Garcia
v. South Virgil Apartments
Six and a half-year old J. was here from Mexico to
visit family. He drowned in the pool of a 70 unit apartment
building where his relatives lived. The building had
a perimeter enclosure which met code requirements and
a second enclosure around the pool which was not required
by code. The decedent entered the enclosure to the pool
area after playing with other children. His father was
at work at the time an his mother was on the telephone.
An aunt who cannot swim discovered the boy in the pool
but was unable to reach him until another tenant who
could swim pulled the boy out of the water. The paramedics
arrived within a few minutes but were unable to detect
any vital signs of life. His mother helped pull her
child out of the water while two siblings, a seven year
old brother and four year old sister, watched the boy.
 The
family retained our services to sue the landlord for
wrongful death on behalf of the mother and father. The
mother and siblings claimed for negligent infliction
of emotional distress. We alleged that the three and
half foot gate to the fence immediately around the pool
was not operating properly. It would not self close
or self latch, thereby inviting children into the area.
Although the gate was not required by law, since it
was provided it should have operated properly. moreover,
a rescue pole was not available near the pool as required
by code. Had one been available, we alleged that the
aunt may have been able to save the child.
The defense argued that the parents did not teach the
child water safety and did not warn the boy of playing
near the pool. They argued that the perimeter enclosure
was no an issue since it was not required by law, since
the six and half year old boy was tall enough to open
the self latching mechanism whether operating or not.
They also claimed that the rescue pole was available
and that the boy was in the pool for more than ten minutes.
Even if the pole was not there it would not have mattered
since the boy would have been dead before the rescuers
discovered him.
This case required a two week long jury trial after
which the jury deliberated for six days. Their verdict
was for $1,122,500.00, of which they claimed the parents
were sixty five percent negligence. There fore the net
verdict was 392,875.00. This was a very significant
case in that the value put on the life of a six and
half year old, non-citizen was well over a million dollars.
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