Bennett v. Stanley

748 N.E.2d 41 (2001)

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Nature of the Case

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Facts

P arrived home in the late afternoon of March 20, 1997, to find his two young daughters crying. The three-year-old, Kyleigh, told him that 'Mommy' and Chance, her five-year-old half-brother, were 'drowning in the water.' P ran next door to his neighbors' house to find mother and son unconscious in the swimming pool. Both died. P had moved next door to D, in the fall of 1996. D had purchased their home the previous June. D's property included a swimming pool that had gone unused for three years. At that time, the pool was enclosed with fencing and a brick wall. D drained the pool, but thereafter they allowed rainwater to accumulate in the pool to a depth of over six feet. They removed a tarp that had been on the pool and also removed the fencing that had been around two sides of the pool. The pool was pond-like: it contained tadpoles and frogs. The pool contained no ladders, and its sides were slimy with algae. P rented the house next to the Stanleys. The houses were about one hundred feet apart. There was some fencing with an eight-foot gap between the two properties. D was aware that P had moved next door and that they had young children. They had seen the children outside unsupervised. P had told his children to stay away from the pool on D's property. He also stated that he had never seen the children playing near the pool. Chance had gone to the pool to look at the frogs and somehow fell into the pool. His mother apparently drowned trying to save him. P filed a wrongful death and personal injury suit against D. The complaint alleged that appellees had negligently maintained an abandoned swimming pool on their property and that D's negligence proximately caused the March 20, 1997 drowning of Chance and Cher. P also asserted that D's conduct in maintaining the pool constituted willful and wanton misconduct such as to justify an award of punitive damages. D denied any negligence and asserted affirmative defenses of contributory negligence and assumption of the risk. D filed a motion for summary judgment, which the trial court granted on September 4, 1998. The trial court found that Chance and Cher were trespassers on and that D owed them only a duty to refrain from wanton and willful misconduct. The appellate court affirmed: D owed the decedents only a duty to refrain from wanton and willful misconduct, and added that there was no evidence of such misconduct. This appeal resulted.