On June 27, 2011, 12-year-old Jamarcus Hilliard attended a birthday party at the Sterlington, Louisiana, home of Cash Clay. During the party, Jamarcus was permitted, along with eleven other children, to play in and around the swimming pool located on Clay’s property. Despite being unable to swim, Jamarcus entered the pool at some point during the party and, unfortunately, drowned.
Clay was not present at his home on that fateful day, instead allowing his girlfriend, Kinsha Walton, to host the party in his absence. Walton, along with her three children, Kimberly, Derek, and Alexis, lived at the Sterlington home with Clay, and all members of the household other than Clay were present at the party. At some point after Jamarcus began playing in the pool, several children began screaming that Jamarcus had gone under water in the deep end but failed to resurface. Walton was the only member of the household supervising the party at that time, but was unable to assist Jamarcus because she did not know how to swim. In fact, neither Walton nor her daughter Alexis knew how to swim; however, Walton’s other two children, Derek and Kimberly, were qualified swimmers. After a failed rescue attempt by the father of another child, Walton asked Kimberly to assist Jamarcus, though Kimberly was deaf and indicated that she did not know what to do. Derek was then summoned from inside the home and rushed poolside, but it was too late. Jamarcus had already passed and was officially pronounced dead a short time later at the hospital.
The court ruled that, as the property owner, Clay had a duty to provide reasonable supervision to the children using his pool. Relying on deposition testimony, the court recognized that even though Clay knew young children would be using his pool, he decided not to be present during the party, thereby relying primarily on Walton to satisfy his duty of reasonable supervision. In addition, Clay testified that he knew both Derek and Kimberly could swim and would be present at the party; however, the court noted that he did not specifically ask them to help Walton supervise the children, nor did Derek and Kimberly offer to assist.
In a preliminary ruling, the court explained that a jury could reasonably determine that Clay’s knowledge that Derek and Kimberly would be present during the party is not the same as having Derek and Kimberly responsible for supervising the party. Thus, as Walton was the only member of the household with supervision responsibilities, the court concluded that an issue of fact existed as to whether Clay acted reasonably in relying solely on Walton, a non-swimmer, to supervise a group of young children in a swimming pool, with the mere expectation that Derek and Kimberly would be present at the party. Accordingly, the appellate court reversed the trial court’s summary dismissal of the lawsuit and remanded it for further proceedings.
Take-Away: Property owners have a duty to provide reasonable supervision to children swimming in their pools. Although property owners may rely on others to satisfy this duty of supervision, such reliance must be reasonable, and allowing a non-swimmer to supervise children may not reasonable.
This article was co-authored by Chris Ulfers, a summer associate at Irwin Fritchie Urquhart & Moore LLC.