BOISE, Idaho (Legal Newsline) – A property owner will not be liable for the death of a toddler who escaped her daycare and drowned in a nearby canal.
The ruling is against the arguments of Sky Duncan, who argued Scott Long had a duty to fix a broken fence through which a 19-month-old girl passed in the town of Iona, Idaho. The death was the subject of the Idaho Supreme Court’s Aug. 17 ruling.
“(W)e hold that Long had no duty to protect against an injury that occurred on adjacent property that Long did not own, occupy or control,” Justice Richard Bevan wrote.
Duncan’s two daughters attended a daycare run by Anna McCowin out of the house Long owned. Around the property was a six-foot-tall privacy fence with a problem with one of its gates.
Its hinges had broken and it fell to the ground, but it was simply propped up to cover the hole that was created. Running adjacent to the property is an irrigation canal.
In 2014, the girl, identified as K.R. in the decision was playing outside with other children while McCowin disciplined her own daughter inside.
“When McCowin went outside she saw one of the young boys ducking back into the backyard through the broken gate and realized K.R. was missing,” the ruling says. “K.R. was later found by a neighbor submerged in the canal 150 to 200 feet north of Long’s property…”
Long escaped liability. The trial court said he did not have a duty to repair the gate and did not “create the hazard himself. McCowin, instead, was responsible, the court ruled.
“The court also recognized that even if Long did have an express or implied duty to repair the gate, the gate is not what caused K.R.’s death; the canal, which is not located on Long’s property, did,” Bevan wrote.