C.A. 2nd;
B277832

The Second Appellate District affirmed a judgment. The court held that a brokerage firm was not negligent for failing to protect a prospective home buyer from either the obvious danger of an empty swimming pool or the hidden danger of an unknown defect in the pool's diving board.

Coldwell Banker Residential Brokerage Company marketed for sale a vacant, bank-owned residential property with a fenced backyard and an empty swimming pool and diving board. Before listing the property for sale, a licensed real estate agent visually inspected the property, including the pool and diving board. The only dangerous condition she observed was the empty swimming pool. She also retained Clearflo Pools to inspect the swimming pool and related equipment. Clearflo's post-inspection report did not identify any concerns about the diving board. The agent prepared a listing for the property that advised using “CAUTION” around the empty pool. While viewing the property as a potential buyer, Jacques Jacobs noticed the empty pool. As a contractor who regularly performed tile work in and around swimming pools, Jacobs knew the potential danger of the empty pool. Nonetheless, wanting to get a better look over the backyard fence, he stepped onto the diving board. The base of the diving board collapsed beneath him and he fell into the empty pool, sustaining serious injury. He and his wife sued Coldwell for negligence and related causes of action, alleging that it failed to protect him from the dangerous condition of the diving board.