Filed 7/27/17
                CERTIFIED FOR PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                       DIVISION FOUR


                                       B276723
JERRY TAYLOR,                          (Los Angeles County
                                       Super. Ct. No. BC570536)
Plaintiff and Appellant,

v.

ALTON TRIMBLE et al.

Defendants and Respondents.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly J. Fujie, Judge. Affirmed.
     Sharifi Firm and Scott Michael Good for Plaintiff and
Appellant.
     Mark R. Weinder & Associates and Kathryn Albarian
for Defendants and Respondents.
       Following the drowning death of his five-year old son,
Jaylen, in the swimming pool owned by respondents Alton
and Judith Trimble, appellant Jerry Taylor brought suit
against respondents for general negligence and premises
liability.1 Finding that respondents owed no duty of care,
and that there was no evidence a dangerous condition on
their property contributed to the tragedy, the trial court
granted summary judgment. Appellant contends he raised
issues of fact as to respondents‟ duty of care and the
dangerousness of the conditions in and around the pool.
Respondents contend the appeal should be dismissed as it
was from the nonappealable order granting summary
judgment.
       We exercise our discretion to treat the premature
appeal as an appeal from the judgment and address the trial
court‟s decision on the merits. With respect to appellant‟s
claim of negligent supervision, we conclude that where, as
here, the homeowner, having initially assumed responsibi-
lity for supervision of the child, turned over such
responsibility to an adult close relative who accepted it and
did not thereafter relinquish it, the homeowner owed no duty
of care to protect the child. With respect to appellant‟s claim
of premises liability, we conclude he failed to raise a triable


1    Appellant‟s complaint also named Jaylen‟s mother
Tywanna Sanders as a defendant. Sanders cross-claimed against
respondents. Sanders is not a party to this appeal. References to
“Trimble” herein are to Alton Trimble.




                                2
issue of fact as to causation. Accordingly, we affirm.

    FACTUAL AND PROCEDURAL BACKGROUND
      In the cause of action for general negligence, the
complaint alleged that respondents “failed to supervise and
pay adequate attention” to Jaylen. In the cause of action for
premises liability, the complaint alleged that respondents
“ignored and/or allowed dangerous conditions in and around
the swimming pool . . . .”
      Respondents moved for summary judgment. In their
statement of undisputed facts (SOF), respondents
established that on June 1, 2014, they hosted a gathering at
their home. Jaylen came with his mother, Tywanna
Sanders. Neither knew how to swim. When Sanders first
arrived, Trimble watched Jaylen in the “kiddie” or wading
area, separated from the main pool by a low rock wall, eight
to nine inches above the main pool water level.2 When
Jaylen‟s grandfather, Donald Green, a Captain for the Los
Angeles City Fire Department, arrived, he told Trimble he
would take over supervising Jaylen.3 Green allowed Jaylen


2      Sanders did not bring a flotation device for Jaylen and
testified she rarely required him to use one. After Trimble
agreed to watch Jaylen, Sanders left to go to the store. When she
returned, Jaylen was still in the wading area being supervised by
Trimble. Sanders spent most of the day inside the Trimbles‟
house.
3     Green testified at his deposition that when he arrived at
the party, he told Trimble he would watch Jaylen. Trimble had
(Fn. continued on the next page.)




                                    3
to play in the shallow end of the main pool. At some point,
Green lost sight of Jaylen. Green heard a girl scream
“„Where is the little boy?‟” Green stood up and saw Jaylen
underneath the water. He jumped in and pulled the boy out.
Efforts by Green and others to resuscitate Jaylen were
unsuccessful.
       In opposition to respondents‟ motion for summary
judgment, appellant presented evidence that respondents
had made modifications to the pool in 2013, by changing its
surface “from a light to a dark color,” and adding a Jacuzzi, a
waterfall, and the wading area.4 On the day of the incident,
there was nothing separating the shallow portion of the
main pool from the deeper end. Respondents did not provide
life vests for persons using their pool.
       Appellant did not dispute that upon arriving, Green
agreed to watch Jaylen.5 He presented evidence -- excerpts

not put Jaylen in the main pool because he was not willing to
watch him there. Green said he would “sit there and watch him
. . . in the shallow end of the main pool.” Green also testified that
he never turned over his responsibility to watch Jaylen to anyone
else.
       Sanders testified that she saw Trimble in the house and did
not ask him who was watching Jaylen because she assumed
another adult or group of adults was doing so. Sanders further
testified that Green had supervised Jaylen at other pool parties.
4    Appellant did not dispute that respondents obtained a
county permit when the modifications were made.
5     Appellant claimed to dispute a number of the facts set forth
in respondents‟ SOF, but instead referenced evidence pertaining
(Fn. continued on the next page.)




                                    4
from Trimble‟s deposition -- establishing that Trimble told
Sanders her son would have to stay in the wading area
because he could not swim, and that Trimble advised Green
to keep the boy in the wading area. Approximately 30
minutes after Green agreed to watch Jaylen, Trimble saw
Green inside the house and was “shocked” because he did not
know who was watching Jaylen. Trimble went outside and
saw Jaylen riding on the back of an older girl in the deep end
of the main pool and three other adults around the pool. The
girl and the other adults said Green had approved the girl‟s
actions. Trimble told the girl not to take anyone who could
not swim into the deep water and told Green, when he came
out of the house, it was “„not okay.‟” Green said “I got it.”
Trimble again advised Green to keep Jaylen in the wading
area, and said: “This is on you. You got to watch him. He‟s
your responsibility.” Trimble remained concerned about
Jaylen, and was “tempted to send him home . . . .”
      Appellant also submitted the declaration of expert
Brad Avrit, a civil engineer and expert in civil and safety
engineering, human factors and risk management. Avrit
asserted that the pool was in an unsafe condition because:
(1) the surfacing on the bottom was dark, obscuring the
bottom of the pool; (2) respondents failed to have handy
lifesaving equipment, such as a pole, rope or life ring; and (3)


to independent facts, which should have been set forth in his
counterstatement of facts. Despite this procedural irregularity,
we consider all the evidence presented in the opposition.




                                5
respondents failed to provide flotation devices for the
children swimming in the pool.6 Avrit further contended
that the Jacuzzi, waterfall and slide, all in use on the day of
the incident, added to the unsafe condition of the pool by
agitating the water, further obscuring the bottom of the pool
and making it difficult to hear in the pool area.7 He opined

6        Avrit claimed that at the time of the incident, respondents‟
swimming pool was not maintained in accordance with the
applicable building codes. However, the only code he referenced
stated: “The owner or the owner‟s designated agent shall be
responsible for the maintenance of buildings and structures
. . . . ” Avrit also claimed that respondents were “in violation of
the recommended guidelines and industry standards for
swimming pools” by failing to provide arm flotation devices to the
children on the day of the incident. However, the only standard
he cited was from a booklet entitled “Overall Safe Operation and
Maintenance of Your Inground Pool,” published by the National
Spa & Pool Institute, which stated: “Plan ahead for potential
emergency situations by owning and being familiar with basic
lifesaving equipment and procedures. Have at poolside a device
such as a solid pole, a rope or a life ring, which can provide
immediate assistance to a person in trouble. Practice using these
devices correctly to be ready in an emergency. Only use these
devices for emergencies. Do not allow children to play with
lifesaving equipment.”
7      Avrit cited a booklet published by the National Spa & Pool
Institute, “The Sensible Way to Enjoy Your Inground Swimming
Pool,” for the proposition that “For safety‟s sake, any user of your
pool must be able to clearly see the bottom drain or bottom of the
pool . . . .” The sentence, quoted only partially in the declaration,
concludes, “so as to be able to make intelligent decisions about
jumping, sliding or diving.”




                                  6
that had Jaylen been provided “arm flotation devices” or had
the bottom of the pool been more visible and the noise
minimized, “it is more likely than not that Jaylen Taylor‟s
fatal incident would have been prevented.”
      The court granted the motion for summary judgment.
The court found respondents owed no duty of care, because
“Green had explicitly undertaken supervision of [Jaylen,]
and Sanders was on the premises.” The court further found
that the Avrit declaration “fail[ed] to create a triable issue of
material fact regarding whether the pool constituted a
dangerous condition,” and that neither appellant nor cross-
complainant “offered evidence showing that any dangerous
condition of the pool caused [Jaylen‟s] death.”8

                        DISCUSSION
      A. Timing of Appeal
      The order granting summary judgment was filed June
8, 2016. Notice was waived. On August 5, 2016, nearly two
months later, appellant filed his notice of appeal. Respon-
dents did not file a proposed judgment until August 24,
2016. The trial court entered the proposed judgment on
August 29, 2016.



8     Respondents raised a number of objections to Avrit‟s
declaration. The trial court did not rule on the objections, but the
language quoted above indicates the court considered Avrit‟s
declaration in making its ruling.




                                 7
      Appellant contends we should dismiss the appeal
because the notice was filed prior to entry of judgment and
refers to the June 8 order rather than the August 29
judgment. We have discretion to treat an appeal from an
order granting summary judgment as an appeal filed after
the entry of judgment and elect to do so here. (Mukthar v.
Latin American Security Service (2006) 139 Cal.App.4th 284,
288 (Mukthar).)9

      B. Standard of Review
      A defendant‟s “motion for summary judgment shall be
granted if all the papers submitted show that there is no
triable issue as to any material fact and that [the defendant]
is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).) When a defendant moves for
summary judgment, “„its declarations and evidence must
either establish a complete defense to plaintiff‟s action or


9      Nearly two months passed after the court issued its
summary judgment order before appellant noticed the appeal; he
could reasonably have been concerned that the judgment or
notice of its entry had been lost. Had respondent promptly filed
the proposed judgment, any confusion could have been avoided.
(See Mukthar, supra, at p. 288 [“the ends of justice” served by
deeming notice of appeal to have been filed after entry of
judgment: “With the time running and uncertainty about
whether there was a judgment on file, counsel correctly chose to
file a notice of appeal in order to protect the right to appeal. With
no judgment in hand, counsel could only refer in the notice of
appeal to the order granting summary judgment”].)




                                  8
demonstrate the absence of an essential element of plaintiff‟s
case. If plaintiff does not counter with opposing declarations
showing there are triable issues of fact with respect to that
defense or an essential element of its case, the summary
judgment must be granted.‟” (Saldana v. Globe-Weis
Systems Co. (1991) 233 Cal.App.3d 1505, 1510-1511, quoting
Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d
76, 81.)
       “„On appeal from a summary judgment, an appellate
court makes “an independent assessment of the correctness
of the trial court‟s ruling, applying the same legal standard
as the trial court in determining whether there are any
genuine issues of material fact or whether the moving party
is entitled to judgment as a matter of law.”‟” (DuBeck v.
California Physicians’ Service (2015) 234 Cal.App.4th 1254,
1264.) We consider “all of the evidence the parties offered in
connection with the motion (except that which the court
properly excluded) . . . .” (Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 476.) The evidence presented by the party
opposing summary judgment and the reasonable inferences
therefrom are accepted as true. (Villacres v. ABM
Industries, Inc. (2010) 189 Cal.App.4th 562, 575.) But it is
“not enough [for the opposing party] to produce just some
evidence”; the evidence must be “of sufficient quality to allow
[a] trier of fact to find the underlying fact in favor the party
opposing the motion for summary judgment.” (McGonnell v.
Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105;
accord, Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222,




                               9
1239-1240; Whitmire v. Ingersoll-Rand Co. (2010) 184
Cal.App.4th 1078, 1093.) “„“The purpose of the law of
summary judgment is to provide courts with a mechanism to
cut through the parties‟ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary
to resolve their dispute.”‟ [Citation.]” (DuBeck v. California
Physicians’ Service, supra, at p. 1264.)

      C. Negligent Supervision
      A defendant is not, by virtue of his or her status as a
homeowner, responsible for supervising children who are
invited onto his or her property where the children‟s parents
are present and supervising or expected to be supervising
the child. (Padilla v. Rodas (2008) 160 Cal.App.4th 742,
748-749 (Padilla), citing Englund v. Englund (1993) 246
Ill.App.3d 468 [615 N.E.2d 861], Moses v. Bridgeman (2003)
355 Ark. 460 [139 S.W.3d 503] and Herron v. Hollis (2001)
248 Ga.App. 194 [546 S.E.2d 17].)10 It is “„“normally . . . the


10    Englund v. Englund, Moses v. Bridgeman, and Herron v.
Hollis all involved parents of drowned children who sued the
owner of the property on which the tragedy occurred; all three
courts concluded that when a parent was present, it was the
parent‟s responsibility -- not the property owner‟s -- to supervise
the child. (See, e.g., Englund v. Englund, [615 N.E.2d at p.
**867] [“It was plaintiff‟s [the mother‟s] responsibility to make
sure that [her daughter] did not gain access to the pool, and she
could have done so by positioning herself in an area from which
she could have seen [the girl] play in the sand [near the pool], or
by latching the pool gate . . . [I]t was not reasonably foreseeable
(Fn. continued on the next page.)




                                    10
duty of a parent or other adult having primary supervisory
control over the child to see to it that a child would not be
going into a place of obvious danger,”‟” such as a swimming
pool. (Padilla, supra, at p. 750, quoting Herron v. Hollis,
supra, at p. **19.) Where, as in the present case, the danger
“„“is open and obvious rather than latent or obscure, no
greater duty is imposed upon a host of a child under parental
supervision than would be owed to the parent. . . . [T]he
parents‟ failure to properly supervise [their] child is the
proximate cause of a subsequent injury. The host is not
negligent because he has performed his duty of having the
premises as safe for his guest as for his family and himself.‟‟”
(Padilla, supra, at p. 749, quoting Moses v. Bridgeman,
supra, [at pp. **509-510].)
       The rule is different where the defendant homeowner
has expressly or impliedly agreed to supervise a child while
the minor is on the premises. In that circumstance, the
homeowner may be liable for negligent supervision. (See
Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1054-1055
[recognizing potential liability of couple who took son‟s non-

that plaintiff would fail to supervise her daughter adequately,
and it is more desirable to place the substantial burden of
supervising plaintiff‟s daughter upon plaintiff rather than the
homeowners”].) Multiple other courts have reached the same
conclusion. (See, e.g., Horace ex rel. Horace v. Braggs (Ala. 1998)
726 So.2d 635, 637; Workman v. Dinkins (N.D. Ill. 2006) 442
F.Supp.2d 543, 551; Lampkin v. Covington Providence
Homeowners Assoc. (W.D.N.C., Nov. 10, 2011, Case No. 3:10-cv-
271-RJC-DCK) 2011 U.S. Dist. LEXIS 130800 at p.*21.)




                                11
swimming friend to lake and allowed him to go out on
paddleboard, for “fail[ure] to supervise him adequately” (id.
at p. 1054)]; Margaret W. v. Kelly R. (2006) 139 Cal.App.4th
141, 152-153, 154 [host parent assumed special relationship
with children invited into her home for sleepover to protect
them from “foreseeable perils” (id. at p. 154)]; Pamela L. v.
Farmer (1980) 112 Cal.App.3d 206, 212 [in inviting children
into her home and assuring parents it would be safe for them
to play there, homeowner assumed special relationship with
children].) “„The measure of precaution which must be taken
by one having a child in his care, who stands in no relation
to the child except that he has undertaken to care for it, is
that care which a prudent person would exercise under like
circumstances.‟” (Wallace v. Der-Ohanian (1962) 199
Cal.App.2d 141, 144.)11


11     Our research has found no California case in which a
negligent supervision claim arose in the context of a pool party.
But such claims have arisen in other jurisdictions, and courts
have expressed no hesitation in concluding that a homeowner
who has volunteered to supervise a young swimmer may be liable
if he or she does so negligently. (See, e.g., Royal v. Armstrong
(2000) 136 N.C.App. 465, 471 [524 S.E.2d 600] [where child was
dropped off at the home of family hosting a swimming party,
homeowners “were required to exercise reasonable care
supervising children lawfully using the pool at their invitation”
(id. at p.**603)]; Hemphill v. Johnson (1998) 230 Ga.App. 478,
480 [497 S.E.2d 16] [question of fact whether homeowner who
undertook to supervise drowning victim and other children who
came to her house to swim used reasonable care]; see also
Anderson v. Mitts (2004) 87 Ark.App. 19, 25 [185 S.W.3d 154],
(Fn. continued on the next page.)




                                    12
      Here, respondent Trimble initially agreed to supervise
Jaylen when the boy and his mother arrived at the party.
The issue is whether he was negligent in performing this
supervision or was thereafter negligent in delegating such
supervision to the boy‟s grandfather, Green. Like the trial
court, we conclude the undisputed facts establish he was not.
Trimble watched Jaylen in the wading area until Green
arrived and declared he (Green) would watch Jaylen.
Trimble then turned over supervision of Jaylen to Green, a
responsible adult who was not only the boy‟s grandfather,
but also a fireman. Green assured Trimble he would
carefully watch Jaylen in the shallow end of the main pool.
Thereafter, Trimble was in and out of the house. Sanders
saw him inside the house and assumed he had passed on the
responsibility of supervising her son to another responsible
adult or group of adults. She did not question that decision
or suggest it was inappropriate for him to have done so.
Sanders had trusted Green to supervise Jaylen‟s pool
activities in the past. We see no reason why a party who

quoting Dan B. Dobbs (West 2001) The Law of Torts, § 236 [“[I]f
the landowner (or anyone else) has been entrusted with and
accepted responsibility for supervising a child, he owes a duty of
reasonable care to provide supervision, regardless of the child‟s
status on the land” (id. at p. **157, italics omitted)]; Laser v.
Wilson (1964) 58 Md.App. 434, 445 [473 A.2d 523] [“The
responsibility for supervision of [a] child may be relinquished or
obtained . . . upon the mutual consent, expressed or implied, by
the one legally charged with the care of the child and by the one
assuming the responsibility” (id. at p. **528)].)




                                13
agreed to take on the supervision of a child may not delegate
that responsibility to another responsible adult, and find no
basis for imposing liability on the first party for the second
party‟s potential negligence.
      We find support for our conclusion in Royal v.
Armstrong, supra, [524 S.E.2d 600]. There, the hosts of a
pool party (the Armstrongs) agreed to watch eight-year-old
Darion, dropped off at their home by his mother. (Id. at
p. **601.) A few minutes after opening the pool for use by
Darion and the other children present, Mrs. Armstrong
asked the parents of the guest of honor (the Burtons) to
watch the swimmers. Mr. Burton was a former lifeguard.
(Ibid.) While the Burtons were watching, Darion drowned.
(Id. at p. **602.) The court found “no evidence” that the
Armstrongs‟ direct supervision was negligent. It next
considered “whether it was reasonable for [them] to delegate
the supervision of the children to the Burtons,” and
concluded: “It does not appear to us unreasonable for a
parent to delegate the pool-side duties to another equally
capable individual. In the case at bar, [the Armstrongs] left
the children in the care of two able-bodied adults with no
physical handicaps that would prevent them from rescuing a
child in trouble. Mrs. Armstrong specifically asked the
Burtons to watch the children before she went inside to work
on the food. By doing so, she entrusted her own three
children, who were among those playing in and around the
pool, to the care of the Burtons. Moreover, the Burtons‟ son
was the guest of honor, and the record suggests that other




                              14
Burton children also may have attended the party;
consequently, the Burtons had ample incentive to monitor
the swimmers closely. Defendants were readily accessible
should trouble arise, and, in fact, Mr. Armstrong was able to
help Mr. Burton administer CPR. All the evidence indicates
that defendants reasonably delegated supervision duties to
the Burtons, while no evidence indicates that the delegation
was negligent. Therefore, [the Armstrongs] were not
negligent in delegating the duty of attending the swimmers
to the Burtons.” (Id. at p. **604.)
      In an attempt to raise an issue of fact concerning
negligent supervision, appellant points to evidence that
Trimble advised Green to keep Jaylen in the wading area,
evidence that Trimble was “shocked” to see Green inside the
house, and evidence that Trimble contemplated sending
Jaylen home. The fact that an adult responsible for
supervising a child has a different view of how to keep the
child safe does not require other adults in the vicinity to step
in and take control. Young children, even infants, may
safely be taken into adult-sized swimming pools as long as
the supervising adult uses due care. Jaylen could have been
safe in the main pool area had Green stayed close and kept
his eye on him, as he said he would. Moreover, Trimble did
question Green‟s decision to leave Jaylen in the care of a
minor and obtained Green‟s assurance that he would not do
so again. There is no evidence that Green left his post near
Jaylen after that incident. It was not unreasonable for
Trimble to defer to Green once Green agreed to assume




                               15
supervisory duties, and the fact that Trimble remained
concerned and continued to check on Green and Jaylen is not
evidence of negligence.12 In sum, the trial court did not err
in granting summary judgment on the negligent supervision
claim.

       D. Premises Liability
       An owner of real property is “not the insurer of [a]
visitor‟s personal safety . . . .” (Ortega v. Kmart Corp. (2001)
26 Cal.4th 1200, 1206.) However, an owner is responsible
“„for an injury occasioned to another by [the owner‟s] want of
ordinary care or skill in the management of his or her
property. . . .‟” (Cabral v. Ralphs Grocery Co. (2011) 51


12     In Englund v. Englund, where the plaintiff similarly
contended that summary judgment was improper because “the
homeowners admitted their negligence” by telling the plaintiff
“„[w]e just got too relaxed,‟” the court stated: “We have previously
found that the homeowners did not have the primary duty to
watch Lauren [the victim] . . . [E]ven if the homeowners
acknowledged that they were lax in their attention to Lauren,
this does not relieve plaintiff of her duty to Lauren and does not
render the homeowners liable for Lauren‟s death.” (Englund v.
Englund, supra, [615 N.E.2d at p. **868]; see also Bradley v.
Welch (2006) 94 Ark.App. 171, 180 [228 S.W.3d 559, *565]
[“While [hosts of pool party] may have planned the party and
engaged in the ordinary, instinctual supervision that most adults
undertake when they are around children, there is no showing
that [the hosts] took over supervision from [the child‟s
grandmother, who brought him to the party and remained
nearby”].)




                                 16
Cal.4th 764, 771, quoting Civ. Code, § 1714, subd. (a).)
Accordingly, landowners are required “to maintain land in
their possession and control in a reasonably safe condition”
(Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th
666, 674, disapproved in part on another ground in Reid v.
Google, Inc. (2010) 50 Cal.4th 512), and to use due care to
eliminate dangerous conditions on their property. (Lackner
v. North (2006) 135 Cal.App.4th 1188, 1197; see Rowland v.
Christian (1968) 69 Cal.2d 108, 119 [“The proper test to be
applied to the liability of the possessor of land in accordance
with section 1714 of the Civil Code is whether in the
management of his property he has acted as a reasonable
man in view of the probability of injury to others . . . .”].)
      “To establish liability on a negligence theory against an
owner for injuries caused by a dangerous condition of the
property, a plaintiff must prove duty, breach, causation, and
damages.” (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th
1134, 1139, citing Ortega v. Kmart Corp., supra, 26 Cal.4th
at p. 1205.)13 The trial court concluded appellant had failed
to raise a triable issue of fact as to causation. We agree.

13    Proof that the defendant violated a statute or regulation,
including administrative regulations and local building code
provisions, may give rise to a presumption of negligence in
specified circumstances under the doctrine of negligence per se.
(Evid. Code, § 669; Elsner v. Uveges (2004) 34 Cal.4th 915, 927;
Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209, 1218; Ritter
& Ritter, Inc. Pension & Profit Plan v. The Churchill
Condominium Assn. (2008) 166 Cal.App.4th 103, 119.) Appellant
does not identify any statute or regulation violated by
(Fn. continued on the next page.)




                                    17
      Appellant bases his claim of premises liability on (1)
respondents‟ resurfacing the pool from “light to dark”; (2)
their addition of a Jacuzzi, waterfall and slide; (3) the lack of
a floating rope or other device dividing the shallow end of the
main pool from the deep end; and (4) the ease of access from
the wading area into the main pool.14 There is no evidence

respondents. In his declaration, Avrit referred to informal
industry safety standards warning pool owners that “„any user of
your pool must be able to clearly see the bottom drain or bottom
of the pool‟” and urging them to “„plan ahead for potential
emergency situations by owning and being familiar with basic
lifesaving equipment and procedures‟” such as “„a solid pole, a
rope or a life ring.‟” Even were such informal industry safety
standards sufficient to give rise to a presumption of negligence in
the same manner as a statute or regulation, these standards
would not assist appellant. When relying on negligence per se, a
plaintiff must do more than establish the violation; he or she
must also establish that the injury resulted from an occurrence
which the statute or other provision was designed to prevent, and
that the injured party was one of the class of persons for whose
protection the statute or other provision was adopted. (Reyes v.
Kosha (1998) 65 Cal.App.4th 451, 462-463.) The industry‟s
recommendation that users be able to see the bottom of the pool
is to protect those who are “jumping, sliding or diving.” Its
recommendation that a pole, rope or life ring be available is to
help someone struggling in the water. There was no evidence
that Jaylen‟s drowning resulted from jumping, sliding or diving
in the water, or that a pole, rope or life ring would have saved
him. Nor, as we discuss below, is there any evidence that Jaylen
was not visible when he sank in the pool.
14    Avrit also blamed the failure of respondents to make
available arm flotation devices or “floaties.” Appellant does not
mention this in his argument or suggest that it contributed to the
(Fn. continued on the next page.)




                                    18
these factors played a part in Jaylen‟s drowning. (See
Padilla, supra, 160 Cal.App.4th at p. 752 [where defendant
shows that plaintiff cannot reasonably expect to establish a
prima facie case of causation, trial court is justified in
awarding summary judgment].) There was no evidence that
the color of the surfacing prevented anyone from seeing or
rescuing the boy. Green testified that the moment he heard
the girl ask about Jaylen, he stood up and saw the child at
the bottom of the pool.15 Similarly, there was no evidence
that a floating rope separating the deep and shallow ends of
the pool would have prevented his drowning. And because
Jaylen had been placed in the main pool at the time of the
tragedy, the minimal separation between the wading area
and the main pool was beside the point.




“dangerous condition” of the pool. Nor does he contend that a
pool owner is obliged to provide flotation devices for every child
who uses the pool.
15      Neither this Court nor the trial court was required to
accept Avrit‟s opinion that the color of the surfacing contributed
to the incident. An expert opinion that does not contain “a
reasoned explanation illuminating why the facts have convinced
the expert” need not be relied on. (Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108,
1118; accord, Sargon Enterprises, Inc. v. University of Southern
Cal. (2012) 55 Cal.4th 747, 770 [“„[T]he matter relied on must
provide a reasonable basis for the particular opinion offered, and
. . . an expert opinion based on speculation or conjecture is
inadmissible‟”].)




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       With respect to the Jacuzzi, waterfall and slide, we
note that noise and agitated water are normal conditions in
and around pool parties, regardless of Jacuzzis, waterfalls or
slides. Guests create noise and agitate the water by
swimming and getting in and out of the pool, and it is
unreasonable to expect the owners of a pool to impose quiet
and calm. (Cf. Parsons v. Crown Disposal Co. (1997) 15
Cal.4th 456, 473 [defendant did not breach duty of care
merely by causing machine to produce noises or emissions
necessary to its regular operation].) Moreover, there is no
evidence that noise and ripples in the water from this
equipment contributed to the tragedy by obscuring Jaylen‟s
struggles or preventing onlookers from hearing him; he may
well have slipped under quietly.16 Close and constant
supervision is the only reliable method of keeping young,
non-swimming children safe in an adult pool. Absent such
supervision, no duty we could impose on pool owners would
prevent similar tragedies from occurring. Accordingly, the
trial court properly granted summary judgment on the
record before it.




16    We note that a Centers for Disease Control and Prevention
advisory attached to Avrit‟s declaration provided the following
advice: “When a young child or inexperienced swimmer is in or
around water, always be within arm‟s length. . . . Drowning can
happen very quickly and quietly.”




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                     DISPOSITION
     The judgment is affirmed.
     CERTIFIED FOR PUBLICATION




                             MANELLA, J.

We concur:




EPSTEIN, P. J.




WILLHITE, J.




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