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Menendez v. Paddock Pool Construction Co.12/10/1991
d follow-up contract fixed the pool depth to not exceed four-and-one-half feet. Menendez neither argued to the trial court nor does he assert on appeal that Paddock was authorized to design a pool of diving depth, or that it was granted any discretion in the critical area of depth design. Discretion in other design features is of no significance to Menendez's claim.
Additionally, as noted previously, Menendez does not claim that a shallow end with a water depth of three feet or less is per se defective. Since Raffaelli's affidavit isolated the lack of a "deep end" as the depth defect, the issue narrows further to discretion over the maximum water depth in the deepest end. Because we previously concluded that Raffaelli's affidavit could not reasonably establish causation for Menendez's injury in the shallow end, further discussion of depth design discretion under Bell is unnecessary. The evidence for this specific alleged negligence cannot serve to create liability in Paddock for the injury at issue.
The water depth markers were alleged to be defective because the vertical wall markers were inaccurate and the horizontal deck surface markers were missing. The only evidence regarding vertical markers presented to the trial court was a simple statement in Raffaelli's affidavit that the markers were "inaccurate and misleading." No specific reasons or basis were given for such conclusions. Absent any reasons for this opinion, we find it wholly conclusory and insufficient as evidence to raise a genuine issue of material fact.
As to the missing deck surface depth markers, the record reveals that Menendez conceded that the pool design plans prepared by Paddock were altered prior to county health department construction approval to include such markers. We therefore find no evidence of Paddock's design
negligence in this regard. The record also reveals that Paddock was not responsible under the contract for construction of the pool deck containing the markers. Rather, the pool deck was built by another subcontractor with whom Continental contracted independently. Moreover, Paddock presented uncontroverted deposition evidence showing that the other subcontractor undertook the marker installation. We find no evidence of negligent deck marker installation by Paddock.
As to the sign defects, since both the bid estimate and contract specified that Paddock was to provide but one "Pool Rule" sign of the "No Life Guard on Duty" type and because Menendez has presented no evidence that Paddock was exclusively required to furnish all pool signs, we conclude that Paddock had no contractual discretion to provide all additional signs that might be required. Our conclusion finds further support in the undisputed fact that Continental, as both owner and general contractor, itself handled such aspects of pool construction as the decking, fencing, and exterior lighting. In addition, warning signs besides those described in the Paddock contract were in fact installed at the pool gate.
We therefore conclude that no genuine issue of material fact bars Paddock from invoking the accepted work doctrine under Bell and Porras and further, that Menendez has not presented evidence connecting his injury to any alleged design defect in the pool's shallow end. The trial court properly granted summary judgment in favor of Paddock.
Conclusion
For the above reasons, the judgments of the trial court are affirmed.
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