Mozier v. Parsons

887 P.2d 692 (1995)

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Nature of the Case

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Facts

Moziers (Ps) were social guests at the home of Parsons (D). D had completed the installation of a swimming pool on their property just two weeks earlier. Those present had been swimming in the pool during the afternoon and then returned to the house for supper. Sometime after supper, Emily left the house. She was later found floating in the pool. She was not breathing and had no heartbeat. Resuscitation efforts at the poolside and the hospital served only to restore breathing with the aid of a respirator. Heartbeat was restored after emergency treatment at the hospital. Emily never regained consciousness but did blink her eyes and make some slight movement. She died two days later. Emily was a generally well-behaved 3 1/2-year-old girl who listened to her parents and other adults. Emily was told by her parents and D not to go near the pool without an adult. Emily was old enough to understand what that meant. Emily's parents were present at the D home at all times that day with Emily and had not specifically entrusted the supervision of Emily to D. At the same time, both families informally shared responsibility for supervising each other's children. Ps sued Ds for wrongful death and a survival action. Ds moved for summary judgment. Ps asserted the evidence was sufficient to require that the 'attractive nuisance doctrine' question be submitted to the jury, thus raising the standard of care owed by Ds to one of reasonable care. The district court agreed and denied Ds' motion for summary judgment. The district court agreed to certify the question of law.