A Capehart Scatchard Blog

Homeowners Found Not Liable for Guest Who Drowned in Their Pool

By on July 28, 2017 in Liability with 0 Comments

Defendants Doris and James Astacio permitted Doris’ sister and brother-in-law, Diana and Jason Adams, to host a sixteenth birthday party for their son at their home. Dafiq Rasheed, an adult guest, drowned in their pool and his father filed a negligence action against the defendants for a survivorship claim and a wrongful death claim on behalf of his estate. In White v. Astacio, 2017 N.J. Super. Unpub. LEXIS 1845 (App. Div. July 21, 2017), the plaintiffs argued that the defendants should be held liable for this drowning due to the failure to have a shepherd’s crook easily accessible and designate a “water watcher” while guests were in the pool.

Although the party was at their home, Doris and James were not the hosts. Doris was not even home and James was doing yardwork most of the time in the front of the house.

As the party was ending, Dafiq jumped into the deep end of the pool. Dafiq starting bobbing and within a minute went under. Another adult guest, Christopher Maglione, jumped into the pool, fully clothed, brought Dafiq’s head above the water and pulled him to the edge of the pool. Jason helped to pull Dafiq out of the water onto the concrete. Jason administered CPR for several minutes. James heard someone call 911, ran to the backyard, saw Dafiq, and called 911.

EMTs arrived but they were unable to revive Dafiq. He was pronounced dead at the hospital with the cause of death listed as asphyxia due to drowning. The plaintiff’s liability expert, Dr. Francesco Pia, opined that the defendants had a duty to provide a safe environment to invited pool party guests and to protect them from drowning by the exercise of reasonable care.

He identified two recommendations of the American Red Cross for pool safety that the defendants failed to follow. First, defendants did not have a shepard’s crook, which could have been used to pull Dafiq out when he was in distress. Second, defendants failed to have a lifeguard or “designated water watcher” whose responsibility is to supervise bathers during a pool party and could have used the shepard’s crook to prevent Dafiq from drowning.

A landowner is not required to provide greater safety on his premises for a social guest than he would for himself. The landowner has a duty to disclose known dangerous conditions. If, however, the guest is aware of the dangerous condition or should be aware of it, the host is not liable for the guest’s lack of due care.

Here, the Court found that Dafiq was familiar with the defendants’ pool, having used it previously. The lack of a shepherd’s crook and “water watcher” would have been evident. Regardless, even without imputing this knowledge to Dafiq, the Appellate Division found that the plaintiff failed to establish proximate cause.

Dr. Pia conceded in his deposition that the action taken by Christopher, who immediately jumped into the pool, would have been the correct course of action, even if the shepherd’s crook had been present and would have been faster than attempting to rescue Dafiq with a shepherd’s crook. As for the water watcher, Dr. Pia opined that a water watcher could have been observing Dafiq and pulled him out of the water when he started to struggle.

However, the records show that Dafiq was observed continuously by other adults when he jumped into the pool and Christopher jumped into the pool to rescue him within one minute. CPR was administered right away. These are the same actions Dr. Pia described that a water watcher would perform.  Hence, the Appellate Division found that the failure to have a shepherd’s crook or “water watcher” did not breach a duty of care that proximately caused Dafiq’s death. Accordingly, the Court upheld the summary judgment granted to the defendants, dismissing the case as to them.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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