CAP STONE FINAL PROJECT

Unit 9

By: Jamie Mitchell-Crews

11/16/2013

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MemorandumTo: Paralegal – J. Mitchell-Crews

From: Senior Partner

Date: 11/17/2013

RE: Smith v. Tuttle; O & D campground (Owner Dolly Jones)

CASE: Smith v. Tuttle, & O and D campground owner Dolly Jones

Petitioner: Mary Smith, [child] Shayla Smith

Respondent: Bob and Susan Tuttle

Respondent: O and D campground [owners] Dolly Jones

FACTS: Shayla Smith was injured on April 30, 2008, when she dove into a

shallow pool and broke her arm, Which, occurred at O & D family

campground - Mr. & Mrs. Tuttle took Tamara their daughter with a guest

Shayla Smith to a campground. According to Mary Smith, (Minor Children)

Tamara and Shayla went swimming at approximately 9:30 a.m. The pool

officially opens at 10:00 a.m. according to the sign that is normal posted

every morning before pool opens at the gates entrance of regulation of pool

operational times, which the children did not originate as the result of her

injuries, and no supervision at the pool.

The owners, Owen and Dolly Jones, who own and operate the

campground, do not have any protection on the premises because they are a

‘mom and pop’ operation, seasonal campground. The sign out front that is

visible to guest says, “Everyone’s family at the O & D Family Campground.

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Fact of Injuries: Fracture of right humorous, radius, and ulna (pins used);

contusions; emotional distress. Slow healing. Emergency treatment at

Memorial Hospital taken by County Ambulance.

ISSUE: Dose our client, “Shayla’s family” have justifications to sue Mr. &

Mrs. Tuttle for negligent of supervision, as well as the O & D campground

for negligence

BRIEF ANWCER: Yes, Mrs. Smith has ground to seeking monetary

damages and liability of the actions of the caregiver and facility “O&D

family campground (owner Mrs. Jones). Mrs. Smith has grounds under

Florida Laws:

Liability & Attractive Nuisance 41 Fla. Jur 2d Premises Liability §§ 66-

77, regarding neglect by landowner and/or property & Attractive

Nuisance regarding Statues of Florida laws of Pool/pond regulation.

Neglect FLA.STAT. § 775.082, FLA.STAT. § 775.083, FLA.STAT. §

775.084; a person who commits aggravated child abuse committing a

felony of the first-degree “neglect under laws of caregiver.

Mrs. Smith has ground file of Neglect Supervision, Loss of compensations of

reimbursements, time loss from work, travel expensive, tutoring expensive

of her child not attending school, medical compensations, mental and

anguish for their neglect and endangering the welfare of a minor.

Negligence and Attractive Nuisance regarding this issue, the

Attractive nuisance doctrine is premised on the belief that one who

maintains a dangerous condition which is likely to attract children on their

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property is under a duty to post a warning or take affirmative action to

protect children from the dangers of that attraction. It imposes a duty to be

sensitive to potentially dangerous conditions, which are likely to attract

children. The attractive nuisance doctrine typically does not apply to adults.

However, if a child is in danger due to an attractive nuisance and an adult

attempts to rescue the child, the attractive nuisance doctrine may hold the

landowner responsible for the rescuer's injuries in addition to the child's

injuries.

RULE:

A. Gilbertson v. Lennar Homes, Inc., 629 So.2d 1029, 19 Fla. L. Weekly D49 (Fla. App. 4 Dist. Dec 29, 1993)

Under section 373.171, (1) (a), Florida Statutes (1979), that governs the provisions of each water management district is sanctioned to issue rules and regulations to “protect the public health, safety, and welfare in the interests of this state regarding water usages. These statutes and procedures must be filed with the Department of State of Florida FLA. STAT. § 373.171(4), Fla.Stat. (1979).

B. FLA. STAT. § 515.23 (Legislative findings and intent) The Legislature finds that drowning is the leading cause of death of young children in this state (Fla.)

Therefore, it is the intent of the (Fla.) Legislature that all new residential swimming pools, spas, and hot tubs be equipped with at least one pool safety feature as specified in FLA.STAT. § 515.23.

C. Starling v. Saha 451 So.2d 516 (Fla. 5th D.C.A. 1984) child drowned when the child was swimming in a pond and got caught by an intake house of a drainage pump that had been left operating with out supervision.

D. 41 Fla. Jur 2d Premises Liability §§ 66-77: Generally, a landowner may be responsible for a child trespasser's injuries if:

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The property owner knows or has reason to know that the place where a dangerous condition exists is one where a child may trespass.

The dangerous condition is known to or should be known to cause unreasonable risk of harm to a child.

The child, because of their young age, does not realize the risk involved with the dangerous condition.

The burden of eliminating the danger is less than the risk posed to a child.

The property owner fails to act with reasonable care to remove the danger or protect the child from the risk of danger.

Additionally, the dangerous condition must be one that is man-made, like a pool or hot tub, and constitutes an attractive "trap" for a child.  Landowners near a playground, residential area, school, or other populated area where children frequent may have a greater duty to eliminate dangers.  It is important to know that a natural body of water, like a lake, stream, or pond may not be an attractive nuisance, so make sure to protect children

4) A child died when swimming in a manufactured pit filled with water, where children were known to swim. The pit was equipped with a wooden dock and raft. (Ansin v. Thurston, 98 So. 2d 87 (Fla. Dist. Ct. App. 3d Dist. 1957)).

5) FLA.STAT. § 775.082, FLA.STAT. § 775.083, FLA.STAT. § 775.084; Ref: Neglect - a person who commits aggravated child abuse committing a felony of the first-degree “neglect”. Florida Statues state that caregiver failure or omission to provide a child of the following:

A. the care, supervision and service necessary to maintain the child physical and mental health, including but not limited to food, nutrition, clothing shelter, supervision, medicine and medical service that a prudent person would consider essential for the well-being of the child.

B. If the caregiver does not provide these functions above, violate the statues. A caregiver failure to make a reasonable effort to protect a child from abuse, neglect or exploitation by another person

ANALYSIS: Shayla Smith was injured on April 30, 2008, when she dove

into a shallow pool and broke her arm. Shayla was camping with her friend

Tamara, and Tamara's parents, Bob and Susan Tuttle. The Tuttle’s were

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camping at the O & D Family Campground owned by Owen and Dolly Jones.

Shayla is 9-years-old, was supervised by Mrs. Tuttle and had temporary

guarding for Shayla Smith while on this camping trip.

According to Mary Smith, her daughter is special need child, on the day of

the incident Tamara and Shayla went swimming. The pool officially opened

at 10:00 a.m. according to a sign posted on the gate entrance regulation of

pool operational times, which the children did not observe at the time. In

addition, there was no supervision was not posted or supervision required

at pool.

Shayla injuries was Fracture of right humorous, radius, and ulna (pins used)

contusions, emotional distress. Slow healing. Emergency treatment at

Memorial Hospital taken by County Ambulance. Shayla had a cast for 6

weeks and is undergoing physical therapy due to the severity of the break.

CONT. ANALYSIS:

Therefore, there was no supervision for these children, which relate to

neglect and attractive nuisance the result of her injuries.

Shayla case which the Ms. Smith is seeking monetary damages and liability

of the actions of the caregiver and/or facility “O&D family campground

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regarding the pond issue of Ms. Smith case to the case above for law suit

litigations.

In addition, of seeking not only damages from O & D family Campground

but of the Tuttle’s family of neglect and endangering the welfare of a minor.

In Analyzing three case regarding similar facts of Ms. Smith v. O & D

Family Campground and Tuttle Family was up held:

1) Case - Gilbertson v. Lennar Homes: In the case above, the Florida law

stated that the proper legal actions and protocols were taken in the

Gilbertson v. Lennar Homes, which support the case above regarding

Statues and laws of Florida. This case Gilbertson v. Lennar Homes

support and Holdings by the “Circuit Court for Broward County, Harry

G. Hinckley, Jr., J., Granted” final decisions in favor of developer and

property association, and parents appealed. The District Court of

Appeal, Gunther, J., Held that: (1) fact question as to whether

developer had complied with South Florida Water Management

District which (SFWMD they did not follow the guidelines,

regulations and permits creating a breach by developers of neglect

and endangering safety and welfare of others. The case was: REVERSED

AND REMANDED. POLEN and KLEIN, JJ, concur.

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CONT. ANALYSIS:

2) Case – Walt Disney World Co. v. Goode, 501 So. 2D 622 (Fla. 5th DCA

1986) In the case of Walt Disney World Co. v. Goode , the Parents of four-

year-old child who drowned on amusement theme park premises brought

wrongful death action against park. The Circuit Court, judgment was The

District Court of Appeal, Orfinger, J., held that:

(1) Whether park was liable for drowning turned on ordinary rules of

negligence as applied to business invitee at place of public

amusement.

(2) Breach of duty and proximate causation were questions of fact for

jury; and (3) $1,000,000 damages awarded to each parent for past

and future pain and suffering were not excessive. Was Affirm

3) Case - Switzer v. Dye 177 So.2d 539 Fla.App. (1965). Action for injuries

sustained by 12-year-old child when she dived from pier owned by

defendant. (Dye). The Circuit Court, Clay County, Marion W. Gooding, J.,

dismissed complaint with prejudice and plaintiffs appealed. The District

Court of Appeal, held that depth of water three to five feet beneath pier five

feet above water, did not constitute a trap (41 Fla. Jur 2d Premises Liability

§§ 66-77) . That unusual element of danger as applied to unauthorized

persons using the pier and pier owner was not liable for injuries sustained

the child when dived from pier in such a way as to strike bottom of lake.

Affirm.

CONCLUSION: Florida Statues FLA. STAT. § 373.171(4), Fla. Stat. 41 Fla.

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Jur 2d Premises Liability §§ 66- states that Under section 373.171, (1) (a),

Florida Statutes (1979), that governs the provisions of each water

management district is sanctioned to issue rules and regulations to “protect

the public health, safety, and welfare in the interests of this state regarding

water usages. These statutes and procedures must be filed with the

Department of State of Florida FLA. STAT. § 373.171(4), Fla.Stat. (1979). In

addition, Florida statues states, 41 Fla. Jur 2d Premises Liability §§ 66-77:

Generally, a landowner may be responsible for a child trespasser's injuries if

The property owner knows or has reason to know that the place where a

dangerous condition exists is one where a child may trespass. The

dangerous condition is known to or should be known to cause unreasonable

risk of harm to a child. The child, because of their young age, does not

realize the risk involved with the dangerous condition. The burden of

eliminating the danger is less than the risk posed to a child.

The property owner fails to act with reasonable care to remove the danger

or protect the child from the risk of danger

Additionally, the dangerous condition must be one that is man-made,

as a pool constitutes an attractive "trap" for a child. Landowners near a

playground, residential area, school, or other populated area where

children frequent may have a greater duty to eliminate dangers. It is

important to know that a natural body of water, like a lake, stream, or pond

may not be an attractive nuisance. In regards of Neglect FLA.STAT. §

775.082, FLA.STAT. § 775.083, FLA.STAT. § 775.084; a person who commits

aggravated child abuse committing a felony of the first-degree “neglect”.

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Florida Statues state that caregiver failure or omission to provide a child:

1) The caregiver, lacking supervision and service necessary to maintain

the child physical and mental health. The Caregiver must include but

not limited to food, nutrition, clothing shelter, supervision, medicine

and medical service that a prudent person would consider essential

for the well-being of the child failure to provide these outline is

violation of Florida Statues.

CONT. CONCLUSION

2) If the caregiver does not provide these functions above, violate the

statues. A caregiver failure to make a reasonable effort to protect a

child from abuse, neglect or exploitation by another person.

Therefore, the accident is supported that Tuttle; O & D campground

(Owner Dolly Jones) are liable for Neglect and Attractive Nuisance laws by

Florida regulations, Statues and cases. Ref: Gilbertson v. Lennar Homes,

Inc., 629 So.2d 1029, 19 Fla. L. Weekly D49 (Fla. App. 4 Dist. Dec 29, 1993),

Starling v. Saha 451 So.2d 516 (Fla. 5th D.C.A. 1984) and Florida Statues.

.

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Cited Word

Gilbertson v. Lennar Homes, Inc., 629 So.2d 1029, 19 Fla. L. Weekly D49 (Fla. App. 4 Dist. Dec 29, 1993)

US Legal, Defining Attractive Nuisance (2013) http://definitions.uslegal.com/a/attractive-nuisance/

FLA. STAT. § 373.171(4), Fla.Stat. (1979). West Law

Starling v. Saha 451 So.2d 516 (Fla. 5th D.C.A. 1984) West Law

Fla. Stat. 41 Fla. Jur 2d Premises Liability §§ 66-77

Walt Disney World Co. v. Goode, 501 So. 2D 622 (Fla.5 th DCA 1986) West Law

Switzer v. Dye 177 So.2d 539 Fla.App. (1965). West Law

Ansin v. Thurston, 98 So. 2d 87 (Fla. Dist. Ct. App. 3d Dist. 1957).

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FLA.STAT. § 775.082, FLA.STAT. § 775.083, FLA.STAT. § 775.084 (Neglect)