In the summer of 2019, a 2.5 year old child, E.M.J., was playing at her home in rural Missouri. EMJ lived there with her grandparents, her parents, and her sibling. The home sat on a large acreage and the family was usually engaged in outdoor activities. The family had an above-ground pool on the property that they had recently purchased. The family had pools on the property previously and had strict rules for the pool such as adult supervision was always required; all kids had to wear life jackets; and the ladder was to be removed at all times the pool was not in use. One late afternoon EMJ was playing outside near the home. Several adults, including her father, were on the back porch and milling around the property. The pool was roughly 35 feet from the porch. At one point EMJs grandmother, who was primarily watching her, went inside to start dinner. 5-7 minutes later the grandmother came outside and asked the other adults if they had seen EMJ. When the other adults said they had not seen her in several minutes, they all started looking for her. EMJs father immediately went to the pool where he found her floating face down. EMJ could not be revived.
The design of the pool included a nylon strap that ran horizontally around the entire circumference of the outside of the pool, approxinatley 14” off the ground. Child sized muddy footprints could be seen on the strap and then “walking” up the pool wall near where EMJ was found. It was alleged that EMJ used the strap as a “foothold” to gain access to the top of the pool wall where she fell in.
The case dealt with the following issues:
- Plaintiff had zero quantifiable damages. All of the damages were non-economic. Further, there was a question as to how long it took the child to drown and what that pain and suffering would be like.
- Defense contended that no one saw EMJ get into the pool and that she could have used other furniture, like a lawn chair, that was close the pool, to access the pool.
- Main defense was negligent supervision on the part of the grandparents and the dad. Defense contended that pools are inherently dangerous and that a child that small should always be watched when there is a pool on the property.
- Defense contended that the design of the pool, particularly the strap, was not defective and that the strap was necessary to maintain the integrity of the pool wall.
- Defense also contended that “millions” of these pools has been sold throughout the US and that it had never received a report of a child using the strap to gain access to the pool.
- The pretrial was challenging and plaintiffs had several pieces of good evidence excluded on various grounds. The case was tried in federal court.
- Voir dire was extremely limited.
- Opening and closing was limited to 20 minutes each.
- Almost all the plaintiff’s demonstratives were excluded – we tried really hard to get demonstratives in to show the strap and the height of the pool wall. We tried to use the actual pool and when that was disallowed, we built some plywood walls and those were also excluded.
Despite a challenging courtroom, no witnesses to the actual event, the real challenge of negligent supervision, and no economic damages the jury awarded $25,000.000.00 in damages to the family and put 35% liability on the decedents parents.