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Menendez v. Paddock Pool Construction Co.12/10/1991
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In its minute entry granting summary judgment, the trial court found section 353, the exception to section 352 nonliability, inapplicable to the pool transfer. The court found that " ny alleged 'dangerous condition' was open and obvious or was readily discoverable" and that no facts were presented to establish that Continental or Fischer concealed or failed to disclose any such condition to the vendee. The court therefore hinged its decision not on whether a dangerous condition existed but on the section 353(a) requirement that a vendee not have reason to know of the condition or risk involved and on the evidence of nondisclosure by the vendor. We note that even when evidence shows failure to disclose, section 353 applies only so long as the vendee is both unaware and without reason to know of the condition or risk.
Menendez argues that the trial court erred by not applying section 353 because material issues of fact exist regarding whether there was a dangerous
latent condition and whether the vendee was actually aware of it. As to the condition, Menendez claims that it was a hidden hazard created by the combination of overall shallow water depth with insufficient warning signs and depth markers. Menendez argues that the vendee, Dobson Homeowners' Association, was aware of the shallow depth and danger of diving but denies that the vendee knew about the signs and markers. Menendez thus contends that the vendee was unaware of the combined hazard. The only evidence before the trial court that directly supported this hidden danger theory was an affidavit of Menendez's witness, engineer Gaston Lawrence Raffaelli. Raffaelli stated that, in his opinion, the absence of a "deep end" in the pool, together with insufficient signs and markers, created a dangerous condition that would be obvious only to skilled pool designers and builders but not the average person lacking special training or experience. He further declared that this condition was a direct cause of Menendez's injury , which would probably have been prevented by adequate markers and signs.
It is undisputed that the pool was designed and built with a slanted bottom, creating a maximum water depth of four or more feet in the deepest portion and three feet or less at its most shallow end. It is also undisputed that Menendez sustained his injury when he was thrown into the shallow end. We think we can safely take judicial notice of the fact that swimming pools in Arizona commonly have shallow ends. Further, Menendez neither argues nor has presented any evidence that a shallow end of this depth per se creates an unreasonable risk within the meaning of section 353(1) of the Restatement. Instead, the hazardous condition described in Raffaelli's affidavit is an indivisible combination of a too-shallow deeper portion with inadequate markers and signs. If Menendez was injured by plunging into a deep end with insufficient water depth, this hazard might directly relate to the injury. Yet, the affidavit neither shows nor allows reasonable inferences that the alleged condition either created an unreasonable risk of danger in the most shallow end of the pool or caused Menendez's injury, notwithstanding its causation opinion. We allow an expert witness much greater latitude than a lay witness in voicing opinions in summary judgment affidavits. Continental Bank v. Wa-Ho Truck Brokerage, 122 Ariz. 414, 418, 595 P.2d 206, 210 (App.1979). Raffaelli's affidavit, however, fails to provide any reasonable linkage between the condition alleged and the injury at its shallow end.
Given the injury location, it is immaterial whether the water depth a
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