Mozier v. Parsons, Civ. A. No. 93-2158-GTV

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Writing for the Court: Zackery E. Reynolds, Fort Scott, KS, for Charles Parsons, Brenda Parsons
• Citation: 874 F. Supp. 329
• Parties: John O. MOZIER, Jr. and Nancy G. Mozier, Plaintiffs, v. Charles PARSONS and Brenda Parsons, Defendants. John O. MOZIER, Sr., as Special Administrator of the estate of Emily Elise Mozier, deceased, Plaintiff, v. Charles PARSONS and Brenda Parsons, Defendants.
• Decision Date: 18 January 1995
• Docket Number: 93-2159-GTV.,Civ. A. No. 93-2158-GTV

874 F. Supp. 329

John O. MOZIER, Jr. and Nancy G. Mozier, Plaintiffs,
v.
Charles PARSONS and Brenda Parsons, Defendants.
John O. MOZIER, Sr., as Special Administrator of the estate of Emily Elise Mozier, deceased, Plaintiff,
v.
Charles PARSONS and Brenda Parsons, Defendants.

Civ. A. Nos. 93-2158-GTV, 93-2159-GTV.

United States District Court, D. Kansas.

January 18, 1995.

Mark C. Owens, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, Peter A. Martin, Redstone, CO, for John O. Mozier, Jr., Nancy G. Mozier.

Zackery E. Reynolds, Fort Scott, KS, for Charles Parsons, Brenda Parsons.

John H. Mitchelson, Wheeler & Mitchelson, Chtd., Pittsburg, KS, for Bauman Pool and Spa Inc.

James L. Sanders, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, for Stephen Howell, State Farm Fire & Cas. Co.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

These are consolidated wrongful death and survival actions in which plaintiffs seek recovery for the injury and death of three-and-one-half-year old Emily Mozier who drowned in defendants' swimming pool. These cases are before the court on defendants' motion for reconsideration (Doc. 71) of the court's Memorandum and Order entered on April 7, 1994, which denied defendants' motion for summary judgment. For the reasons explained below, the motion for reconsideration is granted and the court's April 7, 1994, order is amended to grant summary judgment in favor of defendants.

874 F. Supp. 330

I. Background¹

Emily Mozier was a social guest of defendants at the time of the accident. As a result, the defendants owed her only the duty to refrain from willfully, wantonly, or recklessly injuring her, unless a recognized exception applies to reduce the standard of care to that of ordinary negligence.² In opposing defendants' summary judgment motion, plaintiffs argued that two exceptions apply. The court rejected plaintiffs' first argument based on the active negligence exception. The court ruled, however, that the evidence in the case was sufficient to require that the question of attractive nuisance be submitted to the jury. See Mozier v. Parsons, 852 F.Supp. 925 (D.Kan.1994). Under this theory, defendants could be liable for damages upon a showing of ordinary negligence. If the attractive nuisance doctrine cannot be asserted as a matter of law, defendants could be liable for damages only upon a showing that they willfully, wantonly, or recklessly caused Emily's injuries and death.

After the court's order was entered, defendants filed their motion for reconsideration of the order and a motion to certify a question of law to the Kansas Supreme Court. The court granted the motion for a certified question and deferred ruling on the motion for reconsideration. See Mozier, 852 F.Supp. at 932-33. The question certified was as follows: "In a negligence action involving injury to a child, can the attractive nuisance doctrine be used to establish liability when the injury occurred in a residential swimming pool?"

On January 4, 1995, the Kansas Supreme Court entered an answer to the certified question. See Mozier v. Parsons, 256 Kan. 769, 887 P.2d 692 (Kan.1995). After reviewing its prior holdings related to the attractive nuisance doctrine, the court concluded as follows:

All of our cases to date, beginning with Gilliland v. City of Topeka 124 Kan. 726, 262 P. 493 (1928) in 1928, have consistently held that a swimming pool does not constitute an attractive nuisance and that the doctrine does not apply. We adhere to our prior cases. A swimming pool, public or private, does not belong in the same class with instrumentalities and places regarded as attractive nuisances.

While we do not rule out the remote possibility that there could be a highly unusual and aggravated factual situation that might support consideration of the attractive nuisance doctrine, we hold that, generally, swimming pools, whether public or private, do not constitute an attractive nuisance and are not subject to the attractive nuisance doctrine.

On the facts submitted to us in this case, the answer to the certified question is clearly "no."

Id. at 778, 887 P.2d 692.

II. Analysis

Whether to grant or deny a motion for reconsideration is committed to the court's discretion. Hancock v. City of...