FERRER v. KUTZ

Gregory Scott Mason

Case Conclusion Date:August 17, 2006

Practice Area:Wrongful Death

Outcome:Defense Verdict (12-0 negligence for plaintiffs; 12-0 Causation for Defendants)

Description:JURY TRIAL TO VERDICT: The KUTZ defendants were represented by Gregory S. Mason of McCormick, Barstow, LLP. The plaintiffs were the parents, brother and sister of a two-year-old girl who drowned during a family Fourth of July gathering at the defendants' residence. The gathering included swimming earlier in the day and dinner. The defendants were the decedent's aunt and uncle. The decedent, who was allegedly last seen by her parents inside the residence, found her way outside the residence and into the pool. The residence, pursuant to The City of Fresno Municipal Code, was equipped with door exit alarms when the pool was constructed and permitted for occupancy in late May 2003. The door exit alarms were designed to emit a continuous, high-pitched alarm until an exit door affording direct access to the pool was closed, so as to give notice to those in or around the home that somebody had opened an exit door. In the weeks prior to the accident, the door exit alarms at defendants' residence were removed. The plaintiffs requested and received a negligence per se jury instruction, wherein a violation of law was deemed conclusive against defendants with regard to the removal of the door exit alarms. Plaintiffs contended that the failure to keep the door exit alarms in place, along with the defendants' failure to activate a pool surface tension alarm, that defendants had installed at decedent's grandparents' wishes, were substantial factors in causing decedent's death. DEFENDANT(S) CONTENTION(S) AS TO LIABILITY: Defendants contended that the absence of the door exit alarms was not a substantial factor because the decedent was observed by her grandmother standing in the backyard five to six feet away from her father, each facing one another and laughing in the moments before decedent's father entered the residence to use the restroom. Decedent's father denied that he either took his daughter outside or that he observed his daughter outside before entering the home. Decedent's father was the last known adult to have been in the backyard prior to the time decedent was found in the pool. Defendants also contended that the pool surface tension alarm should not have been activated because: 1) people swam in the pool earlier in the day; 2) a waterfall that was running into the pool during dinner would have activated the pool surface tension alarm; and 3) it was anticipated that there would be post-dinner swim activities in the pool. Defendants also contended that the decedent's brother and sister were not lawful heirs, for which a motion for nonsuit was granted. Plaintiffs made an initial policy limits demand of $500,000.00 and, thereafter, plaintiffs’ demand was $1,500,000.00. Plaintiffs requested that the jury award $3,400,000.00. OFFER: CCP Section 998 of $30,000.00. RESULT: Defendants were found to be negligent; however, a defense verdict was awarded on the causation issue.