ST. LOUIS (Legal Newsline) – The seller of an above-ground pool will face wrongful death allegations, as a St. Louis federal judge has rejected the company’s motion to dismiss.
Audrey Fleissig made her decision on July 22 in Kyle and Annaleah Justice’s lawsuit against Rural King and Bestway over the drowning of their two-year-old daughter, Ellieanna Marie Justice.
Bestway made the pool and sold it to Rural King, which sold it to Ellieanna’s grandparents. Rural King sought dismissal under Missouri’s Innocent Seller statute.
“Plaintiffs allege Rural King knew the pool’s design was defective because it constructed the same model of pool in its showroom and was therefore aware that the pool had a nylon strap which could be used by a small child to access the pool,” Fleissig wrote.
“They claim Rural King failed to warn them of the danger, resulting in Decedent’s death. Rural King argues that the act of displaying its products is inherent to its status as a seller and does not give rise to knowledge of the potentially dangerous use of the strap to access the pool.
“Whether Rural King had knowledge of the danger is a question of fact not properly decided on a motion to dismiss.”
The defective design lawsuit stems from a nylon strap 14 inches above the ground around the pool, which was 51 inches tall. The pool contained a removable ladder, but Ellieanna was still able to access the pool via the strap.
Rural King will face claims of negligence, breach of express warranty, breach of implied warranty and strict liability.
Rural King failed to show the plaintiffs could obtain “total recovery” from another defendant. The Innocent Seller law doesn’t apply in cases in which independent negligence claims are pled, the decision says.