$3,000,000: Intoxicated Teenager Rendered Tetraplegic After Dive Into Dark, Code-Violating HOA Pool

November 9, 2015

poolCASE DESCRIPTION: Plaintiff was a 17 year old guest of a renter and his family at adevelopment in San Clemente operated by Verano at Talega Homeowners Association and Millennium Community Management Inc.  He and several high school aged friend were consuming alcohol at the residence within HOA for several hours.   Sometime around 10:00 p.m., the group decided to go swimming at the HOA pool.  There was conflicting testimony as to whether any deck pool lighting or in pool lighting was on when the group entered the pool area.

After spending approximately 20 minutes in the spa, Plaintiff got up from the spa and ran over to and jumped into the HOA swimming pool, which was approximately 20 feet from the spa.  It was undisputed that at the time Plaintiff dove into the pool, there were no lights on in the pool or on the pool deck.

FINAL RESULT: $3,000,000 settlement

Plaintiff contended that Defendants were liable for the incident, as they failed to “securethe pool area” and prevent access to the unlit HOA pool as required by the California Code of Regulations.  As early as 2006, the HOA Board and Property Managers were made aware of frequent access to the HOA pool after the lights in and around the pool area went out.  The HOA’s own patrol company made recommendations regarding changes that could be made that would preclude access to the pool area when unlit.  The recommendations were never implemented by the HOA.  As such on the date of the incident, Plaintiff and his friends had unimpeded access the unlit pool area.

Plaintiff also alleged that Defendant’s pool was unsafe insofar as it failed to have conspicuous “NO DIVING” signs, insofar as they were unlit at the time Plaintiff was in the pool area at the time of the incident. Plaintiff further alleged that the pool was improperly designed and gave Plaintiff the illusion that he was diving into the deep end by: (1) having a side mount ladder facing the area where plaintiff dove; (2) failing to have tile markings on the stairs in the area where plaintiff dove; (3) failing to have depth markers on the sides of the pool to warn plaintiff that the pool was shallow in the area he dove; and (4) allowing access to the pool through two gates, giving Plaintiff the illusion that he was entering the pool at the shallow end (having entered the pool area through the back gate), when in fact, he entered at the deep end.

Plaintiff conceded from the outset of the litigation that he would bear some comparative fault for diving into a dark pool while intoxicated.

Defendants contended that Plaintiff  was completely responsible for his injuries as a result of diving into a dark pool while intoxicated.  Defendants argued that the pool complied with all regulations, and that the self-latching and locked gate to the pool area satisfied the requirement that the pool area be “secure.” Defendants further contended that they were not responsible for Plaintiff’s injuries pursuant to recreational immunity codified in Civil Code §846.  Defendants also cross-complained against the parents at whose home the underage teenagers were drinking prior to the incident, alleging that the parents improperly allowed underage teens to consume alcohol and then use HOA pool.

TYPE OF CASE:  Premises Liability

PLAINTIFF’S INJURIES: Plaintiff suffered cervical fractures at C4, C5 and C6, and a compressed and contused spinal cord from C3-C7.  He is now a C2 tetraplegic, with limited gross use of one of his upper extremities.

DATE & LOCATION OF INCIDENT: February 10, 2012 in San Clemente, California

PLAINTIFF’S AGE: 17

PLAINTIFF’S OCCUPATION: Student

PLAINTIFFS’ ATTORNEY:
Richard A. Cohn, Esq.
Casey R. Johnson, Esq.
AITKEN✦AITKEN ✦COHN