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Rasberry v. Casey Kilian and ABC Insurance Co.

Court of Appeals of Louisiana, Fifth Circuit

December 12, 2018

ANGELA MENZER KILIAN RASBERRY
v.
CASEY KILIAN AND ABC INSURANCE COMPANY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 741-914, DIVISION "H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, ANGELA MENZER KILIAN RASBERRY PERRY R. STAUB, JR. MATTHEW S. FOSTER

          COUNSEL FOR DEFENDANT/APPELLEE, CASEY KILIAN CHRISTOPHER P. LAWLER

          COUNSEL FOR DEFENDANT/APPELLEE, ALLSTATE INSURANCE COMPANY C. SHANNON HARDY, JOHN W. PENNY

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst

          JUDE G. GRAVOIS JUDGE.

         Plaintiff, Angela Menzer Kilian Rasberry, appeals a summary judgment granted in favor of defendant, Casey Kilian ("Casey"), and his homeowner's insurer, Allstate Insurance Company, dismissing her suit with prejudice. Plaintiff filed suit against Casey, her former father-in-law, following the tragic death of her 18-year-old son, Michael Kilian, Jr. ("Michael"), after he was found unresponsive in Casey's swimming pool on September 4, 2013. Plaintiff alleged that Casey was negligent, breaching various duties, including a duty to supervise Michael while he swam because he knew that Michael suffered from a seizure disorder, and also that the pool was defectively constructed and maintained. The trial court found that under the particular facts of this case, Casey had no duty to supervise Michael, a competent adult, when he swam, and that plaintiff failed to put on evidence regarding negligence in the pool's construction, maintenance, or repair. Accordingly, the trial court granted summary judgment in favor of defendants, dismissing plaintiffs suit with prejudice. This timely appeal followed.

         FACTS AND PROCEDURAL HISTORY

         In August of 2013, Michael was 18 years old and resided in Tennessee with his mother, plaintiff herein. On August 30, 2013, Michael traveled to Louisiana to visit his father, Michael Kilian, Sr. ("Michael, Sr."), and his grandfather Casey, defendant herein.[1] According to his mother's affidavit, submitted in support of her opposition to defendants' motion for summary judgment, Michael had suffered from a seizure disorder from around the time he was five years old.[2] The record indicates that Michael took daily medication to control the seizures. Plaintiff said that Michael was conscientious about taking his medication, and the record indicates that Michael had not suffered a seizure for several months prior to his death.

         Casey and Michael, Sr. picked up Michael at the bus station in New Orleans on the morning of August 30, 2013. Because Michael said he needed to see a doctor, Casey and Michael, Sr. took Michael to see Casey's primary care doctor later that same day, in order to establish a doctor/patient relationship.[3] Casey stated in his deposition that he was not present in the exam room with Michael and the doctor, and thus did not hear what they discussed relative to Michael's health or medication. Casey testified in his deposition that he was aware Michael had had seizures in the past, because plaintiff had told him so, but he did not know the specifics about the condition and had never seen Michael have a seizure. At his deposition, Casey did not remember any specific medication that Michael was prescribed for the seizures or if he was taking medication at the time of his death, though the police report reflects that he told paramedics that Michael had taken his medication for seizures that day.

         Casey testified in his deposition that he owned his home in Metairie with the pool since 1988. After Hurricane Katrina, the pool was replastered and the pumps repaired. The pool had underwater lighting and the pool area was illuminated with outdoor lights. Michael had used the pool during his prior visits to the home. Casey testified that Michael had used the pool already several times during this particular visit without incident, and that from his observation, Michael knew how to swim. Casey testified in deposition that he maintained the pool in good repair. Plaintiff did not introduce any evidence that the pool suffered any defects at the times pertinent hereto.

          On the night of September 4, 2013, the record reflects that Casey, his wife, Michael, and Michael, Sr. and his wife all went out to dinner to celebrate Casey's birthday. Both Casey and Michael, Sr. testified in depositions that Michael did not consume alcoholic beverages at dinner, nor did they see him consume any that day.[4] Upon returning to Casey's house that evening after dinner, Michael advised the others that he was going to go swimming. His father, who enjoyed swimming with him, said that he would be joining him after working on his résumé. Casey's wife also told Michael that she would come outside with him shortly. Casey testified in deposition that all of the pool lighting was on at this time.

         At one point, Casey's wife looked through the living room window to the backyard and saw Michael sitting on a ledge at the deep end of the pool, and he waived to her. When she went outside approximately 15 minutes later, she saw Michael at the bottom of the deep end of the pool. After she screamed for help, Michael, Sr. and Casey ran outside and pulled Michael from the pool. They called 9-1-1. While they waited for paramedics to arrive, Casey and Michael, Sr. performed CPR on Michael. Casey testified that a lot of food, but no water, kept coming out of Michael's mouth as they performed CPR. Michael died several days later at the hospital.

         On appeal, plaintiff argues that the trial court erred in holding, categorically, that as a matter of law no duty can exist for a host to supervise or monitor a competent adult as he swims in a residential pool. She argues that all hosts owe a duty of reasonable care commensurate with the particular circumstances involved. She argues that Casey's knowledge that Michael suffered from a seizure disorder created the legal duty for Casey to ...


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