Jacobs
Jacobs v. Coldwell Banker Residential Brokerage Co.
Opinion
lead Opinion
Perren, J.
*440 Defendant Coldwell Banker Residential Brokerage Company (Coldwell) marketed for sale a vacant, bank-owned property located in Simi Valley. The property had a backyard with an empty swimming pool and diving board. While plaintiffs Jacques Jacobs (Jacques) and his wife, Xenia *441 Jacobs (Xenia), 1 were viewing the property as potential buyers, Jacques stepped onto the diving board to look over the fence. The diving board base collapsed and Jacques fell into the empty pool. Plaintiffs sued Coldwell for negligence and loss of consortium.
The trial court granted Coldwell's motion for summary judgment. It determined that Coldwell was entitled to judgment on plaintiffs' claim regarding the negligent condition of the diving board. In opposition to the motion, plaintiffs argued that they also were claiming that the empty pool was a dangerous condition. The court rejected this unpled, undisclosed theory of liability. It also concluded that even if the theory had been pled, Coldwell could not be held liable for failing to remedy the dangerous condition of the empty pool because Jacques's accident was not reasonably foreseeable. We affirm for the same reasons.