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
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

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
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 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

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
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 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?

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