Date of Injury: June 6, 2003
Summary Judgment: Not on liability; but court granted summary judgment to plaintiffs on issue of comparative fault of Eritrea's father, who was not present, and her sister who was in the swimming pool at the time of the near-drowning.
Injuries: Anoxic brain injury from near-drowning to Eritrea Andemariam and lifetime care costs; loss of consortium to Noah Mesgane, Eritrea's father.
Medical Expenses: Medical expenses for Eritrea Andemariam at the time of settlement were substantial and all paid by DSHS. The DSHS lien was significantly reduced by negotiations.
Settlement: $1,500,000.00 (Total)
Report Submitted By: Ron Perey
Facts:
This case involved a claim for severe anoxic brain injury resulting in persistent vegetative state suffered by Eritrea Andemariam on June 6, 2003, in a near-drowning accident at the swimming pool of the Alpenhaus Apartments. Eritrea lived at Alpenhaus Apartments with her sister Meron and her parents. Alpenhaus Apartments was owned and operated by the defendants, The Morton Enterprises (“Morton�) and managed by Phillips Real Estate Services (“Phillips�). The resident manager living on premises, Frank Hilliard, IV (age 62), was hired as the resident manager in August of 2002, at the end of the pool season. He was not trained in any way on the use of the safety float line or any aspect of pool safety.
This catastrophic near-drowning incident occurred on Friday, June 6, 2003, the last day of school and a few days after the season-opening of the Alpenhaus Apartments swimming pool in Edmonds, Washington. The Alpenhaus Apartments had about 65 units. The near-drowning happened on a very hot and sunny Friday afternoon, on June 6, 2003 when Eritrea (then age 17), along with her sister Meron (age 16), cousin Simret (age 22) and stepmother Senait (age 31) went to wade and cool off in the swimming pool in the common area of the Alpenhaus Apartment complex. All four individuals were non-swimmers and were immigrants from Eritrea, North Africa, and were wearing shorts because they did not own bathing suits. None had ever been in a pool before. Eritrea and Meron entered the shallow end of the pool while Simret and Senait sat on the pool edge. While wading in the pool, unaware of the non-uniform slope, abrupt slope change to 9 feet, Eritrea and Meron Simret went underwater almost simultaneously and started drowning within a matter of seconds. Simret and Senait waded in the water to help, but Simret was pulled into the water and started to drown herself.
Over the next five minutes, pandemonium set in because there was no lifeguard; no one knew where a 911 phone was; and no one knew how to save the drowning young women. Bystanders in the pool area were able to rescue Meron and Simret, and do effective resuscitation but no one saw Eritrea or realized she was missing. Five to ten minutes had passed before it was realized that a third person (Eritrea) was still underwater, Frank Hilliard, V, the resident manager’s son, dove in and pulled Eritrea from the bottom of the deep end to the surface. Eritrea was unconscious and not breathing. Chest compressions and CPR were started on Eritrea by someone. Someone had called 911, and firefighter/paramedics arrived within minutes and started professional CPR on Eritrea. She was then taken by ambulance to Children’s Hospital in Seattle, Washington. As a result of her near-drowning, Eritrea, who is now 20 years old, is now in a persistent vegetative state and has been institutionalized in a long-term care facility. Her condition will likely never improve.
During the course of litigation plaintiffs' lawyers learned that no safety float line (a rope with floats used to separate the shallow and deep areas of a swimming pool) was installed at about the 4 foot depth in the swimming pool on the day of the incident. A float line serves the purpose of a visual warning, a physical barrier, and an emergency hand hole. The float line was hanging uselessly on the pool enclosure fence. It was used during the winter to hold up the tarp covering the pool. Further, plaintiffs' lawyers discovered a photograph of the pool with the float line in place prior to the date of incident that had been used to advertise the apartment on defendant's website. The parties disputed whether a float line was required. Plaintiffs argued that a float line was required by national swimming pool industry standards and by WAC 246-260-090(11)(1991). Defendants' argued that the industry standards did not require a float line and that the Washington Administrative Code provision made the use of a float line optional because the pool had a bottom marker line (a tile line spanning the width of the pool). The court did not make a decisive rule whether a float line was required prior to trial.
Defendants asserted affirmative defenses of comparative fault on the part of Eritrea, her father, her sister, and her stepmother. The parties filed cross-motions for summary judgment on that issue. King County Superior Court Judge Mary Roberts granted plaintiffs' motion for summary judgment and dismissed the affirmative defense regarding the comparative fault of Eritrea's father and sister. However, she allowed the comparative fault of plaintiff Andemariam and her stepmother to survive summary judgment and be presented to the jury.
The parties settled this case through post-mediation negotiation with mediator JoAnn Tomkins. The settlement of $1,500,000 was finalized the week before trial, which was scheduled to begin on January 9, 2006. The net settlement proceeds were divided between Eritrea and her father. A special needs trust was established for Eritrea so she could maintain access to public benefits.
February 17, 2006
Case: Eritrea Andemariam and Noah Mesgane vs. The Morton Enterprises, LLC and Phillips Real Estate Services, LLC
County: King County Washington, Cause No. 04-2-16937-2 SEA
Trial Judge: Judge Mary Roberts
Plaintiffs: Eritrea Andemariam, Noah Mesgane (Eritrea's father) – Eritrea’s mother
was deceased.
Defendants: The Morton Enterprises, LLC. And Phillips Real Estate Services, LLC.
Trial date: January 9, 2006
Date of Settlement: December 12, 2005 - $1,500,000
Plaintiffs’ Attorneys: Ron Perey, Thomas V. Harris, and Doug Weinmaster
Perey~Harris, Seattle, Washington
Defendants’ Attorneys: William E. Gibbs, Bergman & Gibbs (Bellevue) for defendant The Morton Enterprises, LLC.
Colleen Barrett, Barrett-Worden (Seattle) for defendant
Phillips Real Estate Services, LLC.
Plaintiffs’ Experts: Thomas A. Ebro, Lutz, FL, (aquatics safety); James S. O'Connor, Miami, FL, (aquatics safety); Michael Dilley, Bellevue, WA, (certified pool operator); G. David Sloan, Ph.D., Olympia, WA (human factors); Allen E. Klein, Sherman Oaks, CA (apartment property management and training); Jerome Modell, M.D., Gainesville, FL, (medical aspects of the drowning process); Joseph T. Capell, M.D., (physical medicine & rehabilitation / life expectancy); Anthony Choppa, M.Ed., Bothell, WA, (life care planner); Lowell Bassett, Ph.D., Seattle, WA (economist); Jay Syverson, Seattle, WA, (computer modeling and animation).
Defendants’ Experts: William N. Rowley, Ph.D., Palos Verdes, CA, (aquatics safety); Don Witte, Altus, OK, (swimming pool design and safety); John W. Magnuson, Lakewood, WA, (apartment property management); Christine Wood, Ph.D., Menlo Park, CA, (human factors); Mary Rief, M.D., Seattle, WA, (neurology / life expectancy); Rebecca Bellarive, Portland, OR, (life care planner); William Partin, CPA, Bellevue, WA (economist).
Mediator: Hon. JoAnn Tompkins (Ret.) November 14, 2005
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