Shaw v. Petersen

OPINION

VOSS, Judge.

Plaintiff, the conservator of Stacie Ketchum, appeals from the summary judgment granted in favor of defendants Joseph and Deanne Petersen (the homeowners). Plaintiff brought this negligence claim on behalf of Stacie, a young child who was severely injured in the homeowners’ backyard swimming pool. Plaintiff challenges the trial court’s determination that, as a matter of law, the homeowners had no duty to protect Stacie from any danger that might befall her because of the pool. Finding both a duty and conflicting inferences from the facts on which reasonable jurors may disagree, we reverse.

FACTS

In reviewing the trial court’s grant of summary judgment, we view the facts in the light most favorable to the party against whom judgment was entered. Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 388, 710 P.2d 1025, 1043 (1985). The facts relevant to this matter are largely undisputed.

One evening, while 19 month old Stacie and her family were temporarily residing with the homeowners, her aunt and uncle, her parents noticed she was missing and began to look for her. After checking through the house, Stacie’s father found her in the pool. Stacie was resuscitated, but she sustained severe permanent brain damage.

Classically, no one knows how Stacie got out of the house and into the pool. The backyard was fenced, but there was no fence around the pool itself. Access to the patio and pool area was through sliding glass arcadia doors in both the family room and master bedroom. According to Stacie’s mother, Stacie could not open the arcadia doors. The family room door was found open after Stacie was discovered in the pool.

The homeowners filed a motion for summary judgment arguing, inter alia, that because Stacie and her parents were guests at the homeowners’ residence, as a matter of law they had no duty to guard against any danger that the pool might have presented to Stacie. The trial court granted summary judgment, finding that the pool was not a hidden danger but was open and obvious, thus the homeowners had no duty to make the pool safe for Stacie, a social guest and licensee.

Plaintiff filed a motion for new trial. The court denied the motion, and plaintiff timely filed this appeal.

DISCUSSION

Summary judgment is appropriate where “no reasonable juror could conclude by even a preponderance of evidence that [defendant] ... was ... actively responsible for the injury____” Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000, 1010 (1990). Motions for summary judgment should not be denied “simply on the speculation that some slight doubt ..., some scintilla of evidence, or some dispute over irrelevant or immaterial facts might blossom into a real controversy in the midst of trial.” Id. Summary judgment is inappropriate, however, where the trial judge would be “required to pass on the credibility of witnesses with differing versions of material facts, ... required to weigh the quality of documentary or other evidence, and ... required to choose among competing or conflicting inferences.” Id. Here, we do not believe the trial court was required to pass on the credibility of witnesses or weigh evidence in evaluating the motion for summary judgment. We do believe, however, that the trial court was required to choose among competing or conflicting inferences.

“[A] negligence action may be maintained only if there is a duty or obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Markowitz v. Az. Parks Board, 146 Ariz 352, 354, 706 P.2d 364, 366 (1985). Further, there must be a breach of that duty, a causal connection between the breach and injury, and actual injury or damage. Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983), citing W. Prosser, Handbook on the Law of Torts, § 30 at 143 (4th ed. 1971).

The existence of a duty is decided by the court as a matter of law. Markowitz, 146 Ariz. at 356, 706 P.2d at 368. A duty exists if

the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff. If the answer is no, the defendant is not liable even though he may have acted negligently in light of the foreseeable risks.

Id. The threshold question then, is — was there a relationship between the homeowners and Stacie, such that the homeowners were under some obligation to prevent injury to Stacie?

The parties agree that Stacie was a social guest of the homeowners, thus she was a licensee under Arizona law. Shannon v. Butler Homes, Inc., 102 Ariz. 312, 428 P.2d 990 (1967). Generally, a homeowner has the duty to warn a licensee of hidden peril and refrain from willfully causing a licensee harm. Id.

It is clear, then, that the homeowner owed Stacie a duty to exercise some care to prevent injury. The trial court, relying on the Shannon standard, held that the pool was open and obvious and since there were no allegations that the homeowners had willfully harmed Stacie, the plaintiffs “have failed to establish any duty owed which would provide a basis for actionable negligence.” An evaluation of the trial court’s ruling reveals two problems. First, having established the special relationship — duty—the court cannot negate the existence of that duty through a breach analysis. “We again point out that the existence of a duty is not to be confused with details of the standard of conduct.” Markowitz, 146 Ariz. at 355, 706 P.2d at 367. Whether a reasonable person would believe a pool was an open and obvious hazard to a 19 month old child is a question that relates to the breach of duty, not its existence. Id. at 356, 706 P.2d at 368. (Whether a hazard is “open and obvious” is not relevant to determine the existence of duty, rather it is relevant to determining if the duty was breached.)

Second, the trial court failed to distinguish between the type of care that is required to protect an adult licensee and the care that is required to protect a child licensee. Our supreme court noted the distinction in Shannon v. Butler Homes, Inc. when it stated:

The characteristics of children are proper matters for consideration in determining what is ordinary care with respect to them, and there may be a duty to take precautions with respect to those of tender years which would not be necessary in the case of adults. The duty is to exercise such care as a reasonable prudent person would exercise toward children under like circumstances.

Shannon, 102 Ariz. at 317, 428 P.2d at 995. (Emphasis added.) The Shannon court held that whether a warning was adequate depended on what a reasonable prudent person would do in like circumstances considering the ability of the child to appreciate the risk involved; thus, the adequacy of the warning would ordinarily be a question of fact for the jury. Id.

This court also considered the duty of a landowner to a child licensee in Robles v. Severyn, 19 Ariz.App. 61, 504 P.2d 1284 (1973). There, three-and-a-half-year-old Peter Robles was injured when a sharp palm frond penetrated his eye while he was playing on the Severyns’ property as an invited guest. His guardian ad litem sued the Severyns alleging that the palm trees “had a misleading hidden and dangerous defect to a child of tender years, which danger defendants had specific knowledge of,” and that it “constituted a hidden trap to children playing in the area.” Id. at 62, 504 P.2d at 1285.

Because there was no claim of willful or wanton negligence, the Robles court considered whether the “hidden peril” doctrine applied to the hazard. The court found that the trees were neither hidden nor had a deceptive quality, and consequently that the Severyns had no duty to warn Peter. Id. Nevertheless, the court recognized that a peril, although not hidden to an adult, may be so unappreciated by a young child that it may constitute a hidden peril to the child. Id. at 64, 504 P.2d at 1287.

More recently, this court considered whether summary judgment was proper in an action against a landlord for injuries suffered by a child tenant who almost drowned in an unfenced pool on the rental property. In McLeod v. Newcomer, 163 Ariz. 6, 785 P.2d 575 (App.1989), the family of two-and-one-half year old Tyler McLeod rented a house with a backyard pool from Newcomer, Mr. McLeod’s sister. The appeals court found that Tyler was a tenant. According to the court, Newcomer’s duty “was to exercise such care as a reasonably prudent person would exercise toward children under similar circumstances, those circumstances being the presence of an unfenced pool in the backyard of a house rented to a family with small children.” Id. at 9, 785 P.2d at 578. In determining whether Newcomer breached this duty, the McLeod court held that whether the pool constituted an unreasonably dangerous condition to the child was a question of fact that must take into account all the relevant circumstances, including Newcomer’s awareness of the child’s age and the risk of the pool to the child. The court explained that this issue could not be determined as a matter of law because reasonable minds might disagree on Newcomer’s liability. Id.

The McLeod court further stated that whether the unfenced pool constituted an open and obvious condition could not be resolved as a matter of law. It pointed out that the question was whether the condition and the danger were open and obvious to the child, not to the child’s parents. Id. at 10, 785 P.2d at 579.

Following McLeod and the cases preceding it, we believe that whether the pool constituted a hidden peril to Stacie is a question which reasonable persons may well answer differently. To answer this question, the trier of fact must take into account such circumstances as the child’s age and intelligence, the risk to the child and facts peculiar to the child which, in a case involving a pool, might include a history of swimming lessons or familiarity with bodies of water. If the trier of fact finds a hidden peril to the child, the fact-finder must then determine whether, considering the child’s age and circumstances, a warning was required or, if a warning was given, whether it was adequate. As the Shannon court said, “[w]hat constitutes an adequate warning is dependent upon what a reasonable prudent man would do in like circumstances considering the capacity of the child to appreciate the full extent of the risk involved.” Shannon, 102 Ariz. at 317, 428 P.2d at 995. The trier of fact could conclude that a reasonable prudent person would realize that it was impossible to adequately warn this child of the risk. Then the trier of fact must move to the other phase of duty to a child licensee and consider whether the homeowner failed to exercise reasonable care to make the dangerous condition — the pool — safe for the child.

The homeowners note that the Robles court held that the trial court properly determined that the trees were not a hidden peril because not all circumstances giving rise to a possible danger to a child create a fact question as to whether a hidden peril exists. If this were the case, the court stated, a landowner would have to childproof his property and take “precautions against every conceivable danger to which an irrepressible spirit of adventure may lead a child.” Robles, 19 Ariz. App. at 64, 504 P.2d at 1287 quoting from 38 AmJur. Negligence § 147 at 813. While we agree that a homeowner is not required to warn a child about every tree, bush, fence, stair or anything else on the property that might cause some harm to the child, we believe that a pool does not fit this category. The dangers presented by pools to young children are well-documented in Arizona, where pools are common and child drownings and near-drownings occur with alarming frequency. Thus, while a palm tree may not be a hidden peril to a child as a matter of law, we cannot say the same for a backyard pool.

Alternatively, the homeowners contend that even if the pool was a hidden peril, they fulfilled their duty by making Stacie’s parents aware of the pool and its dangers. The McLeod court responded to this argument by stating that the fact that the child’s parents were aware of the risks involved in the backyard pool and may have been contributorily negligent does not eliminate the property owner’s duty to the child. As the McLeod court said, “[questions of contributory negligence are always jury questions and, more importantly, when a child is the plaintiff, the parents’ negligence cannot be imputed to the child.” McLeod, 163 Ariz. at 11, 785 P.2d at 580. Thus, a warning about the pool to Stacie’s parents did not eliminate the homeowners’ duty to Stacie.

As we previously stated in McLeod, “we do not hold that an internally unfenced swimming pool is or is not unreasonably dangerous as a matter of law. It is for the finder of fact to decide.” Id. When all circumstances are considered, the trier of fact may or may not find that the pool was dangerous to Stacie, may or may not find that her parents assumed full responsibility for her safety, and may or may not find that the homeowners’ conduct was reasonable under the circumstances. See McLeod, 163 Ariz. at 9, 785 P.2d at 578. Considering the circumstances of this case, these factors should properly be weighed by the jury, and should not be decided by the court on a motion for summary judgment.

We conclude that the trial court erred in granting summary judgment in favor of the homeowners and therefore reverse and remand for further proceedings.

CONTRERAS, J., concurs.