Monday, October 16, 2017

Child drowns from falling into grease pit at Auburn, AL, ice-cream parlor, raising the tricky legal questions that are central to our nightmarish experience


Sadie Grace Andrews
(From al.com)
A 3-year-old girl died over the weekend when she drowned from falling into a grease pit at an Auburn, AL, ice-cream parlor. It's hard to imagine a more horrific form of accidental death, and it raises all sorts of legal issues -- many of which are present in our personal tale of trying to keep a criminally inclined neighbor and his brethren off our property.

Sadie Grace Andrews died about 1 p.m. on Saturday when the accident happened at Bruster's Real Ice Cream on East University Drive. A 911 call was placed about a missing child, and a quick review of surveillance video at the store showed what happened: Sadie and two of her siblings were playing when she apparently stepped or jumped on an unsecured lid that came loose and caused her to fall into the grease pit. From a report at al.com:

The grease trap is a six-foot deep, in-ground container. Sadie was playing in the area, which has picnic tables and a grassy area where children play, an official said. It wasn't the first time the Andrews family had visited the ice cream shop for the children to play and have treats. Lee County Coroner Bill Harris said Sadie stepped onto the lid of the grease trap, which apparently wasn't locked or secured, and fell in when the door opened. The door closed on top of her, he said.

Police said officers had already been dispatched to the scene because the girl was missing. When officers arrived, CPR was being was being performed. She was taken to East Alabama Medical Center, where efforts to revive her were unsuccessful, police said.

The tragedy raises a number of social and technical questions. For example, why weren't Sadie's parents better able to look after her? She was one of six children, so did the parents simply have more kids than they could watch? Also, why was an unprotected grease pit in an area where anyone could step on the lid?

These and many other questions likely will be raised in court proceedings. That's because the incident raises a number of legal issues that can become a costly thicket for many home and business owners. My wife, Carol, and I know because such issues -- and our efforts to protect ourselves from them -- led to the personal legal saga that is chronicled on this blog. All of the horror stories with which regular readers have become familiar -- my unlawful incarceration of five months, loss of our home in Birmingham to a wrongful foreclosure, Carol's broken arm here in Greene County, MO -- originated with issues like the ones present in Sadie Andrews' accidental death at the Auburn ice-cream parlor.

Why did such issues confront us? We had the misfortune of having a man named Mike McGarity move in next door to us in late 1998. McGarity has the trappings of a standard-issue suburban dad -- a wife, two kids, a job at Blue Cross and Blue Shield of Alabama. But his belligerent and threatening tone, which we encountered regularly, hinted that something dark was going on. We eventually learned that McGarity, in fact, has at least eight criminal convictions in his background.

Bruster's Real Ice Cream in Auburn
(From dailymail.co.uk)
And yet, this menacing fellow decided he, his kids, his kids' friends, other adults, and a veritable cast of thousands (other neighborhood kids, many of whom we didn't know, didn't know their parents) should be able to turn our yard into a playground -- without bothering to ask for our permission. When I instructed McGarity to keep himself and his minions off our property, I was greeted with "I'm going to sue you for harassment" and "We're going to keep on coming."

Why was that a concern, aside from the fact McGarity had proven he's an ass, the kind of person we didn't want to deal with? (When asked to control the ear-splitting barking of  his coonhound dog, McGarity's reply: "You just need to get ear plugs."). Well, it involved the kinds of legal issues that will be confronting Bruster's Real Ice Cream in the months ahead.

One such issue is called "premises liability." Here is how findlaw.com defines it:

When someone enters your property, they have a reasonable expectation of not getting injured. This means that you, as a property owner (or non-owner resident), are responsible for maintaining a relatively safe environment. This is known as "premises liability." For example, a courier delivering a package may sue you for injuries if he slips and falls on an oil slick in the driveway.

Bruster's Real Ice Cream now faces major headaches over premises liability. Sadie Andrews and her family, under the law, had a reasonable expectation that the property owner would maintain a relatively safe environment. Instead, she stepped on the lid of a grease pit and drowned in the muck below.

What if McGarity, or another adult or child from his yard, had slipped and fallen on our property? The injured party likely would have sued us, even if we had maintained a safe environment. (Note: McGarity had already hinted that he was a litigious sort, threatening to sue us for harassment because we tried to exercise our right to keep him off our yard. This just added to the mountain of reasons we did not want him, or anyone affiliated with him, coming on our yard.)

What if a child had fallen on our concrete driveway and sustained serious head trauma? Our insurance rates likely would have skyrocketed, and we might have been dropped as an insured altogether.

Premises liability cases, under Alabama law, involve numerous variables, so its hard to predict the outcome of a particular case. But even if the homeowner prevails in court, the defense of such a lawsuit is likely to be expensive and might still count as a mark against you with an insurance company. The best idea is to try to prevent injuries on your property, and that's exactly what we tried to do. Little did we know, at the time, that McGarity was a hardened criminal, he has access to attorney Bill Swatek and his lengthy disciplinary record, Swatek receives favors from corrupt judges in Shelby County, and Swatek has ties to the national Republican political establishment (through his son, Dax, a GOP "consultant.")

A classic Alabama premises-liability case is styled Tuders v. Kell, 739 So.2d 1069 (1999). (Ironically, Rob Riley was one of the plaintiffs' lawyers in the case.) It involves two couples and a mother with two children (Tuders), who were passengers on a boat at Neely Henry Lake when a severe thunderstorm approached. With lightning beginning to strike, they sought the nearest available shelter in a pier and boat house, still under construction, belonging to Kell. About 15 minutes into the storm, the boathouse collapsed, killing three members of the Tuders party and injuring others.

The Tuders filed a wrongful-death and personal-injury lawsuit, based largely on principles of premises liability. The case went to the Alabama Supreme Court, and the landowner (Kell) prevailed. But one can only imagine how much it cost to defend the lawsuit, and it's likely Kell's insurance rates went way up or he lost his insurance altogether -- all because individuals decided to use his property without permission.

Another common legal issue, especially where children are involved, is called "attractive nuisance." Here is how it is defined at insurancequotes.org:

This law states that landowners can potentially be held responsible for a child injured on the landowner’s property due to an attractive nuisance. This is normally any kind of object that is potentially dangerous while simultaneously being inviting to children.

This likely will be an issue in the Bruster's case. Was Sadie Andrews attracted to the loose lid that wound up costing her life? Our situation also involved kids, and if one had gotten hurt on our property, could a lawyer have argued that trees in our yard served as an attractive nuisance? The answer is yes. That argument might not have prevailed in court, but the cost to Carol and me would have been enormous, either way.

A classic attractive-nuisance case in Alabama is styled Foster v. Alabama Power Co. 395 So. 2d 27 (Ala: Supreme Court, 1981). It involved a 15-year-old boy, who climbed on a transmission-line tower, came in contact with a high-voltage wire, and fell to the ground, sustaining permanent personal injuries. The power company prevailed at trial, upheld on appeal, but the cost of defending the case likely was huge.

The Andrews family
(From dailymail.co.uk.)
Our situation involved one issue that was not present in the Bruster's case: trespassing. As a business operating at midday, Bruster's was open to the public, so Sadie Andrews and her family had every right to be there. Our private property was not open to the public, so McGarity and his gang had no right to be there; they were trespassers.

In general, a landowner has no duty to trespassers, other than to refrain from wantonly or intentionally injuring them. That can change, however, when children are involved. Courts have wrestled with age as a factor with trespassing children -- some jurisdictions holding that liability adheres only when the child is under a certain age, such as 16 or 14.

Alabama has removed age restrictions, but a landowner still can be held liable for injuries to a trespasser, as spelled out in Lyle v. Bouler, 547 So. 2d 506 (Ala: Supreme Court, 1989):

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and 
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and 
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Notice item (a), highlighted above. It says a landowner has a special duty to act if he knows children are likely to trespass. An article at alllaw.com says pretty much the same thing, calling it "Exceptions for Discovered Trespassers":

When people trespass with some regularity, property owners may begin to expect continued trespassing. In such a situation, the rationale of the general rule [that landowners owe no duty to trespassers] is destroyed. Now, the property owner can anticipate that dangerous conditions could pose safety hazards to people on the property. Thus, many states require property owners to warn discovered trespassers of dangerous conditions.

Mike McGarity and his gang of trespassers put us at significant legal risk, and we got cheated over and over again because we tried to protect ourselves from a menace with a criminal record.

Bottom line: We weren't aware of any dangerous conditions on our property, but what if McGarity or a child stepped in a hole that a ground squirrel had dug.? I saw such holes on our yard fairly regularly, and tried to fill them as soon as I spotted them. But what if I didn't get to such a hole in time, and a trespasser broke a leg? We likely would have been liable for damages -- and we certainly would have incurred major expense to defend a lawsuit from a belligerent criminal -- with access to a corrupt lawyer and crooked judges in Shelby County.

Is it any wonder we tried everything we could think of, under the law, to keep McGarity and his minions off our property? Is it any wonder Bruster's -- while not having to worry about the trespassing issue -- is likely to spend millions to settle a case that will revolve around issues of premises liability and attractive nuisance?

30 comments:

Anonymous said...

Thanks for sharing your insights about legal issues surrounding this case. What a horrible, horrible story.

Anonymous said...

I feel awful for everyone involved with this, especially the family.

Anonymous said...

Leaves me speechless.

Anonymous said...

Bruster's is gonna go bust over this.

Anonymous said...

Here is another legal term to keep in mind. Bruster's is likely to allege contributory negligence on the part of the parents -- and they probably have a point.

legalschnauzer said...

@1:50 --

Interesting point, and contributory negligence might be a legit argument. But it could be a PR disaster for the company.

Anonymous said...

Even if the area was not intended for use by patrons (the police tape appears to be on the other side of the driveway from the picnic tables)- did the provision of outside picnic tables and a grassy play area for patrons (many of whom were likely families with children) serve to make the area where the grease pits were an attractive nuisance?

Anonymous said...

It takes a revolting kind of human to question Sadie's parents 24 hours after this tragic death----and an even bigger narcissistic psychopath to make this story about you and your legal issues.

please move back to Alabama you ignorant nonsensical redneck.

legalschnauzer said...

@2:23 --

I think you make a solid point. The picnic tables and play area probably would constitute an attractive nuisance, and that likely will be raised in court proceedings. Putting a grease pit in proximity to a play area is a very bad idea.

legalschnauzer said...

@3:07 --

It takes an ignorant cretin to come to a blog written by Roger Shuler and think Roger Shuler's experiences and thoughts aren't going to be present -- especially when they correlate with the subject of a particular post. You probably are the same imbecile who has raised this issue before, and you just look more stupid with each passing reference. If you don't like reading about our legal issues, then go somewhere else -- and stick a corn cob up your ass while you're at it.

This is beyond your limited brainpower, but the failure of Sadie's parents to watch over their child will be a factor in any legal proceeding. And this blog, as its name implies, is about legal issues. Of course, you can only look at things through the prism of your unstable emotions. So predictable, so immature. And, with no name attached, so cowardly.

Anonymous said...

I had a bad neighbor once, but this McGarity clown makes him seem like a charmer.

Anonymous said...

McGarity actually threatened to sue you for telling him to stay off your property? If you weren't going to warn him, who was? What a dipshit!

legalschnauzer said...

@3:50 --

Yep, that's what he said -- and I almost guffawed. I thought, "This guy must have the mental capacity of a 5-year-old, and yet he works at Blue Cross? How does that happen."

BTW, your comparison is an insult to dipshits everywhere.

Anonymous said...

@3:37 --

On behalf of the many intelligent readers of this blog, here is a special message: Go f--k yourself!

Anonymous said...

Mr. Shuler, You should be advised you are libeling this poor girl's parents when you write "the failure of Sadie's parents to watch over their child."

No doubt you know the law better than anyone, however. So carry on with your willful ignorance.


legalschnauzer said...

@3:56 --

Be advised that you are ignorant. One, you aren't even quoting correctly from the post. Two, even if you were, the material is not remotely defamatory.

And yes, I do know defamation law a whole lot better than do you. If you feel so strongly about your position, contact me directly, and I will be happy to discuss. Of course, we all know that's not going to happen because you enjoy wallowing in your ignorance.

Anonymous said...

I found a George Will column the other day and was disturbed to find that it included George Will's thoughts. It hurt my wittle feelings. Can anyone help make me whole again? My life has been shattered by the thoughtless Mr. Will.

e.a.f. said...

parents looking after their children is a point in this case. The child was 6 years old. What was she doing in an area behind a business. In an era where people drive their children to and from school because of the current societal dangers or perceived as such, you would think people might keep a better eye on their children, or restrict them to their yard. Most 6 year olds do not have the run of the neighbourhood.

Now that is not to say the parents are at fault. we all know 6 yr olds are quite inquisitive and go about their business as they see fit, not their parents.

As to the business. They will have to defend themselves at great cost. it may be unfair, on the other hand, what would it have cost them to build an enclosure around the fat pit? It is what a reasonable person would have done.

Anonymous said...

This is @3:54. My comment was directed at @3:07, not @3:37.

legalschnauzer said...

e.a.f. --

Thanks for your comment. Just to clarify, the little girl who died was 3 years old. I think the family has a 6 year old -- with six kids, they almost have to have a 6-year-old But the girl who drowned was 3.

legalschnauzer said...

@3:56 --

So you contend that it's false to say the parents "failed to watch over their child"? If that's the case, how did the child wind up in a grease pit, and the parents had no clue where she was?

Anonymous said...

@3:07 --

Have you considered a brain transplant? I hear they can be quite effective for folks like you. What do you have to lose?

Anonymous said...

Several Other Children Have Fallen Into Sonic Grease Pits

5-Year-Old Falls into Giant Vat of Used Cooking Grease at Sonic

"According to Greenville Online, the child fell into the vat while eating with her family on the restaurant's patio. A "grease trap" was unknowingly set when the round disk and warning sign stating, "Warning: Do not enter. Poison Gas" that usually cover the spent oil were not in place. The grease container is hidden under landscaping and is positioned only a few feet away from the patio tables, making it difficult to see, especially without the warning sign."


Family of girl, 5, who 'nearly drowned' after falling into a cooking grease pit at Sonic eatery gets $19,000 settlement

Anonymous said...

LS --

You ask a helluva question at @4:27, and I doubt @3:56 will climb out from under his rock to respond. The parents obviously weren't watching their child. According to @3:56, the parents apparently were watching her, saw her fall into the grease pit and did nothing for 5-10 minutes. That's nuts. They still are going to come away millionaires, even though they clearly contributed to this tragic event. The onus is going to fall on Bruster's, no matter what.

legalschnauzer said...

@5:14 --

Thanks for sharing. Amazing this has happened several times.

Anonymous said...

Obviously the Auburn incident and others like it involve "grease traps" also known as "grease interceptors". These devices are required by plumbing codes to be placed between the place of business and the sewer which the business connects to. These devices separate grease from the sewage (and collect it for later removal and disposal) which prevents clogs in the sewer lines and allows for better treatment of the waste water at the waste water treatment plant.

Rule of thumb: if it is in a below ground pit it is probably grease separated from the sewage, and not spent cooking oils or fats (which have significant resale value*) and which are typically stored in locked containers above ground.

* https://www.bloomberg.com/news/articles/2017-05-03/grease-heists-turn-gross-goo-to-gold-for-crooks-in-biofuel-rally

Anonymous said...

@3:07 What is the proper amount of time before we can question the parenting skills Sadie's parents? I say that 24 hours actually exceeds the time limit required. I don't see a problem with immediately asking them why they weren't more attentive to their child. Too often people let their children run around and do what ever they want, but as soon as the child gets hurt, it's someone else's fault. Child neglect charges should be considered for the parents and maybe this behavior would stop.

Anonymous said...

Jury instructions snafu southern style!

"Among Judge Gerald Chatham, prosecutors Champion and Jay Hale, and defense attorneys Peterson and Darla Palmer, there are more than 100 years of legal experience. They'd never seen anything like a jury that tried to return a verdict twice before deadlocking."



http://www.clarionledger.com/story/news/local/2017/10/16/jessica-chambers-trial-jury-appears-confused-cant-agree-verdict/767413001/

"The deadlock came from a misunderstanding of the jury instructions, officials said. The instructions said that a guilty verdict had to be unanimous, but didn't directly say that about a not guilty verdict. It appeared the jury thought since they couldn't unanimously decide that Tellis was guilty, that made him not guilty."





Anonymous said...

My God, @8:05 took the words right out of my mouth. My theory is this: Many of today's white parents think they are doing the world a favor by having children. After all, how else are we to hold of "dark hordes," with their enormous birth rates? And, by golly, a couple that has six children -- probably with time to pump out one or two more -- is doing the world a huge favor. So they should not be subject to scrutiny.

e.a.f. said...

thanks for clarifying that. must get the brain checked and the eyes. mixing up 6 kids with having a 6 yr. old but missing the 3 yr. old was the one who died. O.K. got it now.

What the hell were the parents thinking, a 3 yr. old out of the yard??? If the parents were around and the child died I'd suggest the police look at negligent homicide or some such thing. Parents need to look after their children or not have so many. I know some of those southern states have lots of "Christian" types who don't believe in birth control, but really, then stop, fxxking and keep the size of your small family so you can manage it.