Earlier this year, the Court of Appeal for the Second Appellate District issued a written opinion in a California premises liability lawsuit discussing the rule of appellate procedure that any grounds cited on appeal must have been raised at trial. Ultimately, the court affirmed the lower court’s decision to dismiss the plaintiff’s case based on the fact that the plaintiff’s theory of liability on appeal (which was only slightly different from the theory of liability at trial) was not raised below.
The plaintiff and his wife were looking to buy a rental property and were working with a realtor to help them in their search. The realtor had a home in mind that she thought the plaintiff would like. The home was one that the realtor had previously listed, and it had a pool in the backyard. Prior to listing the home, the realtor conducted a 30-minute visual check of the home, including the backyard and pool. The realtor also arranged for the pool to be emptied and contacted a pool maintenance company to conduct any necessary repairs.
When the plaintiff and his wife went to see the home, the plaintiff climbed atop the diving board that was adjacent to the pool to see over the home’s fence. After about 30 seconds, the plaintiff felt the diving board come loose from its base, and the plaintiff fell into the empty pool, resulting in serious injuries.
The plaintiff filed a premises liability lawsuit against the realtor, arguing that the diving board was not properly maintained. The court granted the realtor’s motion for summary judgment, finding that the realtor had no knowledge of the hazard that caused the plaintiff’s fall and that the realtor did not breach any duty of care that she owed to the plaintiff. The plaintiff appealed.
On appeal, the plaintiff made a slightly different argument. This time, the plaintiff claimed that the swimming pool was a dangerous condition. The court initially explained that the plaintiff’s theory of liability on appeal was not pled below, and therefore, it could not be heard on appeal. The court did, however, note that, even if the theory had been pled below, the plaintiff would still have been unsuccessful. The court explained that the plaintiff did not need to climb atop the diving board to inspect the property, nor was he asked to climb on the diving board by the realtor. Indeed, the home’s listing indicated that there was a pool and advised prospective buyers to “use CAUTION” around the pool.
Have You Been Injured in a Southern California Accident?
If you or a loved one has recently been injured in any kind of slip and fall accident, you may be entitled to monetary compensation through a premises liability claim. The skilled Southern California personal injury attorneys at Sharifi Firm have extensive experience representing clients in a wide range of personal injury cases, and we have a lengthy track record of success. Call 866-422-7222 to schedule a free consultation with a dedicated Southern California personal injury attorney today.
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