Case study in liability

This will be fun. I'm seeking the non-lawyer thoughts from folks concerning a liability issue.

Facts:
17 year old is invited to an apartment complex at 1 a.m.
17 year old, 17 year old#2, 16 year old #3, and 19 year old #4 go into the pool area.
Smoking dope, sex, and skinny dipping.
17 year old somehow hits head and goes under water.
#2, #3, and #4 don't realize #1 is underwater and she drowns.
#2 and #3 run. #4 hauls her out of the water and, seriously, hides her under pine straw mulch near the pool.

Pool had fence with lock on gate, but lock was broken and gate was open.
No signs posting hours at the pool.
No signs saying "no lifeguard on duty" or "swim at your own risk"
No rope separating the 3 foot area from the 5 foot area.

17 est mort. #4 is in jail on some manslaughter charge.

QUESTION:

Does apartment complex have any liability?

 

Common sense seems to suggest that the lack of lifeguard on duty at 1am is not only self-evident (given the teens could presumably see for themselves there was no lifeguard) but to be expected. I don't imagine they would have gone for the dope, sex or skinny dipping under the watchful eye of a lifeguard. So on that basis it's probably safe to say they could reasonably be expected to know they were up to no good.

Had it been a small child who wandered away from parents and ended up falling in the pool and drowning I can see a different argument being used, namely that a toddler can't be expected to understand the danger and the broken lock and open gate indicate a failure to maintain safety. I suppose that in turn creates an obvious question about when an individual can be expected to take responsibility for their own safety and know that a broken lock indicates something that should be secured and off-limits, even if the lock is demonstrably failing in its obvious sole purpose.

Does a rope separating the 3-foot area from the 5-foot area (I'm assuming you're talking about the water depth here) make any practical difference? Someone who hit their head and fell in the pool could have drowned in water much shallower than 3 feet, so I'm not sure that makes a difference.

The lack of signage indicating pool hours doesn't seem relevant here. I can't imagine people going for the dope, sex and skinny dipping if they thought the pool was open and another resident might just wander in for a swim. I think you'd struggle to claim that they thought the pool was open to all and sundry and just felt like getting it on during a quiet time, figuring they'd get their swimsuits on fast if anyone walked in.

In a case like this, dealing with people who should be old enough to figure out for themselves that there was no lifeguard, my thoughts are that the complex should have minimal liability. I suspect the legal perspective will be different though. Arguably if the lock had been broken for some time it suggest a lack of maintenance (and therefore a lack of care) on the part of the apartment complex, although if the breakage was very recent one would have to ask whether it was already broken or if the teenagers broke it so they could get at the pool.

I'm not sure how #4 ends up on manslaughter charges, if it really was little more than teenage exuberance willingly enjoyed by all until it went tragically wrong.

 

Thanks for taking the time. Common sense, indeed.


I'll hold off on any of my comments until others have a change to bloviate.

 

I also don't see how #4 can be charged with manslaughter other than they are legally the only adult and theoretically responsible. The property is another thing. The lack of signage and broken lock speaks of negligence, even if common sense says that it should be obvious that there is no lifeguard. Common sense isn't common.

 

I agree with much of what tango said, however, like Cloudwalker just stated, I am going to say that I think the apartment complex will have some liability here because it does not appear that they took all precautions regarding the pool, as you laid out in the fact list (signage, broken lock, open gate).

 

You are all spot on. Tragic situation.

I'm meeting with the mother this afternoon. The legal analysis here is convoluted at best, but its one of those in which you should be able to survive summary judgment and then probably reach a settlement. The purpose of these types of actions is not to compensate the loss of the drowned person (as money can never do that), but to hopefully keep the individual complex and the industry in general honest in taking the legally required protective measures.

Sad all the way around.

 

Would "legally required protective measures" have actually done much protecting here? A working lock might have done, although I remember a young peoples' vacation during my teenage years when a few of us snuck out after lights out and picked the (cheap) lock securing the pool area because we were curious what was in there. It's hard to see how signs would have changed anything - presumably anyone could see there was no lifeguard and even hormone-fueled teenagers seem unlikely to freely partake of dope and sex if they thought the pool was open and they could be disturbed without warning.

 

Just another part of the legal fiction that is the United States civil justice system (which is often not civil and very often not just). What PRACTICAL effects such actions/things would have is certainly questionable under the circumstances. The courts also look at "comparative negligence" and "assumption of the risk" in the analysis.

The legal standard is "did the pool owner have superior knowledge of the risks of the pool" when compared to the teenager. For example: how deed is the pool? Can you see the bottom? If you get in trouble is there a lifeguard? Is there a telephone by the pool to call 911? All sorts of stuff.

IF you put up the legally required signs, life saving equipment, locks, etc., the law presumes that the pool owner has properly passed on their knowledge of the risks inherent with the pool to the reader. Failure to do so exposes the property owner to liability.

 

The last paragraph is very important, because I suspect there are laws or regulations on the books for apartments or other places where the pool is considered common property that must be followed.

 

I can see that the pool owner has superior knowledge of the risks involving water depth, but given you can drown in a foot or less of water I'm not sure how that's relevant. Likewise the issue of whether or not you can see the bottom - assuming the water is clean enough to be desirable for swimming the ability to see the bottom doesn't mean it's not so deep you can't get into difficulty.

Whether or not there is a lifeguard should be self-evident - if there is a clear lifeguard station with nobody sitting in it then it's not a huge leap of faith to figure there isn't a lifeguard on duty; if there is no apparent place for a lifeguard to sit at all it's reasonable to assume there's no lifeguard on duty at any time. If you've snuck in and the place is quiet enough to be skinny dipping and having sex it seems reasonable to conclude you know that nobody is watching. I'd also assume people can see for themselves whether there's a telephone, even ignoring the likelihood that four teenagers probably have at least four phones between them at any given time.

Not trying to out-lawyer the resident lawyer here, I'm just really struggling to see how putting up a sign would have changed anything at all here. A working lock might have changed things but just not seeing it with the signage.

 

I think you've hit the point.

It wouldn't have changed anything in this situation

Just an exampl of how a civil justice system tries to smooth out the anomalies while recognizing that it is not not necessarily either civil or just.

But it is determinative and final and avoids pistols at 10 paces

 

In some settings I can see how concepts like "superior knowledge of risks" are relevant but it seems to me we need to move a lot more towards ideas like "figure it out". It's not like water doesn't present a drowning hazard just because there isn't a sign saying "swim at your own risk" - who normally takes the risk if you get into difficulty? Even if there is a lifeguard there's no guarantee they will be able to save you, all it offers is the assurance that someone else will make an effort to save you. Whether the pool is notionally "open" or "closed" doesn't make hazards go away. If there's usually a lifeguard but the stand is deserted a sign saying there's no lifeguard doesn't change anything.

Even if the incident involved toddlers rather than teenagers, and it were far more reasonable to argue that toddlers don't understand the risks inherent in bodies of water, it's not as if a sign that says "swim at your own risk" means anything to a toddler anyway. The issue of the lock would become a larger factor then but even so there has to come a point at which parents have to take responsibility for supervising children. It's not as if anyone deserves a tragedy for taking their eyes off their children for the few moments it takes to slip away, but equally it's hard to argue it's someone else's fault if it does happen. We might argue that obvious risks should be mitigated (locking pools, for example) but would it be any different if a toddler wandered into the road and got hit by a car, or wandered away in a wildlife area and got attacked by a coyote or some such?

Instead of a system that tries to assign blame for everything, perhaps there needs to be a greater acceptance that sometimes "stuff happens".

 

Does apartment complex have any liability?

Speaking only towards the death of the 17-year-old, I'd have to say no.

Given that every hypothetical about this scenario has to begin with someone paying attention, when in fact no one was, I don't see the point in going further and thinking about what could have been different about the way the apartment complex did things. A broken lock isn't an invitation to enter.

I also wouldn't prosecute any of the three with manslaughter, though I do think morally they are culpable of something that they ought to be (legally) held responsible for. Whatever that is, it shouldn't ruin their lives.

 

What sort of something do you think they should be responsible for? If you've got a bunch of teenagers being teenagers and it goes tragically wrong, what charge is appropriate beyond a sense of "but for the grace of God...."? I look back at my teenage years and some of the stupid stuff I did and think, with the benefit of hindsight and a fully developed (!) brain, how things could have turned out very differently.

Manslaughter seems like a ridiculous charge given the situation seems to be little more than teenage exuberance that went tragically wrong. The two who fled obviously didn't do anything useful, and the one who pulled a (presumably naked) dead girl out of the pool and hid the body under the mulch was about as useless as it's possible to imagine. That said, given they were all teenagers even if the one who hid the body was technically an adult, it's easy to see how they might panic and do something useless. Assuming the whole thing isn't a cover story hiding a truth like "we lured the girl to the pool, got her high and dumped her in the water" it seems like a teenage mind (especially one that is high on alcohol and/or dope) could conceivably respond by trying to hide the evidence and/or run away from the problem.

 

I'd say they'd be financially on the hook for whatever costs the dead girl's family incur related to her death, and be responsible for community-something-or-other for X number of hours (e.g., awareness raising).

Different story if we found out the girl was lured there, but that's not the scenario.

But for the record: sex, drugs, and skinny dipping, and no one notices that 25% of the people involved was face down in a pool? The suspicion has to be that she was murdered, and I'm assuming that's why there's a manslaughter charge.

 

If the girl was lured there or it could be shown that foul play happened, things are very different.

I agree it's hard to understand not noticing that 1/4 of the people partaking of the sex-and-drugs party were missing but then I guess it would depend on just how much pot was smoked. If it was something as simple as her saying "I need to visit the restroom" and it being a while before anyone noticed she was missing it becomes more understandable.

I'm not sure why one out of the three should be expected to pay things like funeral costs, unless there's some reason to claim that they are somehow more to blame for the death than the other two. If the situation truly was little more than a tragic accident involving young people with impaired judgment the question has to be asked whether anyone is specifically to blame for it.

 

Don't assume that people are supe aware of when someone goes under they will necessarily see it. My wife worked as a lifeguard and drowning people don't make much noise other than the splashing. They can't vocalize because they are too busy trying to breathe and survive (I realize in this case there was a head injury involved). Also, someone at depth may not look like much, and if it was dark out, so much harder to see.

 

Good point here Teddy, although at the same time I think the counterpoint is also reasonable. If you're in a large group and one person goes missing it's easy to see how it might not be noticed. But if you've been involved in sex and smoking with a group of 4 and that group of 4 becomes a group of 3 it seems more reasonable to wonder how nobody noticed.

We didn't get any sense of timing in the original post so perhaps it's possible someone noticed the girl was missing and figured she'd gone to the bathroom, only to then figure she'd been gone a long time and notice the body in the pool when it was too late. I've heard that part of a roadside sobriety test is to estimate 30 seconds (not sure if it's true or not), so maybe the intention there is to check whether someone can totally zone out in a short time. As soon as drugs are involved it seems a lot more likely that "she's probably gone to the bathroom" would turn into zoning out and lighting up another joint than having a specific thought on when she's expected back.