Plaintiff could not save his complaint from summary judgment by raising a new theory of liability for the first time in his summary judgment opposition. Summary judgment for defendant is affirmed in this case where plaintiff fell when the diving board on which he was standing collapsed causing him to fall into an empty swimming pool. The complaint and plaintiff’s interrogatory responses identified only one theory of negligence liability—failure to maintain the diving board in safe condition. The plaintiff waived his new theory of liability for failure to protect or warn of the empty pool by not pleading it initially and by not moving, in response to the summary judgment motion, for leave to amend to state that new theory. Anyway, the new theory was not viable because defendant owed no duty to warn or protect adults of the presence of an open and obvious danger such as an empty swimming pool which plaintiff was not forced or needed to encounter to inspect the listed property to see if he wanted to buy it. Finally, the trial court did not abuse its discretion in considering evidence defendant submitted in its reply papers. Plaintiff had plenty of time to object, but didn’t. And the reply evidence addressed the empty pool theory which plaintiff raised for the first time in his summary judgment opposition.
California Court of Appeal, Second District, Division 6 (Perren, J.); July 25, 2017 (published August 14, 2017); 2017 WL 3473822