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Rhode Island Supreme Court overturns defense judgment in case against pool seller over boy's drowning

By Brian Brueggemann | May 2, 2019

PROVIDENCE, R.I. (Legal Newsline) – The Rhode Island Supreme Court has vacated a judge's decision to grant summary judgment in a family's claim that a swimming pool seller is responsible for the 2012 drowning death of a 4-year-old boy.

In the April 16 opinion, Chief Justice Paul Suttell vacated the decision of the Newport County Superior Court and remanded it back to that court.

Laura Gear had an above-ground pool installed at her residence in 2012 that she purchased from a NAMCO store. A store employee gave Gear a document titled "Swimming Pool Installation Information,” which listed several pool-installation companies and their prices.

"On the opposite side of the list of installers, the document stated, in part: 'The attached list of swimming pool installers and their prices is provided for customer convenience. Proper pool installation is important to the long-term enjoyment of your pool and the choice of installer is the customer’s right. Note: You are under no obligation to use any of the installers on this list and we encourage you to research your decision thoroughly,'" the ruling states.

In a deposition, Gear testified that after receiving the document, she was under the impression that the installers listed “were subcontractors that worked for themselves, but NAMCO ... used them. And, I guess, they have a relationship ... that’s the impression I got,” the ruling states.

The pool was installed by Lot-2 Enterprises, one of the contractors on the list.

"Gear testified in her deposition that the installers dug an area for the pool, set the pool in the ground, began filling the pool with water, and then instructed Gear to 'check (the water) and shut it off that night. Gear testified that she understood that the company installed only the pool itself, and not the ladder or the fencing surrounding the pool," according to the ruling.

The following day, the ladder for the pool was assembled by a friend.

In May 2012, Gear's grandson was left in her care. That morning, she left to run errands, leaving her 14-year-old daughter to watch the grandson. While Gear was gone, the grandson got into the pool and drowned.

Plaintiffs Raymond Oliver and Tiffany Gear, the boy's parents, filed suit against NAMCO, Lot-2 Enterprises and others alleging that the defendants negligently installed the pool without a proper permit in violation of ordinances and negligently installed the safety ladder.

In 2015, NAMCO filed a motion for summary judgment in the suit, arguing that because it did not install the pool or the ladder, and because Lot-2 was not its agent, NAMCO had no duty to plaintiffs regarding installation of the pool. NAMCO also argued that the plaintiffs could not prove that its actions were a cause of the boy's death. 

The plaintiffs filed an objection to NAMCO’s motion, "arguing that a question of fact existed as to whether Lot-2 acted with apparent or inherent agency authority on behalf of NAMCO," the ruling states. They also argued that NAMCO had “failed in its duty to warn Gear of the dangers of not utilizing the sliding safety lock mechanism and safety padlock system” of the ladder, according to the ruling.

A hearing on NAMCO's motion for summary judgment was held in February 2016, and the trial judge reserved judgment. In June 2016, while hearing arguments in an unrelated matter in the case, the judge brought up the NAMCO motion and granted it.

The Supreme Court, in its opinion, wrote that on the question of whether there was "negligence by NAMCO or its authorized agent with respect to the installation of the pool ... plaintiffs have met their burden of demonstrating that this threshold factual issue remains in dispute."

The ruling further states: "First, although its process is unclear, placement on the installer list involved recognition by NAMCO’s corporate headquarters. Also, Gear testified at her deposition that, when she was handed the document by a NAMCO employee, the employee indicated that the list contained subcontractors who knew how to install NAMCO’s pools. Gear further testified that it was her impression that NAMCO had a relationship with the installers on the list."

The Supreme Court noted that the owner of Lot-2 Enterprises "testified at his deposition that NAMCO personnel make several random inspections of the pools that Lot-2 installs each year. After considering these facts in the light most favorable to plaintiffs, we are of the opinion that an issue of fact exists as to whether Lot-2 acted as NAMCO’s agent, or whether Gear reasonably believed that Lot-2 was NAMCO’s agent."

In their appeal, the plaintiffs argued that the judge's decision to grant judgment to NAMCO was inappropriate "because NAMCO had a duty to include only qualified installers on its list and, further, to properly vet and supervise the installers it included on that list," the ruling states.

"Significantly, the parties dispute whether the list may be properly classified as an 'approved' list of installers. Additionally ... a factual issue remains in dispute with respect to the relationship between NAMCO and the installers on the list, and whether Gear could have reasonably believed that an agency relationship existed," the ruling states.

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