$2,800,000: Child Nearly Drowns And Recovers $2.8 Million From Homeowners Insurance

June 3, 2010

CASE DESCRIPTION: This case involves a near drowning accident of a child occurring in an above ground backyard pool at his grandparents’ home. Plaintiff suffered a severe anoxis encephalopathy with seizure disorder and will be disabled for life. Plaintiff sued homeowners on the basis of negligent  maintenance of a dangerous condition.

RESULT: $2,800,000.00 total settlement

Plaintiff, along with other children, was a guest at the home of her grandparents, the Greenwoods, on the date of this accident. The child’s mother was also present at the home. In the backyard was an above ground pool that could be accessed by a ladder which was attached to the side of the pool by spring loaded cotter pins. To prevent small children from getting into the pool, the ladder could be removed or lifted up. Prior to the Plaintiff’s accident, the group of children had been brought into the family room for lunch. The screen door that separated the backyard from the house was broken and the sliding glass door was left open. An aunt sat near this open doorway to watch the children while Plaintiff’s mother and grandmother (Defendant) went into the kitchen to prepare lunch.

During this time the grandfather (Defendant) returned home from work and walked through the family room and sat in the backyard for several minutes, facing the pool. He failed to notice that the pool ladder was down, which would allow Plaintiff access to the pool and failed to notice Plaintiff in the pool. The grandfather then went back into the house and within two minutes, Plaintiff was discovered in the pool by her mother, in full arrest.

Plaintiff contended that the homeowners were negligent in maintaining a dangerous condition. Such negligence is illustrated by the homeowners failing to adequately supervise the premises or children, by failing to remove the ladder from the pool while the children were supposed to be in the house, and having no adequate means to prevent the young children from getting from the house to the backyard.

Shortly after filing suit, Plaintiff served the Defendants with a CCP 998 Offer to Compromise for $300,000.00. This was the policy limit of the Defendants homeowners’ insurance coverage. This lapsed by operation of law with no settlement offer. Approximately thirteen months later, the Defendants’ carrier offered the policy limits, which was rejected by Plaintiff. The carrier ultimately paid 2.8 million dollars to settle both this action and a potential claim for an excess judgment. This settlement represented payment of the policy limits plus 2.5 million dollars.

The Defense argued that the child’s mother was negligent in failing to supervise Plaintiff. The aunt was also negligent in that she had been delegated the responsibility of watching the children and Plaintiff could only have gotten into the backyard while the aunt was supposed to be watching the children.

TYPE OF CASE: Personal Injury

INJURIES: Plaintiff suffered a severe anoxis encephalopathy with seizure disorder and will be disabled for life.

DATE & LOCATION OF INCIDENT: On 8/8/90 at approximately 4:00 p.m. in Cypress, California.

PLAINTIFF’S AGE: N/A

OCCUPATION: N/A

PLAINTIFFS’ ATTORNEY:
Wylie A. Aitken
AITKEN * AITKEN * COHN
For Plaintiff – Justine P., a minor, by and through her Guardian ad Litem, Randy P.

DEFENDANTS’ ATTORNEYS:
Judith Land & Steven Hillyard
TUVERSON & HILLYARD
For Defendants – Bradley & Molly G.
DEFENDANT INSURANCE CO.: State Farm Insurance Company