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 Facts of the Case
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.