Legal Issues

Shaylas mom, Mary Smith filed lawsuit demanding 25, 000 in damages against Tamaras Parents and pool owners Owen and Dolly Jones breach of duty and negligent supervision after Mary Smith broke her arm when she dove into the pool. 36-1681 Pool enclosures Requirements Exception, Enforcement states that any body of water intended for swimming eighteen inches or more depth and wider than eight feet at any point, shall, 1. Be fully enclosed by wall or fence or any other barrier at least five foot high 2. There shall be no opening in the wall or fence bigger than four inches in diameter, and, 3. Gates shall be fully secured by a padlock or any similar device. This provision was obviously violated. Further, Section 1406 (Minimum State Law Requirements) of H.R. 6303 to 309 of Title XIV Known as Pool and Spa Safety states that (1) A. The state requires enclosure of all outdoor pools and spas with barriers to prevent effectively unauthorized entry to the pool. Negligent was also another avenue to which the case can proceed.

Facts 
On April 30, 2008 Bob and Susan Tuttle and their daughter Tamara took Shayla Smith, daughter of Mary Smith to a few nights camping at a small camp ground owned by Owen and Dolly Jones. Miss Smith was happy for this since Shayla was a dyslexic and has a hard time in school. Apparently, Mr. and Mrs. Tuttle assumed full responsibility of Shaylas safety as they voluntarily took her with them.

The pool is equipped with several amenities such as mini-golf games, hiking trails, and pool with no diving board and no lifeguard. Upon arrival at around 930 AM Tamara and Shayla went and dove into the pool. Shayla hit the bottom and broke her arm. Although a sign was posted at the pool entrance which states that the pool was supposed to open at 10 AM they made they way into the pool. There was also no sign posted that some part of the pool is narrow to caution divers and swimmers. Tamara and Shaylas easy entry into the pool area means that there was an opening enough for anyone to enter the pool area even the pool is still close.

Issues
Did Shaylas mother have the right to file lawsuit against Mr. Bob and Dolly Jones and Tamaras parents for breach of duties and negligence.

Analysis
The answer is yes. Shaylas mother have the right to file lawsuit against the respondent because there were clearly violations on the public safety that resulted to Shaylas broken arm and near death experience. In a case Slowe v. Pike Creek Court Club, Inc. hereby also known as PCCC, the plaintiff William Slowe filed a lawsuit against PCCC alleging that he fell on a removable pool steps at a health club run by PCCC. Slowe argued that the club negligently maintained the steps and that PCCC has failed to warn of the danger the steps presented. The PCCC filed motion to dismiss since Slowe has signed a liability waiver before he was allowed to use the health club facilities. The Court however denied the motion and held that the waiver signed by Slowe did not absolve PCCC from liability for negligent acts. Under this court decision, negligent act is defined by the court as the inability of the facility owner to safeguard the individual safety against the potential hazard arising from use of such facility. The lawsuit filed by Shaylas mom therefore is very strong because there were obviously violations committed by Mr. and Mrs. Jones. Especially as contained in the two statutes mentioned earlier regarding public swimming pool operations.

Another case to support the argument above is the case Lynn K. Eckelburger and John Eckelburger v. Diane Mischelle Frank. The case was about the death of an eighteen month old child who was drowned from in a nearby backyard swimming pool. The Eckelburgers contended that the pool has six foot wooden fence and was closed. The kids managed themselves to get in by climbing up the door using a chair and unlocked the door for the other to enter. According to the mother of the kids Patrick a three years old and Phelicia she was about to bathe the children when they slipped and wandered away from their home after she went to draw the bath. When she came back after about five minutes the kids were gone.  After searching for the kids, Frank saw Patrick which in turn led her to the Eckelburgers backyard where she found Phelicia dead at the pool. In this case, the court ruled that ordinance 82-19 of Polk County refers to threat to safety of young children to protect themselves than to the general public. That is, violence of 82-19 is results in negligence per se.

The case Donoghue v. Stevenson was an important case in the breach of duty suit. In the case, the court recognized that a new relationship gives rise to a duty to care. Given these three cases, the suit filed by Shaylas mom have indeed very strong legal basis.  

Conclusion
The facts and laws cited in the paper clearly reflect that the case filed has a strong legal ground. In the case of Breach of Duty, Kelly, Holmes, and Hayward (2005) stated if the defendant fails to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would not do or does something which a prudent and a reasonable man would not do (p. 247). Apparently, there was lot of things that were not done that could have avoided the incident had they been done. As Mandelsam stated, the duty to care is associated with physical or bodily harm (Mandelsam 2009, p. 112). Harm was evident ly committed due negligent.