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Relocate this to the USA
Posted: Thu May 05, 2011 9:11 pm
by Gob
OK legal beagles, if this were to occur in the USA, what would you predict the outcome to be?
Paralysed woman sues Farnham pool owner for £6m
A woman who hit her head on the bottom of a swimming pool during a party in Surrey and was left paralysed is suing the owner for £6m at the High Court.
Kylie Grimes was injured when she dived into the pool in Farnham owned by David Hawkins in August 2006.
Philip Mott QC, for Ms Grimes, said the pool house should have been locked or there should have been warning notices.
Mr Hawkins, of Compton Way, who denies liability, said he considered the pool was safe.
The court heard he taught both his daughters to dive in the pool.
Ms Grimes, now 23, of Stephendale Road, has claimed her injury was caused by Mr Hawkins's negligence or breach of his duties under the Occupiers' Liability Act.
The court heard Mr Hawkins and his wife were away that night.
Their daughter Katie had asked her father to let her have a few friends over but a group of about 20 came back from the pub.
She said she did not invite Ms Grimes and did not expect people to go swimming, but did not know how to stop them, so turned the lights on for their safety.
She also said no accident had ever occurred in the 30ft (9.1m) pool which had a deep end of less than 6ft (1.8m).
Mr Mott said Ms Grimes was "clearly" invited back and was lent swimming kit by Ms Hawkins.
He told the judge, who is only concerned with the issue of liability at this stage, she would have to decide where Ms Grimes dived from and how bad her dive was.
William Norris QC, for Mr Hawkins, said no sound legal basis existed on which Mr Hawkins could be held liable for the accident which happened in an "unremarkable swimming pool on domestic premises when the claimant, an adult, chose to do something which involved an obvious risk".
He said: "The legal reality and practical result is that this tragedy was the result of her own choice to take the obvious risk of injury when diving into relatively shallow water."
He said other people were in the pool so the actual depth would have been apparent.
Ms Grimes was paralysed from the chest down after she broke a vertebra below the base of her neck.
The case was adjourned.
http://www.bbc.co.uk/news/uk-england-surrey-13301317
Re: Relocate this to the USA
Posted: Fri May 06, 2011 9:43 pm
by Sue U
Gob wrote:OK legal beagles, if this were to occur in the USA, what would you predict the outcome to be?
Difficult case, signficant factual issues to be resolved. Issue as to whether homeowners exercised proper control over access to the property and as to whether Ms. Grimes was invited to use the pool. Pool should have had "no diving" warning or host should have told guests "no diving"; a 6-ft pool is by definition unsafe for diving. Issue as to whether depth of pool at point of dive was apparent to victim. Issue as to whether intoxication was a factor. Issue as to comparative/contributory negligence of victim. Damages are obviously substantial, liability is iffy, don't know if I would take this case; a lot depends on the personalities of the people involved.
Re: Relocate this to the USA
Posted: Fri May 06, 2011 9:47 pm
by Gob
Lovely, thanks very much Sue!
Re: Relocate this to the USA
Posted: Mon May 09, 2011 2:44 am
by oldr_n_wsr
I seem to recall something similar here in the USA (probably on Long Island) where the diver won the lawsuit.
Re: Relocate this to the USA
Posted: Mon May 09, 2011 6:42 pm
by dgs49
The unstated but overriding approach to this sort of case in the U.S. is that the "system" will strive to get the injured plaintiff compensated, regardless of her own stupidity and/or the fault of the other party, because "It's the right thing to do." The Legal Challenge is finding some person or entity with sufficiently deep pockets (e.g., an insurance company) so that the jury won't feel guilty about taking money from an innocent person to compensate an idiot.
American Tort Law in a few short sentences.
The idea that a private homeowner should have painted a warning sign around his own family swimming pool , and using the lack of such a sign as the basis for finding him liable for millions in damages, is, to any sane person, preposterous. But where an insurance company can be compelled to pay, an American jury will usually go along with it.
Re: Relocate this to the USA
Posted: Mon May 09, 2011 9:01 pm
by Gob
dgs49 wrote:
The idea that a private homeowner should have painted a warning sign around his own family swimming pool , and using the lack of such a sign as the basis for finding him liable for millions in damages, is, to any sane person, preposterous.
My word, we agree on something dgs!
May I quote myself here? From our last trip to the UK..
Then I noticed something in the bathroom which sent me off into another of my rants. The hot water taps in the shower, bath, and sink had little yellow warning labels on them; “CAUTION, HOT WATER!” Oh yes, and what do people expect comes out of hot water taps? Beer? KY jelly? Magic pixie dust? I mean, for Christ's sake, are they so afraid that people will scald themselves and sue for damages as; “I didn’t expect the water coming out of a hot water tap to be hot.” Are we that much of a nanny state these days?
Re: Relocate this to the USA
Posted: Mon May 09, 2011 9:29 pm
by Sue U
dgs49 wrote:The idea that a private homeowner should have painted a warning sign around his own family swimming pool , and using the lack of such a sign as the basis for finding him liable for millions in damages, is, to any sane person, preposterous.
Although
dgs49 pretends to have attended some law school, this, of course, is a wholly specious "interpretation" on what the law requires and why. What the law requires is that people invited to one's premises should be made aware of any significant hazards that may not be obvious. There is no requirement to paint a warning sign, although that is one way to address the problem. As I noted above, it would have been sufficient if the hostess had instructed her guests not to dive, as the pool was far too shallow. At night, and especially after what was apparently an evening at the pub, the depth of a pool is not always obvious.
dgs49 wrote:The unstated but overriding approach to this sort of case in the U.S. is that the "system" will strive to get the injured plaintiff compensated, regardless of her own stupidity and/or the fault of the other party, because "It's the right thing to do." The Legal Challenge is finding some person or entity with sufficiently deep pockets (e.g., an insurance company) so that the jury won't feel guilty about taking money from an innocent person to compensate an idiot.
Unsurprisingly, given
dgs49's frank ignorance of the American civil justice system, this too is mindless drivel. As I noted above, if the plaintiff is found to be in any way responsible for her own injuries, the law of comparative or contributory negligence would either bar her claim in its entirety or operate to reduce the defendant's share of negligence in reciprocal proporton to her own. In traditional contributory negligence jurisdictions, even 1% of responsibility on the plaintiff would bar her claim outright. In most comparative negligence jurisdicitions, a finding of, for example, 40% responsiblility on the part of plaintiff would mean that defendant could be assessed no more than 60% of the damages; a finding of 51% responsibility or more on plaintiff would mean she gets nothing.
However, I'm sure that if
dgs49 or any of his family members were ever catastrophically injured in an accident that might be even a tiny fraction their own fault, they would refuse to initiate any legal action for compensation -- being idiots and all.
Re: Relocate this to the USA
Posted: Mon May 09, 2011 9:50 pm
by Gob
Sue, what do you make of this?
The Regulation provides that the owner of a property on which a swimming pool is situated must ensure that the
swimming pool is at all times surrounded by a child-resistant barrier that separates the pool from the residential
premises and is designed, constructed and installed in accordance with the Regulation.
The child-resistant barrier must be no less than 1.2 metres high and if it is a boundary fence, it must be no less
than 1.8 metres. Barriers, gates and doors must be kept in good working condition and doors and gates must be
kept securely locked when not in use.
If your pool was built before 1 August 1990, the pool must be either surrounded by a child resistant barrier or
access doors and windows from the premises to the pool must be installed with devices which will restrict entry by
children.
A pool built after 1 August 1990 and before 1 September 2008 must have a child-resistant barrier that separates
the pool from the premises.
The child-resistant barrier must be maintained in a good state of repair as an effective and safe child resistant
barrier.
The occupier of the premises where there is a swimming pool must ensure that the prescribed Warning Notice is
displayed in a prominent position in the immediate vicinity of the swimming pool. The sign gives supervision
warning and the details of resuscitation techniques.
http://www.jmalegal.com.au/pdfs/publica ... 20laws.pdf
Re: Relocate this to the USA
Posted: Mon May 09, 2011 9:56 pm
by oldr_n_wsr
Similar regulations for pools here on Long Island especially for inground pools. Above ground pools (I believe) are a barrier in themselves as they are usually 4 feet high (about 1.2 meters) where the fince requirement may be waved (or grandfathered) provided the ladder can be made to not allow climbing up it and into a pool (aka flipped up and locked).
It's been 20 years since I installed my above ground pool and those were the regulations I had to follow. The pool came with stickers that you put on the railing saying NO DIVING, SHALLOW WATER but I don't know if puting them on was mandatory (I did anyway).
ETA
But most of these regulations concentrate on keeping kids and non-swimmers out of the pool rather than keeping adults (or almost adults) from doing something they shouldn't if they don't know the lay of the land (or pool).
Newly installed pools here on Long island must now have a type of water motion detector to alert the homeowner when someone has entered the water.
Re: Relocate this to the USA
Posted: Tue May 10, 2011 1:51 pm
by Sue U
Gob wrote:Sue, what do you make of this?
As it says in the link, "The Standard was developed following extensive consultation and reflects the availability of new technology, better understanding of the factors that determine risks of toddler drowning and changes in community expectations."
As
oldr noted, this looks like a pretty standard regulation and in any event is pretty much what would be required under common-law rules of "reasonable care" anyway. I would expect that compliance with the regulation would in most cases shield the pool owner from liability for injuries to children under the attractive nuisance doctrine. Children are by definition incapable of sound judgment and are far too frequently the victims of pool accidents that could have been avoided with comparativelty modest safeguards.
Do you think there is some problem with the standard?
Re: Relocate this to the USA
Posted: Tue May 10, 2011 9:01 pm
by Gob
Nope, none that I can see. I was interested in what a non Aus would think, esp one with a legal background. Seeing as the emphasis is on toddlers, would it carry much weight if an adult were to injure themselves in one of these pools?
Re: Relocate this to the USA
Posted: Wed May 11, 2011 1:13 pm
by Sue U
With adults, it would depend on the context. The boundary fencing requirement of 1.8 meters is obviously designed to discourage trespassers. Most jurisdictions recognize a distinction between trespassers, licensees (people permitted to be on the property, though not necessarily invited) and invitees in terms of the duty of care owed by the premises owner. To the extent an adult thwarts safeguards intended to prevent access and ignores open and obvious dangers, there would be little chance of any liability attaching to the premises owner, since very little if any duty of care is owed as a matter of law. The more modern approach in premises cases is to do away with the trespasser/licensee/invitee distinctions in favor of a uniform standard of foreseeability: was it reasonably foreseeable that people (even if they may be trespassers) would be gaining entry to the property to use the pool, and were there appropriate warnings or safeguards in place nonetheless? Under this standard you would have to look at all the facts and circumstances and what was reasonable in that particular context.
Re: Relocate this to the USA
Posted: Wed May 11, 2011 9:44 pm
by Gob
Cheers again Sue, very informative. If we ever get a pool I'm putting 3 metre high fences around it, land mines, barbed wire, armed guards, and labelling it "PLEASE KEEP OUT OF THE GREAT WHITE ENCLOSURE."
Re: Relocate this to the USA
Posted: Wed May 11, 2011 11:56 pm
by Sean
Don't forget to fill it with sharks with frickin' laser beams on their heads...
Re: Relocate this to the USA
Posted: Thu May 12, 2011 2:30 am
by loCAtek
...or irate trout, in a pinch.
Re: Relocate this to the USA
Posted: Thu May 12, 2011 2:42 am
by oldr_n_wsr
Snapping turtles would be my choice.
Re: Relocate this to the USA
Posted: Thu Aug 04, 2011 12:47 am
by Gob
Common sense or injustice?
A teenager who was paralysed in a swimming accident at a late-night party lost her £6million compensation bid yesterday.
Kylie Grimes was left paralysed from the chest down after hitting her head diving into a pool at a friend’s house when she was 18.
A High Court judge said she had suffered ‘catastrophic’ consequences from the misjudged dive, but ruled it would not be fair to allow her to sue the pool’s owner – her friend’s father – for £6million in compensation.
Mrs Justice Thirlwall said: ‘She was an adult. She did something which carried an obvious risk. She chose, voluntarily, to dive when, how and where she did, knowing the risks involved.’
Miss Grimes, now 23, hit the bottom of the pool with such force that she broke a vertebra below the base of her neck. She has lost the use of her arms and legs and is confined to a wheelchair.
An ‘accomplished swimmer’ before the accident, she had drunk three or four small glasses of wine before the dive, but was not drunk.
Other teenagers at the party, at the home of businessman David Hawkins, were jumping and ‘bombing’ into the 30ft heated indoor pool, the High Court in London was told.
Read more:
http://www.dailymail.co.uk/news/article ... z1U168FZVH
Re: Relocate this to the USA
Posted: Thu Aug 04, 2011 1:02 am
by Sean
The Mail says that she got nowt which leads me to believe that she was really awarded about $100 bazillion.
The lying bastards!
Re: Relocate this to the USA
Posted: Thu Aug 04, 2011 1:51 am
by dales
I'm afraid we haven't heard the last from this gold-digger:
From the article:
Miss Grimes has also launched legal proceedings against Frimley Park Hospital NHS Trust, which has admitted breach of duty over her treatment but denies that its actions made her injuries worse. That case has yet to be heard.
Read more:
http://www.dailymail.co.uk/news/article ... z1U1LsaVCI
Re: Relocate this to the USA
Posted: Thu Aug 04, 2011 3:16 am
by Sue U
Without knowing more than the facts we have here, the judge's decsion is a misapplication of of the doctrine of "assumption of the risk." The judge based her ruling on apparently finding that "She did something which carried an obvious risk. She chose, voluntarily, to dive when, how and where she did,
knowing the risks involved.’ It seems to me the fundamental fact question in the case -- and fact questions are for a jury, not a judge -- is whether the young woman in fact knew of
any risk, i.e., knew the depth of the pool, knew that diving would be unsafe, etc. Unless pre-trial discovery somehow demonstrated without question that she actually
knew the risk she was encountering, the judge's ruling should be reversed.
(Even if she knew of a risk, modern tort law has rejected "assumption of the risk" in favor of comparative negligence assessments, as I described in a post above; so unless Britain is still in the 1930s, the judge's decision is wrong on that count, too.)
dales wrote:I'm afraid we haven't heard the last from this gold-digger:
Yeah, people who have been catastrophiacally injured are just damaged goods, so everyone else should be free to treat them like garbage and not have a care about it. After all, they're only into the quadriplegia for the money.
