Justices Rule Home’s Sellers Not Liable for Later Injuries

In a ruling involving a Sherman Oaks couple, the state Supreme Court has decided that homeowners who made an improvement to their home and then sold it cannot be sued for injuries caused later by the improvement.

On a 5-0 vote, the court rejected a suit on behalf of a 22-month-old boy who was crippled and suffered permanent brain damage when he fell into a pond in the backyard of a Northridge home where his family was visiting in May, 1976.

The suit had been closely watched by real estate and insurance firms who feared it would leave homeowners forever liable for any improvements they made on their properties.

The pond had been dug by Jon and Marion Kubichan, who had owned the home but sold it more than 2 1/2 years before the boy’s accident.

Only If Seller Concealed

On Monday, the court said the builder of a do-it-yourself home improvement who has transferred possession of the home cannot be sued for negligent construction unless the seller concealed the danger or knew of a hidden danger and failed to disclose it.

“This is an enormous relief,” Marion Kubichan said Tuesday. “The idea that we could be held liable was just incomprehensible.”

The child’s parents, Stephen and Cynthia Preston, sued. They had sued for $8 million for medical and other expenses to take care of their child, Clinton, who now is a paraplegic.

The Prestons now live out of state and could not be reached for comment.

The Prestons’ lost their case in Los Angeles Superior Court. Their suit claimed that the couple had built the small pond improperly by not including an adequate protective barrier.

In February, 1985, a state Court of Appeal in Los Angeles ruled that the Prestons could press the suit.

But the state Supreme Court noted that the former owners had no control over the property when the injury occurred and could not have taken precautions at the time to prevent it.

“In contrast to the professional builder or contractor, who in all likelihood carries extensive insurance as part of doing business, the ‘do-it-yourself’ homeowner is unlikely to contemplate that his weekend project may expose him to liability for an unlimited time,” Justice Malcolm Lucas wrote in the majority opinion.

Similar Suits Not Ruled Out

The other two members of the seven-justice court, Joseph Grodin and Chief Justice Rose Bird, agreed that the suit should be dismissed but on the narrower ground that the jury in the case had made findings effectively clearing the builders of the pond of any responsibility for the injury. They said a suit against a former owner might be allowed in a different case.

Edward Rasch, an attorney for the Kubichans, applauded the decision and said that the court “may be sending out a message regarding the personal liability of a homeowner.”

“The Kubichans made an improvement to their home, one that did increase the home’s value,” Rasch said. “In the past, courts have said doing something like that is for profit’s sake and that business standards apply, like a company selling something that later breaks or causes injury.

. . . I hope the court is telegraphing what it may do in the future.”