Kopera v. Moschella

• Decision Date: 31 July 1975
• Docket Number: Civ. A. No. 73S-163(N).
• Citation: 400 F. Supp. 131
• Parties: Ronald John KOPERA, and wife, Sandra Kopera, Plaintiffs, v. Charles MOSCHELLA et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

400 F. Supp. 131

Ronald John KOPERA, and wife, Sandra Kopera, Plaintiffs, v. Charles MOSCHELLA et al., Defendants.

Civ. A. No. 73S-163(N).

United States District Court, S. D. Mississippi, S. D.

July 31, 1975.

Bobby G. O'Barr, Clyde Hurlbert, Biloxi, Miss., for plaintiffs.

George E. Morse, Gulfport, Miss., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

NIXON, District Judge.

This diversity suit was filed by the Plaintiffs, Ronald John Kopera and Sandra Kopera against the defendants under Mississippi's wrongful death statute, Miss.Code 1972, § 11-7-13, for damages or compensation for the alleged wrongful death of their minor daughter, Ronette N. Kopera, as a result of her January 20, 1973 drowning in the swimming pool at the Oakwood Apartments, owned, operated and maintained by the defendants in Biloxi, Harrison County, Mississippi. This case was tried to the Court without a jury on May 5, 1975, and based upon all of the evidence adduced, this Court makes the following Findings of Fact and reaches the following Conclusions of Law as required by Rule 52, F.R.Civ.P.

FINDINGS OF FACT

On January 20, 1973, the deceased six year old minor's body was found at the bottom of a swimming pool located at Oakwood Apartments, 2870 West Beach Boulevard, Biloxi, Mississippi where she resided as a tenant in Apartment 169 with her mother Sandra Kopera, who paid rent for the occupancy of the apartment and the use of the swimming pool, laundry room and recreation facilities located in the apartment complex. This apartment complex which was located on the North side of U. S. Highway 90 facing the Mississippi Sound or Gulf of Mexico, consisted of two hundred sixty-four (264) units with five swimming pools, one located in the middle of every other complex. The complex consisted of town houses on the north and south ends with two story structures on the east and west side containing regular apartments. The complex in which the deceased and her mother resided had a rectangular shaped swimming pool located in the middle thereof which was approximately forty feet in length running east and west and was approximately three feet deep on the shallow end and seven feet deep on the deep end.

Mrs. Kopera and Ronette had originally moved to the Oakwood Apartments in approximately October, 1972 and temporarily resided in the apartment of some friends, Dick and Linda Mohr. Shortly thereafter, in November, 1972, she applied to rent her own apartment at Oakwood and signed a written application (Exhibit D-1) therefor on which she stated that she was a single person and did not list any dependants. However, in her conversation with the assistant manager of Oakwood, Theresa Leopold, to whom she applied, she informed Mrs. Leopold that she was divorced from Ronald Kopera and made her aware of the fact that she had a five year old daughter who would reside with her in the apartment. Although a lease was prepared for Mrs. Kopera's signature, she never signed it but began renting apartment No. 169 at Oakwood in November, 1972, and continued to do so, paying rent therefor to the defendants up to the time that Ronette drowned. On several occasions while she was residing at Oakwood, Mrs. Kopera conversed with Mrs. Leopold at which time Ronette was with the plaintiff. Thus, the defendants, through their assistant manager, Mrs. Leopold, knew that Ronette resided with her mother at Oakwood Apartments. Ronette was born December 21, 1966, was in good health and a six year old child of average intelligence.

On January 20, 1973, the date that she died by drowning, Ronette Kopera resided with her mother at Apartment 169 of Oakwood Apartments, which was a one bedroom upstairs apartment. Ronette's grandmother and Mrs. Kopera's mother, Mrs. Emily Kamysz, who had been visiting with her daughter and granddaughter for approximately one month at the time of Ronette's death, took the child to an apartment occupied by Linda Mohr, Sandra's friend, who lived in the same complex. Mrs. Kamysz and Ronette left their apartment at approximately 5:30 or 5:45 p. m., during daylight hours, in order to take some Polish pastry which Mrs. Kamysz had made to Linda Mohr on her birthday. After they left, Sandra Kopera proceeded to shower, preparing to go to work as a barmaid at the White Pillars Restaurant located next to Oakwood Apartments. After Mrs. Kamysz and Ronette were at the Mohr's for approximately fifteen minutes, Ronette became anxious to leave and left approximately five minutes ahead of Mrs. Kamysz in order to return to their apartment. While Mrs. Kopera was in the shower, Ronette entered the apartment and called to her mother who was in the shower. Sandra replied asking Ronette where grandmother was, to which she responded, "She's coming, Mommy" and closed the door, leaving the apartment, although Mrs. Kopera thought she had remained therein. Approximately five or ten minutes later Mrs. Kamysz entered the apartment and inquired of Sandra Kopera concerning Ronette, to which she responded that she thought she was with her. Mrs. Kamysz then looked out the door and noticed that there was a commotion around the swimming pool. After she alerted Sandra Kopera she left the apartment, saw that Ronette's body had been removed from the pool by another tenant who dived therein after being told by another couple who were tenants in the apartment that they had just observed Ronette's body at the bottom of the deep part of the pool near the drain. She screamed and Mrs. Kopera ran down to the pool area.

Although two nurses who lived in the apartment complex attempted to administer resuscitation to the minor plaintiff, she was never revived and died as a result of drowning.

At the time that Ronette drowned, the pool was full of water. Mrs. Kopera had taken Ronette swimming in the pool on a couple of occasions in October, 1972 and other tenants had swum therein in November of that same year. The pool area contained no life-saving or resuscitating equipment for the recovery of bodies, such as poles or hooks. Neither was it fenced nor covered nor drained in the winter months, and at no time was a lifeguard employed by the defendants to attend the pools in the apartment complex despite the fact that the defendants' management had knowledge that Ronette Kopera, and other children of tender years lived in the apartment complex, swam in the pools, including the pool in question, played in and near the pool area, some having been chased off by Mrs. Leopold, the assistant manager, prior to the time that Ronette drowned.

After Ronette's body was discovered, she was not removed from the pool until another tenant, who had been informed by the tenants who had observed the child's body returned to his apartment, undressed, put on a bathing suit and dived into the pool, removing the body therefrom. No one witnessed or knows how or why Ronette entered or fell into the pool, but when recovered she was fully dressed, wearing a sweater, slacks and gray tie-on canvas shoes. She had never been allowed to enter the pool or go into the pool area by Mrs. Kopera or Mrs. Kamysz without being accompanied by Mrs. Kopera or another adult and apparently had never done so before without accompaniment. She was unable to swim. The body was seen by the tenants who discovered her at dusk while it was light enough to see into the pool. There was no supervision of the pool area by any of the agents or employees of the...