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$________ CONFIDENTIAL Premises Liability – Failure to maintain pool fence in accordance with applicable law – Unsafe premises – Wrongful death of 4-year-old autistic child from drowning in defendants' pool – Conscious pain and suffering – Emotional distress

Withheld County, MA

In this premises liability wrongful death matter, the plaintiff estate alleged that the defendants, an apartment complex owner, property manager, and pool company, were negligent in failing to ensure that the chain link fence surrounding the defendant’s pool was secure and in compliance. The child was able to slip through the bottom of the fence and drowned in the pool. The defendants denied liability, maintaining that the child climbed over the fence. The defendants also disputed the nature and extent of the plaintiff’s alleged injuries and damages.

The 4-year-old decedent resided with his family in a ground floor apartment at the defendant’s apartment complex. On the date of the incident, the child exited his apartment through the window, and was found drowned in the defendant’s pool. Discovery disclosed that the fence was able to be lifted from the bottom, and the child apparently crawled under the fence and drowned in the pool. The gate to the pool was locked, and there was no direct evidence of how the child accessed the inside of the pool area. After a search, his diaper was located outside the fence, and the child’s body was found at the bottom of the deep end of the pool, which had recently been uncovered and had not yet been cleaned or opened. The plaintiff alleged that there was an area of the six-foot chain link fence where the bottom was loose and could be lifted up, allowing enough room for the child to slide underneath the bottom of the fence. The fence lacked a section of pipe on the bottom of where the chain link fencing met the ground as required by code. The plaintiff indicated that there was evidence that other area children had accessed the pool when the gate was locked using this flaw in the fencing.

The plaintiff brought suit against the defendants, the apartment owner, property manager, and pool company, alleging negligence. The plaintiffs alleged conscious pain and suffering of the child prior to his death supported by an expert anesthesiologist. The plaintiff also sought damages for emotional distress by the child’s parents.

The defendants denied the allegations. The defendant pool company in particular maintained that it had no legal responsibility to inspect or maintain the fencing, and therefore was not responsible.The parties agreed to mediation of the plaintiff’s claim and the claim resolved for the confidential settlement of $________.

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