Partially surrounding the pool was a Protect-A-Child Pool Fence (the PAC fence) manufactured by IFC. We affirm.
CONTENTIONS
Appellant contends that the trial court erred in finding that appellant failed to establish a triable issue of fact on the element of causation as to both IFC and the Ibarras because: (1) appellant introduced evidence that Anthony had climbed over the PAC fence by way of steps; and (2) even if Anthony had climbed over the iron railing instead of walking up the steps, appellant produced sufficient evidence of causation.
FACTS AND PROCEDURAL BACKGROUND
In May 2000, appellant rented a house from the Ibarras for herself and her three children. The Ibarras had installed a pool, railings and a mesh pool fence in the backyard in 1990, but took the pool fence down at some point. The mesh fence contained removable fence poles that fitted into holes in the cement. When she moved in, appellant had IFC reinstall the mesh pool fence, which was 42 inches high, and consisted of tightly woven mesh. However, the mesh pool fence did not completely surround the pool, which was bordered by a cement pool deck. Behind the pool deck, at the back of the pool, was a five-foot tall cement retaining wall, on top of which was a three-foot high wrought iron fence. A cement retaining wall also bordered the right hand side of the pool. The wrought iron fence continued down the side of steps leading to the upper deck, on the left side of the pool. Six decorative steps were between the wrought iron fence and the mesh fence.
On July 26, 2000, appellant and her mother were in the house, sitting at a dining table, while Anthony played in the backyard. They could see and hear him through sliding glass doors that were open. Appellant, who was pregnant, answered a phone call and moved to a couch. Her mother went to the bathroom. When her mother returned, the women realized they did not know where Anthony was, and began to search for him. Appellants mother looked out the sliding glass door into the backyard, then went out to the front yard, and walked down the street. Appellant also looked out the sliding glass door, but did not see anything unusual. Nor did she hear splashes, thuds or shouts. Appellant looked in the front yard, then inside the house and upstairs. When appellants mother returned, appellant went into the backyard and saw Anthony floating in the pool, face down, above his scooter at the end of the pool nearest the decorative steps. She stated that she had to unlatch the pool fence to get to Anthony. Her efforts to revive him were futile.
Appellants father later found Anthonys fingerboard scooter on the pool deck at the end by the decorative steps. Appellant testified that she did not know how Anthony got into the pool, that he had never before climbed the six decorative steps, but that she believed he accessed the pool by way of the decorative steps because the toy fingerboard was found near the pool deck, closest to the side of the steps. Appellant later testified in deposition that she recognized from police photographs a wooden ramp by the pool fence, although she had previously never seen the ramp in that particular location. She also acknowledged in deposition that she needed to always watch her small children because of the pool, and that she never allowed them to climb the decorative steps. Appellant testified that the fence was locked and intact when she found Anthony, and that the deck near where Anthony was found was dry. She stated that she remembered seeing the scooter leaning against the pool fence, inside the pool area, a few days earlier.
Appellant filed a complaint for negligence against the Ibarras and IFC on the theory that the Ibarras negligently placed the PAC fence and wrought iron railing, and that IFC negligently re-erected the PAC fence when it knew that the wrought iron railing left access points to the pool.
Respondents separately brought motions for summary judgment. Appellant attached her declaration and the declaration of Mr. Snapper, a general contractor, to her opposition, which attested that under Consumer Product Safety Commission (CPSC) standards, the American National Standards Institutes (ANSI) Model Barrier Code for Residential Swimming Pools, and the Los Angeles City Code requiring a 60-inch fence, the pool was improperly fenced. The trial court sustained the objections of respondents to Mr. Snappers declaration and to most of appellants declaration.
The Ibarras expert, Carl Sheriff, a licensed safety engineer, building contractor, and certified building inspector, declared that the property complied with all applicable building code requirements, and that the cause of the accident was unrelated to any code violation.
IFCs expert, William Rowley, a mechanical engineer and member of the CPSC and Board of Directors of the National Swimming Pool Foundation, declared that the CPSC literature applies to residents, rather than businesses, and does not apply to IFC. In any event, the CPSC literature sets forth nonauthoritative guidelines that minimize rather than prevent pool drownings. Nor have these guidelines been adopted by the Los Angeles City municipal codes. The ANSI guidelines, which were approved on December 19, 1995, do not apply to mesh fencing installed in 1990. The City of Los Angeles municipal codes apply only to the minimum heights of the perimeter of the "premises" fences. Mr. Rowley opined that assuming Anthony could have accessed the pool by climbing the decorative steps, then he could also have climbed the steps to the upper deck, climbed the 36-inch decorative railing, which provides three footholds at 13, 22 and 28 inches, then dropped down five feet — the same distance Anthony would have dropped if he had climbed the decorative steps. Also, Anthony could have climbed the piping for the Jacuzzi blower, which provides footholds at seven, 21 and 27 1/2 inches, allowing access over the 36-inch railing, with a five-foot drop. Finally, Mr. Rowley stated that the railing along the steps is wide enough for a child to put a foot through the railing and onto the brick decorative steps, to allow him to climb over the decorative railing.
When IFC installed the PAC, the Ibarras signed a letter acknowledging that they would install additional wrought iron fencing along the retaining wall on the left side of the pool, and releasing IFC from any liability as a result of a partial enclosure of the pool area. Moreover, IFC provided materials that stated: "Although we make every effort to provide you with the safest product available, we want to stress the following: [P] THIS FENCE IS NOT A CURE-ALL AGAINST POOL DROWNING AND IS NOT OFFERED AS A SUBSTITUTE FOR ADULT SUPERVISION IN ANY WAY. PLEASE, SUPERVISE YOUR CHILDREN AT ALL TIMES EVEN WHEN SAFETY PRODUCTS ARE IN USE." A follow-up letter also stated: "Although we make every effort to provide you with the safest product available, this fence is not offered as a substitute for adult supervision in any way. Please supervise your children at all times even when safety products are in use. [P] . . . [P] Please do not leave your child unattended so long as he or she may move furniture or toys into a position which may provide for your child to climb over your fence. Please teach your child that playing with your fence is not acceptable."
The trial court granted the motions for summary judgment, concluding that although there were triable issues of material fact regarding the elements of duty and breach, appellant could not established causation, and there was no triable issue of material fact regarding this issue. Relying heavily on Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472 (Leslie G.) and Saelzler v. Advanced Group (2001) 25 Cal.4th 763 (Saelzler), the court found that even assuming the existence of a duty and the breach of that duty, there was no admissible evidence to establish a causal connection between the alleged breach of duty and the injury. The trial court sustained objections filed by the Ibarras, and joined in by IFC, to the declaration of appellant and her expert, Mr. Snapper. Furthermore, the court stated that even if no objection had been made to the Snapper declaration, the declaration of IFCs expert, William Rowley, adequately impeached the evidentiary foundation upon which Mr. Snappers conclusion rested. The trial court determined that Mr. Snappers declaration relied on speculation and that his assumptions were not supported by the record.
This appeal followed.
DISCUSSION
A. Standard of review
Summary judgment is granted if all the submitted papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that an affirmative defense to that cause of action exists. (Code Civ. Proc., § 437c, subd. (n); see Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724.) Once the defendants burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. (Code Civ. Proc., § 437c , subd. (o).) The plaintiff must set forth specific facts showing that a triable issue of material fact exists. (Ibid.)
In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548.) We must determine whether the facts as shown by the parties give rise to a triable issue of material fact. (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.) In making this determination, the moving partys affidavits are strictly construed while those of the opposing party are liberally construed. (Ibid.)
B. Causation
In order to prevail on a cause of action for negligence, the plaintiff must show that the defendants owed him or her a legal duty, that they breached the duty, and that the breach was a proximate or legal cause of his or her injuries. (Saelzler, supra, 25 Cal.4th at p. 767.)
On appeal, all parties focus on the causation issue, and specifically address the two cases cited by the trial court in its ruling. In Leslie G., supra, 43 Cal.App.4th 472, the plaintiff was raped in the garage of her apartment building. She filed a complaint alleging negligence and premises liability against the owners of the apartment building arising from their failure to repair a broken security gate. Division One of this district affirmed the trial courts granting of the defendants motion for summary judgment on the basis that even assuming there was a breach of duty on the part of the defendants, there was no causal connection. The court stated that it was the plaintiffs burden to present evidence showing a triable issue of material fact about how the rapist entered the garage as evidence of causation. Despite the testimony of the plaintiffs expert that the rapist was attracted to the garage because of the broken gate, the court held that the plaintiff cannot recover merely by showing inferences that are consistent with her theories. Instead, she must show that the inferences favorable to her are more reasonable or probable than those against her. (Id. at p. 483.) The court concluded that because there was no direct evidence that the rapist entered or departed through the broken gate, or even that the broken gate was the only way he could have entered or departed, the plaintiff could not survive summary judgment simply because it was possible that he might have entered through the broken gate. (Ibid.) The trial court concluded there was no substantial evidence from which to infer causation and that the plaintiffs expert had merely presented speculation and conjecture. (Id. at pp. 484, 487.) Thus, "[a] possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action." (Id. at p. 487.)
In Saelzler, the plaintiff, a Federal Express employee, was attempting to deliver a package to a resident of an apartment complex. As she returned to her vehicle, three men loitering outside a security gate that had been propped open, beat her, and attempted to rape her. They then fled and were never found. The evidence showed that the apartment complex was located in a high crime area and headquartered a gang that conducted drug transactions and assaulted other people on the premises. Moreover, criminal activity at the complex included the firing of guns, robberies, sexual assaults and rapes. The manager hired security guards to patrol the premises at night, made frequent and regular attempts to repair broken locks or nonfunctioning gates, and on occasion randomly employed full-time, 24-hour security patrols on the premises. Our Supreme Court concluded that the plaintiff failed to show that the defendants failure to keep all gates locked and functioning and failure to provide additional daytime security guards to protect persons such as plaintiff, contributed to her injuries. While the plaintiffs expert speculated that the attack would not have occurred had there been daytime security and a more concerted effort to keep the gates repaired and closed, the court found that the plaintiff had not shown causation. (Saelzler, supra, 25 Cal.4th at pp. 780, 781.) That is, the attackers could have been unauthorized trespassers, but they might also have been tenants. Thus, the experts opinion that functioning security gates or security guards might have prevented the assault was "too tenuous to create a triable issue whether the absence of security guards or functioning gates was a substantial factor in plaintiffs assault." (Id. at p. 781.)
Here, appellant urges that due care in the placement of the wrought iron fence would have prevented Anthonys drowning. Appellant posits two theories as to how Anthony got into the pool area. According to appellant, under the first theory, both IFC and the Ibarras are liable for negligence. Appellant claims that Anthony could have climbed the decorative steps, bridged the gap between the steps and the mesh pool fence, then climbed over the pool fence, and dropped down into the pool area. She asserts that if the Ibarras had properly installed a wrought iron fence on the side of the decorative steps near the pool, rather than between the decorative steps and the steps leading to the upper deck, Anthonys death would not have occurred. She points to a letter from IFC informing the Ibarras that additional wrought iron fencing should be installed "along your retaining wall on left side of pool," as evidence of causation.
We conclude that appellants theory is based on speculation. Appellant cites her deposition testimony that the pool fence was latched when she went into the backyard, and therefore Anthony could only have entered the pool by climbing the steps or pipes. Without identifying any particular steps, she contends that Anthony had been "known to climb steps" and therefore "the route over the decorative steps was very likely," and that Anthony could easily have jumped or dropped over the top of the pool fence and slid down to the pool area. However, the record shows that appellant testified in deposition that Anthony had never climbed the decorative steps, and that she had never allowed any of the children to do so. Appellant also argues that the location near the left side of the pool of Anthonys body, the scooter, and the fingerboard on the deck, tend to support the inference that the fingerboard fell out of his pocket as he dropped or jumped over the pool fence from the steps. The location of the body, however, is not positive evidence that Anthony accessed the pool on the left side. He could have entered the pool area through any other point and walked over to where the scooter lay. Moreover, appellant testified that the deck was dry at the end where the body was found, leading to the inference that he did not enter the pool at that area.
We conclude that appellant has not shown substantial evidence from which to infer causation under her theory of access through the decorative steps.
Appellant contends that IFC, but not the Ibarras, would be exonerated under her second theory that Anthony climbed over the wrought iron railing or Jacuzzi blower pipes from the upper deck, then dropped the remaining five feet to the pool level. However, again, appellant has not shown that this possible cause was more likely than not the cause of the injury. Indeed, in her opening brief she argues that the route via the decorative steps was the most probable means of access, stating: "There is no evidence that Anthony had ever climbed a fence of any kind. To climb this fence, he would have had to use a series of toe holds, including at least one toe hold that was either 13 inches (via the decorative design) or 14 inches (via the Jacuzzi blower pipes) above the one below — half again as big a stretch as the nine-inch pitch of the much broader decorative steps. To clear the fence he would have had to lift his body over it, presumably while looking down at the deck eight feet below, surely a daunting view for most young children. Even if he had done so successfully and put his feet down on the other side of the railing, he would still have had to drop five feet to the cement deck, a drop which common sense suggests is both more daunting and more dangerous — therefore less consistent with Anthonys getting onto his scooter immediately afterwards — than the three and a half-foot or four foot drop from the top of the pool fence."
Appellant has submitted nothing more than speculation as to how Anthony gained access to the pool. We conclude that other methods exist by which Anthony may have gained access to the pool, and that appellant has not shown substantial evidence that it was more probable than not that Anthony got into pool area by her suggested routes. First, there is a possibility that Anthony used some device to climb over the pool fence. A picture taken the day of the accident shows a wooden ramp near the pool fence. The photo also shows a lounge chair on the inside of the pool area, very close to the pool fence. It is possible that Anthony could have used the ramp, along with other climbing aides, to gain access to the pool. Or, as appellant posits, he could have walked up the deck, climbed over the wrought iron fence, and dropped the remaining five feet into the pool area. Likewise, he could have climbed the Jacuzzi pipes over the wrought iron fence. There was, however, no evidence that Anthony sustained bruises or scrapes consistent with falling five feet. Another possibility is that Anthony entered through the pool gate, which may have been left ajar, and closed the gate behind him.
The record does not contain evidence of the dimensions of the wooden ramp. In her reply brief, appellant states that from the photo contained in the record, the ramp "looks to be a scrap of plywood perhaps 30 inches long, 20 inches wide, and an inch or less thick."
On appeal, appellant improperly cites to her declaration, to which the trial court had sustained respondents objections, in urging that the pool fence was clear of any portable climbing aids.
Next, appellant cites Los Angeles County Code sections 11.50.010 and 11.51.010 as support for her argument that the Ibarras failed in their statutory duty to comply with safety regulations, thus establishing negligence per se. First, section 11.050.10 requires a five-foot fence only around the perimeter of the property, which existed here. Section 11.51.010, subdivision 7(c) requires a five-foot barrier fence around a pool, but does not apply, since it was enacted in 1995 and applies only to new or remodeled pools — not to preexisting pools or fencing, as was the case here. Furthermore, the Ibarras expert, Carl Sheriff, opined that the property complied with all applicable building code requirements.
Citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, appellant next urges that the low marginal cost of proper fence placement compared to the potential benefit, supports allowing liberal causal inference. That case does not assist her. There, our Supreme Court determined that evidence of a store owners failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that a dangerous condition was on the floor long enough to give the owner the opportunity to discover and remedy it. (Id. at p. 1203.) That is, a plaintiff may prove that a dangerous condition existed for an unreasonable time with circumstantial evidence. (Id. at p. 1210.) The public policy behind putting a premium on a storekeepers duty to exercise reasonable care to keep the premises reasonably safe, simply does not apply here.
We conclude that appellant did not present triable issues of material fact sufficient to defeat respondents motions for summary judgment.
DISPOSITION
The judgment is affirmed. Respondents shall receive costs on appeal.
We concur: BOREN, P.J., and ASHMANN-GERST, J.