Pinegar v. Harris

20 So. 3d 1081 (2009)

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Nature of the Case

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Facts

Brooklynn is the minor daughter of P. P and Harris (D) were never married and had joint custody of Brooklynn. Brooklynn was four years old when the accident occurred. Brooklynn accompanied her father on a social visit to Cascio's (D) home in Baton Rouge. She had visited the home with her father on a number of prior occasions. On that day, Cascio, Harris, Cascio's brother, and another friend intended to watch a football game on television. Cascio's fiancée, whose company Brooklynn enjoyed, was expected to arrive later. The men were planning on watching the football game in the living room, which adjoined a kitchen and dining room. The rooms were accessible to each other via an open entranceway approximately eight feet wide. Shortly before the game began, Brooklynn became hungry and wanted something to eat. Harris took her into the kitchen and dining room, gave her a snack and positioned a dining table chair so that Brooklynn could watch cartoons on a small television in that room on top of a small table or stand near the dining room table. On top of that television was a glass bowl measuring about a foot wide and six inches tall, the home of a small pet turtle named 'Vinnie.' The turtle bowl was approximately four to five feet from the floor, and Brooklynn could not have reached it either standing on the floor or sitting in the chair. The bowl was filled with water to about a third of its capacity. A rock or similar object was also placed within it. Harris went to the living room about ten steps from where Brooklynn was seated and if looking in her direction, he could see his daughter. He stood there and began to watch the football game when he heard a crash. Only about ten seconds had elapsed from the time he left his daughter's side to the time he heard the crash. Brooklynn was on the floor with the broken turtle bowl, bleeding from two lacerations to her face, over and under her right eye. She was taken to the emergency room. P alleged that Brooklynn's injuries were caused by the negligence of Harris and Cascio in failing to supervise. Cascio denied liability, alleging that Brooklynn was under the control and supervision of Harris at the time of the accident, that the accident was the fault of either Brooklynn or Harris. Cascio filed a motion for summary judgment. P amended her petition a third time to allege that Ds were negligent in failing to secure the turtle bowl or remove it from its elevated position, that Cascio was negligent in failing to warn Harris that the bowl was not secured and that the bowl constituted an attractive nuisance. P also affirmatively pleaded the evidentiary doctrine of res ipsa loquitur. The court determined that neither the doctrine of attractive nuisance nor that of res ipsa loquitur was applicable under the facts shown. It held that the turtle bowl was not unreasonably dangerous and that Cascio did not breach any duty to Brooklynn under the circumstances. It also held that the cause of action against Harris was premature until Brooklynn reached the age of majority. P appealed.