Law Review: Who’s responsible for downed child? | SierraSun.com

Law Review: Who’s responsible for downed child?

Jim Porter
Law Review

This is one of those sad cases where a small child drowns in a backyard swimming pool at a neighborhood party, and the courts are asked to decide if anyone is at fault. Not that that is much consolation to the family.

The purpose of writing this column is to remind ourselves to take personal responsibility and be diligent when it comes to protecting children.

BACKYARD SWIMMING PARTY

Alton Trimble and his family hosted a gathering at their home, which included a backyard pool. Tywanna Sanders brought her young son Jaylen. Neither knew how to swim.

Sanders did not bring a flotation device for Jaylen and later testified she rarely required him to use one. During the party Sanders went to the store. She spent most of the day inside the Trimbles' house.

Lesson No. 1: Be responsible for your children.

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Lesson No. 2: Teach your children to swim and learn to swim yourself.

WHO WAS SUPERVISING JAYLEN?

Mr. Trimble watched Jaylen in the "kiddie" pool. When Jaylen's grandfather, Donald Green, a captain for the Los Angeles City Fire Department, arrived he told Trimble he would take over supervising Jaylen. Trimble told Sanders and Capt. Green that Jaylen would have to stay in the kiddie wading pool because he could not swim.

Later, Trimble again advised Capt. Green to keep Jaylen in the wading pool and said, "This is on you. You've got to watch him. He's your responsibility."

Lesson No 3: Be clear who is responsible for the child, not just for liability protection of course, but for the safety of the child. You know what happened.

NEGLIGENT SUPERVISION

Sanders sued the Trimbles for having a dangerous pool and negligent supervision of her son Jaylen.

Cutting to the chase on the claim of negligent supervision, the Second Appellate District Court ruled the homeowner is not responsible for supervising children who are invited on to his or her property where the children's parents are present and supervising or expected to be supervising the child. California courts have ruled that it is the parents' responsibility.

The rule is different where the homeowner has expressly or impliedly agreed to supervise a child while the minor is on the premises. For example, if a child is dropped off at the home of a family hosting a swimming party, the homeowner is generally required to exercise care supervising the child.

The Court of Appeal went on to find that Capt. Green had voluntarily assumed the duty of watching over Jaylen. Capt. Green was a responsible adult, who was not only the boy's grandfather — he was also a fireman.

The Trimbles did not negligently supervise Jaylen.

PREMISES LIABILITY

On the premises liability claim, in California the owner of the property is responsible for an injury caused to another by the owner's lack of ordinary skill in the management of the property. The landowner is required to maintain his or her property in a "reasonably safe condition."

In the case of the Trimble's pool, there was no credible evidence that the yard or the pool itself was dangerous.

The Court of Appeal concluded "close and constant supervision is the only reliable method of keeping young, non swimming children safe in an adult pool." The Trimble's were not responsible for Jaylen's unfortunate death.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, and Reno. His practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.