Most personal injury appellate opinions involve a high level of human suffering. If you stopped and connected with every opinion that involved human suffering, you would spend all day looking into the abyss. Every wrongful death case is awful. But this appellate opinion last week from Indiana just has unbelievably depressing facts.
A woman asks the defendant, her boyfriend’s stepfather, if she and her children – ages 3 and 4 – can stay with him. He says no. But while he is away, she has a pool party at his house. He comes home and says what you think he would say: “Get out.” She asks if she can stay until the morning after breakfast. Defendant reluctantly agrees.
Defendant goes to work in the morning. Defendant’s stepson lets the boys play outside around 10:30. Mom was, of course, still asleep. She wakes up, sees the kids playing outside, and goes back in the house leaving them to play by the pool. The woman comes back to find her son, but can’t locate him. They look everywhere until it finally occurs to them that he might be in the pool. The boy is at the bottom of the pool. He was taken off life support the day after the incident when it was determined that he was brain dead.
It is easy to be judgmental of other parents. You have to try to fight the compelling urge to judge because you can’t put yourself in anyone else’s situation. Walk a mile in their moccasins and all of that. But I don’t have any energy to fight that judgmental feeling on this one.
Of course, a child wrongful death claim was brought against the poor stepfather for alleged negligence for lack of fencing between the home and the pool, lack of a safety cover over the pool, and lack of supervision around the pool. Who brought the claim? The boy’s father. Which is kinda funny since his parental rights were terminated in exchange for non-enforcement of any child support obligation. (You get bonus Judgmental Ron.)
Seriously, after you file suit in this case, don’t you go home and take a shower? This was a garbage case. When we started this firm 10 years ago, we would have taken almost anything and we still never would have taken this case, even as a “try to get a settlement” bluff, which is probably how this started. And this guy is suing his stepfather. I realize he is really suing an insurance company, a mantra I have repeated many times. Still. I find maddening the public perception that our courts are filled to its gunwales with greedy plaintiff’s lawyers and miscreant plaintiffs with their hands out at every turn, regardless of the facts. It is unfair to my clients. But I can see how stories – which I think are a small minority of cases – inform public perceptions of personal injury plaintiffs.
Okay, enough of the depressingly philosophical and back to this case. The Indiana Court of Appeal said what you think it would say, blaming the mother for allowing her three-and four-year-old sons to play in the backyard unattended and within close proximity to the pool.” The court also said it was a jury question whether the father had abandoned the right to bring a claim by relinquishing all of his parental rights.
In a footnote, the court pointed out that the CDS says there is “an 83% reduction in the risk of childhood drowning with a four-sided isolation pool fence, compared to three-sided property-line fencing.” Most vacation houses with pools are like this now. Definitely something work keeping in mind, particularly if you have young kids that don’t swim.
You can find the Court of Appeals of Indiana opinion in Androusky v. Walter here.