Judgment rendered October 2, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,927-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
TAYLOR S. SOUTHERN AND Plaintiffs-Appellants ASHLEY M. SOUTHERN, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, MATTHEW TAYLOR SOUTHERN
versus
DR. JOAQUIN ROSALES AND Defendants-Appellees ABC INSURANCE COMPANY
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 20230628
Honorable Walter Meter Caldwell, IV, Judge
LAVALLE B. SALOMON, APLC Counsel for Appellants By: Lavalle B. Salomon
DAVENPORT, FILES & KELLY, LLP Counsel for Appellee, By: M. Shane Craighead Dr. Joaquin Rosales
Before PITMAN, MARCOTTE, and ELLENDER, JJ. MARCOTTE, J.
This appeal arises from the Fourth Judicial District Court, Parish of
Ouachita, the Honorable Walter M. Caldwell, IV presiding. Appellants-
Plaintiffs appeal the trial court’s ruling granting a motion for summary
judgment filed by appellees-defendants, finding no liability for the injuries
and death of appellants’ minor child. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 16, 2023, husband and wife, Taylor S. Southern
(“Taylor”) and Ashley M. Southern (“Ashley”), individually and on behalf
of their minor son, Matthew Taylor Southern (“Matthew”), filed a petition
for wrongful death and survival damages for the injuries Matthew sustained
by drowning in his neighbor’s pool and his subsequent death from those
injuries. Defendants were Dr. Joaquin Rosales (“Dr. Rosales”), the
Southerns’ next-door neighbor, and ABC Insurance Company, Dr. Rosales’
insurer.
The petition alleged that on February 18, 2022, Taylor and Ashley left
their home on Forsythe Avenue in Monroe, Louisiana, to drive Ashley to
work. When Taylor returned home, he saw his nephew, Griffin Woods
(“Griffin”), outside with Naomi Jackson (“Jackson”), an adult relative who
was visiting the home, looking for his son Matthew, aged 6. Matthew had
been missing for about 15 minutes.
Dr. Rosales lived next door to the Southerns and had a pool in his
backyard. Taylor saw that the door to defendant’s yard was open; he ran to
the pool and saw Matthew at the bottom of the pool. Taylor pulled Matthew
from the pool and administered CPR while waiting for paramedics. Matthew was unresponsive. Matthew was taken to the hospital and placed
on a ventilator. He remained on a ventilator for seven days. He was taken
off the ventilator and died two days later.
The Southerns alleged that Dr. Rosales was negligent for failing to
properly secure the fence and gate to his pool and property, failing to protect
children from an attractive nuisance and from an unreasonably dangerous
condition, and failing to take reasonably prudent measures for the protection
of young children. Defendants answered the petition and denied plaintiffs’
claims.
Following discovery, on September 15, 2023, Dr. Rosales filed a
motion for summary judgment asking that plaintiffs’ claims be dismissed.
In his memorandum in support of his motion, Dr. Rosales stated that on
February 18, 2022, he and his wife, Cymantha, left their home at 3604
Forsythe Ave. to visit a relative in Mississippi. At that time, Dr. Rosales’
backyard was enclosed by an eight-foot tall, plank privacy fence which was
accessible by two spring-loaded gates with latching mechanisms. Both gates
were secured when the couple left their home on the morning of February
18, 2022. That afternoon, Dr. Rosales received word that a child was found
unconscious in the deep end of his swimming pool located in his backyard.
Dr. Rosales stated that he was not aware that any children would be present
on his property during his absence and neither he nor his wife gave
permission for any child to come onto their property.
Dr. Rosales stated that when Taylor and Ashley went to work, Griffin,
Taylor’s nephew, was the primary custodian of the six minors that resided at
the Southerns’ home at 3602 Forsythe Ave; the minors were aged 2, 5, 7, 8,
2 10, and 13.1 The children were off from school on February 18, 2022, and
Griffin was watching them. Matthew spent the previous night with his
grandfather, Daniel Tripp (“Tripp”), who dropped Matthew off with his
parents shortly before they left to take Ashley to work. Before leaving,
Ashley told Griffin to bathe, dress, and pack for their five-year-old child to
stay with Tripp that evening. Griffin and the five-year-old did so upstairs.
The only other minors present at the home at that time were a two-year-old,
Matthew, and an eight-year-old, who were all downstairs.
Matthew went upstairs, asked Griffin if he could play basketball
outside in the driveway, and then went back downstairs. Tripp returned to
the house and left with the five-year-old. Griffin then searched inside and
outside the house for Matthew. Griffin contacted Tripp and either Taylor or
Ashley to see if they had Matthew. In the meantime, Jackson arrived at the
home and assisted in the search. Taylor came home and saw that the gate to
the Rosaleses’ backyard was slightly ajar. Matthew was discovered in the
deep end of the pool.
Cymantha provided an affidavit which stated that the front gate to
their backyard sat at the right front corner of their privacy fence, was six feet
tall, and had a spring-loaded latching mechanism. She averred that prior to
leaving their home on February 18, 2022, she pulled on that gate and the
other gate to ensure that they were closed and latched, which was her
practice before leaving home. The Rosaleses returned home the next day
and Cymantha took photographs of items that were present in her backyard
1 At the time they filed their motion for summary judgment, defendants believed Mathew was seven years old when he died. He was six years old.
3 area that were not there when they left the home the previous day. Several
of the photographs that Cymantha took were attached to defendant’s motion.
They depicted Matthew’s personal belongings around the pool, which
defendant suggested showed that Matthew was unsupervised for quite some
time before he was discovered in the pool.
Griffin gave deposition testimony that he was the primary caretaker of
the children, even when Taylor was at home, and the children often did not
listen to him. Dr. Rosales stated that Louisiana law did not require that a
landowner create and maintain locked barriers around water bodies on his
property, especially in relation to unknown and uninvited guests. He also
contended that the presence of a body of water did not constitute an
unreasonably dangerous condition or an attractive nuisance.
Plaintiffs opposed the motion stating that Dr. and Mrs. Rosales were
familiar with the Southern family because they had lived next door to them
for several years. Matthew had never been to the Rosaleses’ property to
swim and their home did not have any “No Trespassing” signs placed on the
property. Plaintiffs argued that, while the gate to the backyard of the
Rosales’ home had a latch on it, it was not locked. Plaintiffs acknowledged
that Matthew did not have permission to be on the Rosaleses’ property.
Plaintiffs argued that Dr. Rosales had a duty to prevent access to his
property by installing a lock on the gate to his backyard and pool because
there were very young children living next door.
Plaintiffs contended that Matthew was required to exercise only the
self-care expected of his age, intelligence, and experience under the
circumstances presented to him. A child’s carelessness in entering an
4 unfamiliar pool was one of the risks against which the pool’s owner had a
duty to take precautions. Matthew was unfamiliar with the Rosaleses’
backyard and pool, and a lock on the gate would have prevented him from
entering the pool.
Plaintiffs stated that for the attractive nuisance doctrine to apply, the
following circumstances had to be present: (1) the injured child must have
been too young to appreciate the danger; (2) there must have been reason to
anticipate the presence of children because of some attraction on the
defendant’s premises, or some danger where the children had a right to be;
(3) the instrumentality causing the injury presented the strong likelihood of
an accident; (4) the danger must have been one not ordinarily encountered;
and (5) the defendant failed to take reasonably prudent precautions under the
circumstances.
Plaintiffs argued that every requisite of the attractive nuisance
doctrine was met in this case: (1) Matthew was six years old and too young
to comprehend the danger involved in his actions; (2) the pool was located in
a residential neighborhood and defendants knew their neighbors had children
of various ages; (3) the pool was not inherently dangerous, but it was deadly
for a person who could not swim; and (4) Matthew did not face the dangers
of falling into a pool on a daily basis. Plaintiffs argued that a lock was all
that would have prevented Matthew’s death.
Plaintiffs stated that prior to Matthew’s accident, there were no
problems that indicated that Griffin was incapable of babysitting the
Southern children. Plaintiffs attached to their opposition Griffin’s
deposition testimony, Ashley’s affidavit, and Cymantha Rosales’ affidavit.
5 Ashley stated in her affidavit that she had never known Matthew to go over
to the Rosaleses’ home unaccompanied or without permission.
Following argument, the trial court granted summary judgment
stating:
I think based on the law presented to the court…there is no obligation outside the fact that the gate is closed for it to be locked. I think counsel for the Rosales has adequately pointed out that it begins to become problematic. What about a trampoline? What about a treehouse? Or any uninvited guests that enters a property simply because it was not locked? I haven’t seen any case law. I haven’t seen any statutory models that require that the gate be locked. …[T]he evidence put into the record is that it was traditionally, the enclosure was maintained traditionally. Mrs. Rosales stated in her affidavit how they handled that. [There has] been no information to dispute that. [Plaintiffs’ counsel] has placed on the record the argument, well, it was ajar that day so, it’s a question of whether they had actually left it open that day, but Mrs. Rosales says we traditionally did that. It would have been what we would have done. Absent any obligation that they—and I tend to believe that because of the recitation of the facts regarding that when they noted that the gate was ajar that they knew some—that’s immediately where they searched because that leads me to believe that they know that typically that gate is shut. That’s how they observed it in the past.
On January 25, 2024, the trial court signed a judgment granting Dr.
Rosales’ motion for summary judgment and dismissing plaintiffs’ claims
with prejudice. Plaintiffs now appeal.
DISCUSSION
On appeal, appellant argues that the trial court erred in 1) determining
Dr. Rosales’ duty as a landowner, whether he acted as a reasonable person
when considering the probability of injury to others in the management of
his property; 2) finding that there was no material question of fact to show a
breach of duty by defendants; and 3) concluding that the attractive nuisance
doctrine was inapplicable to the facts of this case.
6 Motion for Summary Judgment
A motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue
as to material fact and that the mover is entitled to judgment as a matter of
law. La. C.C.P. art. 966(A)(3). The summary judgment article further states:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
La. C.C.P. art. 966(D)(1).
A fact is material if it potentially ensures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the legal
dispute. Maggio v. Parker, 17-1112 (La. 6/27/18), 250 So. 3d 874;
Dickerson v. RPM Pizza, LLC, 55,739 (La. App. 2 Cir. 7/17/24), __ So. 3d
__, 2024 WL 3434817.
A summary judgment is reviewed on appeal de novo, with the
appellate court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate, i.e., whether
there is any genuine issue of material fact, and whether the movant is
entitled to judgment as a matter of law. Samaha v. Rau, 07-1726 (La.
2/26/08), 977 So. 2d 880; Dickerson v. RPM Pizza, LLC, supra.
7 Landowner’s Duty
Under the duty/risk analysis, the plaintiff must prove five separate
elements: (1) the defendant had a duty to conform his conduct to a specific
standard (the duty element); (2) the defendant's conduct failed to conform to
the appropriate standard (the breach element); (3) the defendant's
substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-
in-fact element); (4) the defendant's substandard conduct was a legal cause
of the plaintiff's injuries (the scope of duty element); and, (5) proof of actual
damages (the damages element). Id., (citing Boykin v. Louisiana Transit Co.,
Inc., 96-1932, pp. 8-9 (La. 3/4/98), 707 So.2d 1225, 1230).
Duty is defined as the obligation to conform to the standard of
conduct associated with a reasonable person in like circumstances. Id. The
test to determine if a breach of a landowner’s duty has occurred is whether,
in the management of his property, he has acted as a reasonable person in
view of the probability of injury to others. Richardson v. ASI Lloyd’s,
50,976 (La. App. 2 Cir. 9/28/16), 206 So. 3d 349; Collins v. Whitaker,
29,324 (La. App. 2 Cir. 4/2/97), 691 So. 2d 820. In a negligence action,
each inquiry must be affirmatively answered for plaintiff to recover.
Richardson v. ASI Loyd’s, supra.
In Collins v. Whitaker, supra, the court stated that it is foreseeable that
a landowner with a pool will allow others to enjoy it. A landowner or
custodian owes a duty to his guests to discover any unreasonably dangerous
condition or use of his premises and either correct the condition or warn of
its existence. Socorro v. City of New Orleans, 579 So. 2d 931 (La. 1991). A
swimming pool, when properly used, is not unreasonably dangerous and
8 does not constitute an unreasonable risk of harm in most circumstances. The
danger presented, i.e., the risk of drowning, is an open and obvious one.
Collins v. Whitaker, supra.
In Richardson v. ASI Loyd’s, supra, the trial court found in favor of
the defendant landowner when a minor child drowned in his pool during a
pool party. The landowner allowed his girlfriend, Ms. Walton, and her two
adult children, in his absence, to host a pool party for children. Ms. Walton
could not swim, of which the defendant was aware, but her two adult
children could. The defendant knew that the two adult children were
typically present when pool parties occurred and that they were present on
the day of the party at issue. He also knew that there were adequate life
vests available for adults and children at the party, and he told Ms. Walton to
be very careful with the children in the pool and insisted that the children not
go in the pool without life vests.
Ms. Walton testified that she snapped each child in a life vest and
personally put her own life vest on the victim before he entered the pool.
Her adult son testified that the minor victim was wearing a life vest when he
(the adult son) exited the pool.
This court stated:
Although the facts of this case are tragic and a very young person lost his life, in deciding this case, the trial court stated that there was no evidence that “but for” Ms. Walton not being a swimmer, this drowning would not have occurred. We also note that, as the trial court pointed out, children drown even when lifeguards are present. The trial court based its decision on reasonable evaluations of credibility and inferences of fact. After review, we cannot say the decision was manifestly erroneous or clearly wrong.
9 Appellees cite Wiley v. Sanders, 37,077 (La. App. 2 Cir. 6/13/03), 850
So. 2d 771, writ denied, 03-1986 (La. 10/31/03), 857 So. 2d 487, where a
19-year-old drowned in a muddy pond during an unauthorized party hosted
by the landowner’s son while his parents were away from the home.
This court said in its opinion:
[A property owner] cannot be held responsible for all injuries resulting from any risk posed by his [property], only those caused by an unreasonable risk of harm to others. The absence of an unreasonably dangerous condition of the property implies the absence of a duty.
Under either theory, negligence or strict liability, the plaintiff must prove that the defendant had custody or garde of the thing which caused the damage, that the thing contained a defect (a condition posing an unreasonable risk of harm to the plaintiff), and that this defective condition caused the plaintiff’s injuries.
When determining whether a risk is unreasonable, a court is to balance the likelihood and magnitude of the harm and the utility of the thing, while also taking into account a broad range of social, moral, and economic factors including the cost to the defendant of avoiding the risk and the social utility of the plaintiff’s conduct when the accident occurred. Justice and social utility are guideposts, with consideration given to individual and societal rights and obligations. (internal citations omitted).
Id. at p. 3, 850 So. 2d at 774.
The pond in Wiley was saucer-shaped, becoming gradually deeper
toward the middle which was about eight feet deep. The victim was six feet
tall. There was no fence around the pond, nor were there any markers or
signs designating the various depths of the pond. The only artificial light
provided for the pond was from a light in the front yard of the house, which
only illuminated part of the pond. A witness testified that on the night of the
drowning, there was enough natural light for him to see the other people out
in the pond. The landowner did not feel that there was any need to provide a
10 lifeguard because his children were able to swim. He assumed that everyone
who went near the pond would exercise good judgment, and he generally
told guests not to get in the pond if they could not swim. Id.
This court found that the pond did not pose an unreasonably
dangerous condition to the 19-year-old victim. This court said, “The only
danger presented by the pond was that it contained water. Such a danger
would have been open and obvious to Robert Wiley when he entered the
pond.” Id. at p. 8, 850 So. 2d at 776. This court found that the defendant
landowner had not breached any duty owed to the victim. This court pointed
out that the landowner was not present on the date of the drowning and had
no knowledge that his son organized a party at his home. Wiley v. Sanders,
supra. This court also said that the 19-year-old victim, “had he exercised
reasonable care, should have observed that he could drown in a pond filled
with water.” Id. at p. 9-10, 850 So. 2d at 777.
Appellees also cite Brooks v. Sibille, 13-1015 (La. App. 3 Cir.
2/12/14), 153 So. 3d 1121, writ denied, 14-0543 (La. 4/25/14), 138 So. 3d
648, where the courts found in favor of the defendant landowners. In that
case, two 12-year-olds drowned in a murky pond after trespassing on a
landowner’s property while the landowner was absent.
The Third Circuit stated:
[W]hile defendants had garde over the pond, the only potential danger was the presence of murky water giving rise to undefined depths. Following the reasoning of the Wiley court, these are open and obvious dangers that do not constitute unreasonable risks of harm. As such, the defendants did not owe a duty to warn against such hazards.
Since the pond did not constitute an unreasonable risk of harm, the question now becomes whether the defendants breached a duty to act reasonably. The test to determine whether a breach
11 of a landowner’s duty has occurred is whether, in the management of his property, he has acted as a reasonable man in view of the probability of injury to others. Here, there is no evidence to support the claim that the defendants breached a duty to act reasonably. While there is evidence to suggest the drowning victims were below average intelligence to potentially deduce the dangers of the pond, these facts are not material as the defendants were not acquainted with these minors and would not reasonably expect them to trespass and swim in the pond without supervision. The defendants were not home during the incident and had no knowledge that [one of the victims] would visit the property or bring other minors with him. To charge the defendants with the burden of guarding against every potential individual of varying intelligence trespassing and drowning goes beyond reasonable levels of justice and social utility. (internal citations omitted).
Id. at p. 5-6, 153 So. 3d at 1124-25.
Appellants cite Simmons v. Whittington, 444 So. 2d 1357 (La. App. 2
Cir. 1984), writ denied, 447 So. 2d 1071 (La. 1984), as being instructive in
this matter. In Simmons v. Whittington, supra, a nine-year-old, who could
not swim, drowned in a neighbor’s above-ground pool while the landowner
was away from home. The pool was partially enclosed with an incomplete
fence, it did not have a uniform depth, and no signs on the pool indicated the
change in depth. The child’s mother was unaware that her neighbors had the
pool. This court found that the landowner had a duty to take precautions
against a child’s carelessness in entering a pool with which he was
unfamiliar. This court said:
There is no question that this recreational pool erected by defendants was attractive and alluring to children. In fact, testimony at trial indicated that Mrs. Whittington had asked children to leave the area in the past. They therefore should have been aware that children would be attracted to the backyard pool in their absence and also aware of the danger posed by the configuration of the pool bottom.
As pointed out by the Louisiana Supreme Court in Guillot v. Fisherman’s Paradise, 437 So.2d 840 (La. 1983), the creation or maintenance of an unreasonable risk of injury to others gives
12 rise to actionable negligence. The seriousness as well as the likelihood of the harm that may be caused is relevant in determining whether the risk is unreasonable.
Exposed pools or bodies of water with no enclosure or barricade present a great risk of drowning to young children because of their natural attraction to such areas. (internal citations omitted).
Simmons v. Whittington, supra, 444 So. 2d at 1360.
Wiley v. Sanders, supra, and Brooks v. Sibille, supra, are similar to
this case in that the landowners were not present when the drowning
occurred, and they also had no knowledge that anyone would be present on
their property. However, the ages of the drowning victims in those cases, 19
years old and 12 years old, can be contrasted with Matthew’s young age of 6
years old. Wiley v. Sanders, supra, and Brooks v. Sabille, supra, also
involved open ponds that were not enclosed. Dr. Rosales’ pool had an eight-
foot privacy fence and gates that were latched prior to Matthew’s tragic
drowning.
Appellants state that this case can be compared to Simmons v.
Whittington, supra, in that a six-year-old child could access the Rosales’
pool at any time, even though it was enclosed by a fence which contained a
latched gate, and Matthew was unfamiliar with the pool. We note that, like
the child in Simmons, Matthew was a trespasser on the Rosales’ property.
However, we point out that in Simmons, the neighbor’s pool was not fully
enclosed with a fence and neighborhood children had already shown interest
in the pool. The landowners had directed those children away from their
property. The Rosales’ pool was fully enclosed by a fence with gates that
they kept shut and latched. There is no indication here that Dr. or Mrs.
Rosales ever had to turn children away from their property due to an interest
13 in their pool or invited any neighborhood children to their pool. There is
nothing in the record that shows that Matthew was aware of the pool prior to
the date of his drowning. Matthew’s mother stated in her affidavit that she
had never known Matthew to go onto the Rosaleses’ property
unaccompanied. Mrs. Rosales stated in her affidavit that she made sure the
gates were shut and latched before they left to go out of town.
Furthermore, La. R.S. 4875.1(A) states in part:
For the purpose of promoting the health, safety, and general welfare of the community, parish and municipal governing authorities may adopt ordinances regulating the enclosure of residential and commercial swimming pools. The ordinance shall provide for minimum heights for fences or walls enclosing the pool and locking or limited access gates.
Therefore, the state grants municipalities the authority to require that
swimming pools be enclosed with fencing and access to pools be restricted
by a locked gate. Monroe, La. Code Ordinances § 37-76(i)(2) provides that
every swimming pool of 5,000-gallon capacity or greater must be protected
by a safety fence of at least 6 feet in height. The ordinance does not require
that any gates or access points to pools be secured by locked gates. This
court was also unable to find any case law which requires that the
landowners of residential swimming pools maintain locked gates or
entryways to their pools.
We find that the Rosaleses’ swimming pool was maintained in a
reasonable manner and did not present an unreasonable risk of harm. The
pool was enclosed by an eight-foot privacy fence and gates that were closed
and latched at the time the Rosaleses left their property on the date of
Matthew’s unfortunate drowning. The Rosaleses did not have a duty to
install a locking mechanism on the gates to their backyard area in case a
14 child should happen to wander on to their property. “Failure to take every
precaution against every foreseeable risk or to use extraordinary skill,
caution, and foresight does not constitute negligence or contributory
negligence.” Smolinski v. Taulli, 276 So. 2d 286, 290 (La. 1973); Turner v.
Caddo Parish Sch. Bd., 252 La. 810, 214 So. 2d 153 (1968). Appellants’
first two assignments of error lack merit.
Attractive Nuisance
For there to be a case under the attractive nuisance doctrine there must
appear:
1. That the injured child was too young to understand and avoid the danger.
2. That there was reason to anticipate the presence of such children, either because of some attraction on the premises, or because the danger was in some place where children had a right to be.
3. That there was a strong likelihood of accident.
4. That the danger was one other than those ordinarily encountered.
5. That the precautions not taken were such as a reasonably prudent person would have taken under the circumstances.
Beasley v. Guerriero, 123 So. 2d 774, 777 (La. App. 2 Cir. 1960).
Generally, the doctrine of attractive nuisance is to be accorded limited
application and employed by the courts only with caution. Woods v. Winn-
Dixie Stores, Inc., 22-0191, p. 13 (La. App. 1 Cir. 9/16/22), 353 So. 3d 182,
193.
In Fincher v. Chicago, R.I. & P. Ry. Co., 143 La. 164, 78 So. 433 (La.
1918), a railroad was not held liable under the attractive nuisance doctrine
for the death of a little girl by drowning in a pool of water on its right of
15 way, which was out of sight and invisible to the child except when
trespassing on its tracks.
In Saxton v. Plum Orchards, 215 La. 378, 40 So. 2d 791 (1949), the
Louisiana Supreme Court found that a pool of water 4 to 10 feet deep
constituted an “attractive nuisance” that rendered the owner liable for the
death of a four-year-old girl by drowning therein. The pool had vertical
banks and contained small timbers, sticks, and marine life. It was clearly
visible and readily accessible from nearby streets and dwellings in which
numerous small children resided, and it could have been eliminated or
fenced at a reasonable expense.
In Thompson v. Ewin, 457 So. 2d 303 (La. App. 3 Cir. 1984), writ
denied, 460 So. 2d 1043 (La. 1984), the property owners were not held liable
under the attractive nuisance doctrine to the parents of an 11-year-old boy
who drowned in their pool, as the child was old enough to appreciate the
danger of drowning, since he was instructed by his parents to wear a life
preserver when around water. The court also found that the location of the
pool and the fact that it was shielded from public view made it unreasonable
for the property owners to expect it to attract children of tender years to their
premises. Id.
The attractive nuisance doctrine requires that there must be reason to
anticipate the presence of children because of some attraction on the
defendant’s premises or some danger where the children had a right to be.
Ashley’s affidavit established that she was unaware of any other times that
Matthew went onto the Rosaleses’ property unaccompanied or without
permission. Cymantha Rosales stated in her affidavit that none of the
16 children had permission to go onto the Rosaleses’ property and she had no
knowledge of them doing so.
The Rosaleses’ swimming pool was a standard swimming pool
located inside an eight-foot privacy fence with a latched gate. The couple
had no reason to expect a six-year-old child to enter their backyard area
without supervision and the pool was hidden from public view. Appellants
once more cite Simmons v. Whittington, supra, in support of their assertion
that the Rosaleses’ pool constituted an attractive nuisance. We must again
point out that the pool in Simmons was not fully enclosed by a fence and the
property owners had sent curious children away from their pool in the past.
That is not the case here. Matthew was a trespasser who entered the
Rosaleses’ enclosed property without their knowledge or permission.
Matthew’s mother never saw Matthew enter the Rosaleses’ property
unaccompanied and the record is devoid of evidence of Matthew’s previous
interest in the pool. This assignment of error lacks merit, and the trial court
did not commit manifest error in granting defendant’s motion for summary
judgment.
CONCLUSION
The trial court’s ruling granting defendant’s motion for summary
judgment is affirmed. The costs of the appeal are assessed to appellants.
AFFIRMED.