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The Morrison Law Journal
August 2017
Volume XII, Edition 8

A Win For The Defense In Personal Injury Litigation: Court Rules That Injury Resulting
From Collapse Of Diving Board In Empty Pool Was Not Reasonably Foreseeable

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

Although the residential real estate market in Southern California is generally strong, the marketing for sale of vacant, bank owned properties is still a consideration. But what if the property, bank owned, and unoccupied, has, for example, an empty swimming pool which might, for example, present a danger to persons who may be visiting the property for a potential purchase? In that regard, can the persons marketing the property be liable for the condition of the swimming pool?

In the case of Jacques Jacobs v. Coldwell Banker Residential Brokerage Company Westlaw 2017 3473822 ("Jacobs case") the California Court of Appeal, Second Appellate District, affirmed the trial court's grant of summary judgment in such a case. In the Jacobs case, Coldwell Banker Residential Brokerage Company ("Coldwell Banker") was hired to market a lender owned property in Simi Valley, California. The agent assigned by the brokerage firm inspected the residence and observed no dangerous conditions save for an empty swimming pool. The agent then retained a contractor, Clearflo Pools, to inspect the swimming pool and related equipment and to provide a report detailing any necessary repairs. Clearflo Pools' post inspection report did not identify any concerns about the diving board for the empty pool. However, the agent included in the MLS listing the statement "[P]lease use CAUTION around the empty pool."

Jacques Jacobs, and his wife, were interested in purchasing the property as an investment. They met on site with the agent. While on the property, Mr. Jacobs, a licensed contractor, noticed that the backyard swimming pool was empty. He then walked on the diving board to look over a perimeter fence. When he did that, the diving board collapsed and Jacobs fell into the pool sustaining serious personal injuries.

Suit was filed by Jacobs against Coldwell Banker. Coldwell Banker moved for summary judgment on the grounds that there was no evidence that it breached its duty of care to the prospective purchasers, that there was no evidence that Coldwell Banker had actual or constructive notice of the allegedly dangerous condition of the diving board and there was no evidence that Coldwell Banker caused Jacobs' injuries. Summary judgment was granted. On appeal, the Court of Appeal affirmed the ruling of the trial court and held that foreseeability of harm was absent given that the allegedly dangerous condition was open and obvious. The Court cited a number of cases including Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393 (matter involving high voltage wires).


Interestingly, the Court also ruled that additional evidence that had been submitted in reply could be considered by the Court under the facts of that case.

The Jacobs case is important for personal injury matters in that it provides a further basis to dispute personal injury claims based upon an open and obvious condition, even if the specific defect (defective diving board) may not have been known.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at

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Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter.