Filed 7/27/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JERRY TAYLOR, 

Plaintiff and Appellant,

v.

ALTON TRIMBLE et al.

Defendants and Respondents.

 B276723

 (Los Angeles County

 Super. Ct. No. BC570536)

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.
2

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 responsibility 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.
3

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.)
4

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.)
5

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.
6

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.” 
7

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 crosscomplainant “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. Respondents 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. 
8

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”].)
9

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, 
10

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.)
11

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-cv271-RJC-DCK) 2011 U.S. Dist. LEXIS 130800 at p.*21.)
12

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.)
13

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)].) 
14

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 
15

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 
16

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”].)
17

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.)
18

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.)
19

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‟”].)
20

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.” 
21

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.