Shoemake v. Fogel, Ltd., A.T.

826 S.W.2d 933 (1992)

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Nature of the Case

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Facts

One month before her second birthday, Miranda Gilley nearly drowned in the swimming pool at her apartment complex. The child was rescued and temporarily revived, but four months later died from the injuries she had suffered. P sued Ds, the apartment complex owners, Fogel, Ltd. A.T. and Federal Group I, and the apartment complex manager, International Property Management, Inc. P brought a survival action in her capacity as representative of the child's estate. The jury awarded $285,492.28 to P on her wrongful death claim, and $50,969 to the child's estate in the survival action. Considering the negligence that caused the near-drowning, the jury attributed a total of fifty-five percent to Ds, and the remaining forty-five percent to P. As to the wrongful death action, the trial court reduced P's recovery by forty-five percent but refused to do so in the survival action. The appeals court reversed, and P appealed.