In Perez v. Heffron, the mother of a boy who drowned in a swimming pool accident appealed an order for the trial court granting summary judgment in the defendant’s favor. The background facts are as follows. In June 2013, the defendant conducted a yard sale at his home in Bartlett. A man visited the sale and brought his son Edgar with him, who was nearly three years old. His sister and their parents were also at the yard sale, along with his niece, who was two.
Photographs admitted at trial showed the side, front, and backyard of the defendant’s home on the day the accident occurred. There were sale items located on the ground and lying on tables displayed in the front yard. There was a cement walkway that led to the backyard through a side yard that was narrow. The backyard featured an above-ground swimming pool constructed of durable material and anchored permanently. On the side of the pool that faced the walkway, there were several hoses and filters attached to the pool. There was a deck that provided access to the pool next to the side of the pool, with stairs from the deck leading to a rear patio setting.
To obstruct shoppers from getting to the deck stairs, the defendant placed a clothes rack in front of it. There was a plastic solar cover over the pool. The defendant testified that a child standing on the deck would not be able to see water in the pool through the solar cover.
On the day of the accident, the decedent was playing in the front yard while his family shopped at the yard sale. At a certain point, the sister noticed something strange in the pool but assumed the decedent was with his father. It was then discovered that the boy had drowned. The plaintiff filed an action against the homeowner for wrongful death and survival. It alleged that the defendant’s failure to install a self-latching pool gate, failure to enclose the pool so that it was inaccessible to children, and failure to warn invitees of the pool were negligent.
The defendant filed a motion for summary judgment, stating that he owed no duty to the decedent and that the proximate cause of the decedent’s death was his father’s failure to supervise him. The trial court granted summary judgment for the defendant, concluding that the pool was an open and obvious danger. The plaintiff appealed.
The appellate court upheld the trial court’s ruling, finding that the case turned on the defendant’s inability to foresee that the father and his family would leave the child unattended. The reason the child was unattended was due to a misunderstanding. At one point, the father told his family to watch the child, but they did not hear him.
If you or someone you love has lost their life due to a careless and avoidable act of negligence, you may be entitled to compensation. At Therman Law Offices, our premises liability lawyers know that you and your family are coping with devastating pain and suffering. Our experienced team of wrongful death and personal injury lawyers will stand by you through each step of the lawsuit to ensure that your rights are asserted and that you seek the justice you deserve. Call us now at 315-588-1900 or contact us online.
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