Death of Lofton v. Green
| Decision Date | 17 October 1995 |
| Docket Number | No. 80794,80794 |
| Citation | 905 P.2d 790 |
| Parties | In the Matter of the DEATH OF William "Billy" LOFTON, Karen Lofton, Next of Kin, Appellant, v. Orval and Nghi Thi GREEN, Appellees. |
| Court | Oklahoma Supreme Court |
Clyde Kirk, Robert K. McCune, Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, Oklahoma City, for Appellant.
Galen L. Brittingham, Thomas, Glass, Atkinson, Haskins, Nellis & Boudreaux, Tulsa, for Appellees.
William "Billy" Lofton was six years old when he drowned in his neighbor's swimming pool. The neighbor's were the Greens, they were sued by Billy's mother to recover her damages by reason of his death. She argued the pool was an attractive nuisance and imposed on the Greens a duty of reasonable care although Billy was admittedly, trespassing.
We have never held a private residential swimming pool to be an attractive nuisance although we have held an ornamental "fish pond" constructed on residential property in a heavily populated urban setting was not one, Dennis v. Spillers, 199 Okla. 311, 185 P.2d 465 (1947). Also more recently we held a rural stock pond was not an attractive nuisance, Lohrenz v. Lang, 787 P.2d 1274 (Okla.1990).
Because of these two decisions, the trial court in this case refused to allow the question of whether the Greens' pool was an attractive nuisance to be submitted to the jury. The issue regarding a duty of the Greens to small children, such as Billy and whether that duty had been breached as represented by a city ordinance requiring swimming pools to be fenced, was submitted to the jury.
The jury returned its verdict wherein it found Billy's mother and the Greens were equally at fault and the damages to the plaintiff to be the total amount of $4,200.00. Because of the finding that the comparative negligence of the plaintiff was 50%, the trial court entered judgment for the plaintiff for $2,100.00. Only the plaintiff appealed urging, as we have said, error of the trial court in refusing to submit attractive nuisance to the jury. The plaintiff also complained of the inadequacy of the verdict.
In Lohrenz we re-affirmed the view expressed in City of Mangum v. Powell, 196 Okla. 306, 165 P.2d 136, 137 (1946) as follows:
A body of water--either standing, as in ponds and lakes, or running, as in rivers and creeks, or ebbing and flowing, as in the shores of seas and bays--is a natural object incident to all countries which are not deserts. Such a body of water may be found in or close to nearly every city or town in the land; the danger of drowning in it is an apparent open danger, the knowledge of which is common to all (italics ours); and there is no just view consistent The above rule and case law does not totally reject the notion that a property owner may be found liable for the drowning death of a small child in his backyard pool if it can be shown (as it was in this case) that the fence he was required to construct to make it difficult for small children to access the pool area did not satisfy all the requirements of an applicable city ordinance and that such failure probably resulted in the child gaining access to the swimming pool. In such a situation, of course, the ordinance was passed to protect small children--like Billy--who in addition to being immature, was also suffering from seizures and required special schooling. The ordinance of the City of Tulsa which was the subject of the court's instruction to the jury provided:
with recognized rights of property owners which would compel one owning land upon which such water, or part of it, stands and flows, to fill it up, or surround it with an impenetrable wall. (emphasis in the original)
There are duties imposed by ordinances. If you find that a person violated any one of the following ordinances and the violation was the direct cause of the injury, then such violation in and of itself would make such person at fault.
There was in force and effect in Oklahoma, the City of Tulsa, at the time of the occurrence the following ordinances:
There was testimony that the latch on the gate to the front yard was not self-closing or self-latching and that the latch was not "--4 feet (1219 mm) above the underlying ground and otherwise made inaccessible from the outside to small children." There was also testimony the fence was not secure.
The jury heard all of the tendered evidence of the Greens' negligence and found them liable for the death on the submitted theory that their fence did not comply with the requirements of the city ordinance. If attractive nuisance had been relied on as the plaintiff's central theory of liability, no additional proof of the Greens' lack of due care would have come forward during the trial.
Appellant further asserts the damage award was grossly inadequate. Damages recoverable for the death of a minor child are defined under Oklahoma law, 12 O.S.1991 § 1055. The section states:
In all actions hereinafter brought to recover damages for the death of an unmarried, unemancipated minor child, the damages recoverable shall include medical and burial expense, loss of anticipated services and support, loss of companionship and love of the child, destruction of parent-child relationship and loss of monies expended by parents or guardian in support, maintenance and education of such minor child, in such amount as, under all circumstances of the case, may be just.
We have held that a jury verdict will not be set aside as inadequate unless it is "beyond all measure unreasonable and outrageous and such as manifestly shows the jury to have been actuated by passion, partiality, prejudice or corruption." Park v. Security Bank & Trust Co., 512 P.2d 113, 116 (Okla.1973). The court of appeals determined the award was inadequate under the above cited We are mindful of the loss this parent has suffered. It is the function of the jury however, to properly evaluate the various elements of alleged damages and to pass upon the credibility of lay witnesses and determine the weight and value of their testimony. Art. II Sec. 19, Oklahoma Constitution. Baker v. Locke Supply Co., 736 P.2d 155 (Okla.1987). The extent of the plaintiff's pecuniary and emotional loss was a matter exclusively for the jury to determine. Evidence must be introduced to support an award. In that Appellants do not direct us to any evidence which would substantiate a reversal, the damage award is sustained.
case law, yet, our review of the evidence fails to justify its conclusion. Neither, does Appellant cite to evidence in the record justifying a reversal on the damage issue other than to show that the amount awarded, less the percentage attributed to Appellant's contributory negligence, would just satisfy funeral expenses.
The opinion of the court of appeals is VACATED. The decision of the district court is AFFIRMED.
The outcome of this case does not turn on the trial court's refusal to instruct on attractive nuisance. As the court correctly points out, the jury was allowed to hear all the tendered evidence of landowners' negligence. Since none was excluded, nothing could be added on retrial. 1
Decisive of today's review is whether new trial is the parent's due because of an "inadequate" damages award in the § 651(4) sense. 2 There is here no indication of "passion, partiality, prejudice or corruption" 3 in the jury's concededly conservative assessment of the pecuniary and emotional loss from the child's death.
It is peculiarly within the province of the fact trier to consider and weigh the impact of negligent parental supervision and to evaluate the child's ill health as a depreciating factor in computing both the pecuniary and emotional loss. If the jury system is to stand "inviolate", as commanded by Art. 2, § 19, Okl. Const., 4 judges must resist the temptation of injecting into the process their individual concept of "justice".
Although I agree that the verdict is quite small, I cannot view it as a product of some legal error or condemn it as dehors the jury's constitutional authority. 5 I hence join in affirming the nisi prius judgment on the verdict.
I dissent from the majority opinion for two reasons. The first is that although the result might not be altered, I would find that a residential swimming pool which meets the test outlined in the Restatement (Second) of Torts § 339 1 is an attractive nuisance. 2 However, it is more likely that had the attractive nuisance instruction been given, the ratio of the comparative negligence computation would have resulted in a more appropriate verdict. Basically, this case is on appeal because of the overbroad interpretation by the trial court of our ...
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