Every summer, news sources report on cases of tragic drowning accidents involving children and pools. It is important to take the necessary preventative steps to protect your children, but sometimes accidents still happen. When they do, it may create liability on the part of the property owner. In one recent Second District Appellate Court case, however, a trial court’s judgment finding the property owner not liable in a toddler’s drowning death was upheld. The courts concluded that the boy died, not due to anything that was foreseeable by the property owner, but due to a tragic misunderstanding between the boy’s aunt and his father regarding his supervision.
The terrible accident that led to this lawsuit started with a simple event: a yard sale in the northern Illinois village of Bartlett on a Friday in June 2013. A family, consisting of nearly three-year-old Edgar, his father, his aunt, his two-year-old cousin, and his grandmother attended the yard sale that day. As the family progressed through the sale merchandise, Edgar’s father decided not to view the merchandise in the back yard. He told his sister to watch the boy because he was headed back to the front of the property. The boy’s aunt did not hear this information, however.
When the family reconvened in the front yard, the father inquired about Edgar’s whereabouts. Eventually, the family found Edgar dead, having drowned in the above-ground pool in the back yard. The boy’s mother sued the homeowner for wrongful death, alleging that the property owner had not done a proper job of preventing children from accessing the pool.
The trial court, however, ruled for the homeowner in this case, granting a summary judgment in his favor. The trial court concluded that the pool in this case was an “open and obvious” hazard. In Illinois, if something is an open and obvious hazard, in most cases, a landowner is not liable for injuries related to that hazard. A hazard is considered open and obvious if a reasonable person, using a normal amount of perception, would have noticed it and appreciated its danger. In Illinois, even very young children are legally presumed to understand the dangers of heights, fires, and water. This includes most pools.
There are situations in which a pool’s existence may not be open and obvious. In a 1996 case, T.T. v. Kim, the court found the property owner liable for injuries children suffered in a pool accident. In that case, the in-ground pool was covered by a tarp that was itself covered by leaves, dirt, and water. This was not something that a reasonable child would be expected to identify as a pool, so that meant that the open-and-obvious rule didn’t apply to that case. In this recent case, the pool where the toddler drowned was an above-ground one. It was clearly visible to anyone who used a normal degree of awareness.
When the open-and-obvious rule applies, there are two exceptions that may still allow a plaintiff to succeed: distraction and a “deliberate encounter.” This mother argued in her appeal that the distraction exception applied to her case, but she was not successful. Her argument contended that the boy’s aunt was distracted, and that was what allowed the drowning to occur. But the aunt wasn’t distracted; she was unaware that the father intended her to supervise the boy. To back up this point, the court pointed out that the woman was sufficiently alert and not distracted, such that she promptly collected her own daughter when that toddler approached the same pool.
Rather than distraction, the court concluded that the proof in this case showed that the cause “boils down to defendant’s inability to foresee that Edgar would be unattended.” Without enough proof to establish that something other than a lack of supervision caused the child’s death, this mother’s case could not proceed.
Any time a child dies in an accident, it is tragic. In some circumstances, though, it may also be tortious, if the landowner did not maintain his property properly to guard against foreseeable risks. The diligent Chicago injury attorneys at Katz, Friedman, Eisenstein, Johnson, Bareck & Bertuca can help you assess your case and determine a proper course for proceeding. To set up a free case evaluation, contact us at 312-724-5846 or through our website.
More Blog Posts:
Protecting Young Athletes from Head Injuries, Chicago Injury Attorneys Blog, Feb. 22, 2016
The Alarming Truth About Wrongful Death Cases in Illinois, Chicago Injury Attorneys Blog, Oct. 9, 2015