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Court of Appeal:
Plaintiff Hopping Hotel Pool Fence Was Not Unforeseeable
Opinion Reverses Summary Judgment, Resurrects Negligence Action, Saying Reasonable Minds Can Differ As to Whether Establishment Could Have Foreseen That Patron Might Cut Herself Climbing Locked Gate
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal yesterday reinstated a negligence action against a hotel by a former occupant who cut her foot while attempting to hop a locked gate securing the establishment’s pool, finding that her claims are not precluded by a lack of proximate causation because reasonable minds could differ as to whether her conduct in climbing the secured fence was reasonably foreseeable.
Appealing the judgment in favor of the hotel was Layla Heitman, who sustained injuries in June 2019 while staying at the La Avenida Inn in Coronado. Heitman, who was 17 years old at the time of her injury, was staying at the inn with friends during summer break when she decided to go for a swim.
Heitman asserts that a sign announced that the pool was to be open between 7 a.m. and 10 p.m. but she found the gate locked at 9:30 a.m. Undeterred, she hopped the five-foot fence, went for a swim, dried off, and proceeded to climb the gate again to exit the swimming area.
She slipped on the top of the gate, cutting her right foot on the metal sign affixed to it.
Claims Asserted
In January 2021, Heitman filed a complaint against the owner of the inn—1315 Orange Ave LLC—asserting claims for negligence and premises liability, alleging that the hotelier’s “failure to inspect and maintain the property and the condition of the jagged metal pool gate sign foreseeably, directly, proximately and legally caused [her] injuries” and that the “location of the sign as well as the sharp edges of [it] posed an unreasonable risk of harm.”
Orange Ave filed a motion for summary judgment, arguing that it did not breach any duty of care to Heitman because the gate was locked, Heitman’s own conduct in hopping the fence caused her injuries, and her behavior was unreasonable and unforeseeable.
San Diego Superior Court Judge Richard S. Whitney granted the defendant’s motion for summary judgment, finding that there were triable issues of fact as to whether the hotel owed a duty of care to Heitman but that lack of proximate causation prevented the claims.
Whitney said “[i]t is undisputed that but for the existence of the jagged metal [Heitman] would not have cut her foot” but ruled that Orange Ave. was “not the proximate cause” because “it is not reasonably foreseeable that a hotel patron or guest would ignore the closed and locked gate and climb the fence.”
Justice Jose S. Castillo authored the unpublished opinion reversing the judgment. Acting Presiding Justice Richard D. Huffman and Justice Terry B. O’Rourke joined in the opinion.
Proximate Causation
Castillo noted that proximate cause involves two factors—what is known as “cause in fact” or “but for” causation which considers whether an act is a necessary antecedent to the injury and takes into account public policy considerations focusing on an actor’s responsibility for the negative consequences of his or her conduct. A defendant will be absolved of liability even if cause-in-fact causation is met where it would be unjust to hold that party legally responsible.
The jurist explained that “[p]roximate cause is a question of fact that cannot be decided as a matter of law unless ‘the facts are such that the only reasonable conclusion is an absence of causation.’ ”
Applying this framework, he turned to the facts of the present case and said:
“Other than the grant deed showing it owned the hotel, the only evidence Orange submitted with its motion was Heitman’s complaint and special interrogatory responses. Orange’s motion relied on five material facts, none of which Heitman disputed, establishing the accident occurred in the manner alleged.”
As to cause in fact, he opined:
“Orange argues the ‘only cause of [Heitman’s] injury was her own decision to climb a locked gate knowing she must climb out.’ This ignores the reality that ‘but for’ the metal sign on the gate, Heitman would not have cut her foot. Orange did not contend—much less submit any evidence to establish—Heitman cut her foot on anything else. Therefore, Orange did not meet its initial burden of establishing that its conduct was not a cause in fact of Heitman’s injury.”
Public Policy Considerations
Turning to the “public policy” considerations, the justice pointed out that the limitation on liability under the second factor of proximate cause comes down to foreseeability. As to the plaintiff’s complaint, he wrote:
“The court below granted summary judgment based on the second aspect of proximate cause—specifically, the policy that a defendant should not be held liable for conduct not reasonably foreseeable. Orange argues the court was correct in finding it ‘not reasonably foreseeable that a hotel patron or guest would ignore the closed and locked gate and climb the fence.’ Under the correct standards for determining proximate cause at summary judgment, however, this was not unforeseeable as a matter of law.”
Castillo reasoned:
“Orange operated a hotel with a pool in Coronado. The undisputed facts established the incident occurred at about 9:30 a.m. during the summer, and the locked gate was only five feet high. A jury could reasonably conclude Orange should have foreseen a hotel patron might climb the gate to use the pool if locked. To the extent Orange relies on evidence the gate had a sign stating ‘Management reserves the right to deny use of pool to anyone at anytime’ and ‘NO TRESPASSING,’ Orange did not submit this evidence with its moving papers. It therefore cannot rely on it to meet its initial burden of establishing unforeseeability.”
He continued:
“In any event, Heitman’s opposing evidence that the same sign stated the pool was open from 7:00 a.m. to 10:00 p.m. and that she swam in the pool the day prior creates a triable issue as to foreseeability. It is likely enough in the setting of modern life that a hotel patron might climb the gate to use the pool under these circumstances. A jury may well disagree—or assign Heitman considerable comparative fault—but because there is at least room for a reasonable difference of opinion, we cannot conclude as a matter of law that Heitman’s conduct was unforeseeable….Thus, on this record, the factual issue of proximate cause should have been submitted to the jury. The court erred in granting summary judgment on this ground.”
Duty of Care
Orange Ave concedes that it owes a duty of care to its patrons to maintain its property in a reasonably safe condition but contended that it did not breach that duty because the duty evaporated “once [Heitman] climbed a locked fence….”
Saying that the defendant’s argument “focuses solely on foreseeability,” he wrote:
“We conclude Orange failed to establish that the scope of its duty of care did not extend to taking reasonable measures to prevent hotel patrons from cutting themselves on the pool gate’s metal sign. We agree with the trial court it was foreseeable the sign could cut a patron. Thus, Orange did not meet its burden to show it had no duty to prevent the type of injury that occurred in this case.”
Castillo continued:
“Orange also argued ‘[t]here is no evidence that [it] did not act reasonably to prevent injury.’ Yet Heitman created a triable issue as to whether Orange breached its duty to exercise ordinary care by submitting a photograph showing the metal sign that cut her foot was rectangular, with its edges extending past the vertical bars of the gate. And evidence that the gate had a no trespassing sign does not conclusively establish Orange satisfied its duty of care. To the contrary, a reasonable jury could find that a reasonably prudent hotel owner in Orange’s position would have taken other measures to prevent an injury like Heitman’s by, for example, rounding the corners and edges of the rectangular sign.”
The case is Heitman v. 1315 Orange Ave LLC, D083410.
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