Exercises #s 1-4 inclusive using Massachusetts statutes and Massachusetts case law and/or Federal case law.
John and Mary Cooke own a home in Anytown, Your State, with a private swimming pool in their backyard. Pursuant to local ordinances, their backyard is completely fenced by a five-foot wooden fence and the gate is kept closed with a latch at the top of the fence. The Cookes live next door to the Andersons, a family with a two-year-old son, Joseph. Joseph loved water, and the Andersons had joined the Cookes swimming in the Cookes’ pool on numerous occasions. Although not yet “swimming” on his own, Joseph greatly enjoyed splashing in the pool and looked forward to playing with the Cookes’ dog, Rover. From the moment Joseph woke up in the morning until he went to bed at night, his favorite topics were “pool” and “dog.” Rover spent most of his days in the pool enclosure, relaxing on the pool deck or swimming. Joseph would become extremely excited anytime he heard Rover bark from next door. One Saturday morning Joseph was playing on the screened-in porch of his home. He seemed quite content playing with his toys while his parents completed some odd jobs around the house. Once, when his mother checked on him, he was gazing toward the Cookes’ house and listening for Rover’s bark. His mother told Joseph that they could go swimming and visit Rover later in the day. The parents lost track of time, each assuming that the other had been checking on Joseph. All of a sudden, the Andersons realized that neither one of them had checked on Joseph for a while. When they went to the screened-in porch Joseph was nowhere to be found and the outside screen door was slightly ajar. They called to Joseph, but he didn’t answer, even though he was usually very good about coming when called. The Andersons immediately started looking outside for Joseph. He was not in the Andersons’ yard. At that moment, they noticed that the gate to the Cookes’ pool fence was wide open. Fearing the worst, they rushed through the gate calling for Joseph. Initially nothing appeared out of the ordinary except that Rover was dashing around the outside of the pool and barking as if to attract someone’s attention. Then they noticed the pool blanket was slightly pulled back from the side of the pool at the deep end. The Cookes always kept the pool covered with a pool blanket when the pool was not in use. The blanket kept the water from losing heat during the night and kept debris from falling into the water. The pool blanket was constructed of two layers of blue plastic material with small air pockets between the layers. The blanket, floating on the surface of the water, covered the entire pool surface except for a small area left open so Rover could swim. When the Cookes heard the Andersons yelling, they rushed out to the pool to find out what was the matter. When they heard that Joseph was missing, the Cookes’ first thought was that he might have fallen into the pool while following Rover. John Cooke called for Phil Smith so Phil could help remove the pool blanket. Phil was a fifteenyear-old neighbor who often came to play with Rover. Phil had been playing with Rover inside the pool fence that morning. Phil did not answer so the Cookes and the Andersons together started pulling back the pool blanket. To their horror, they saw two bodies in the deep end of the pool. They all jumped into the pool and pulled out the bodies. The two women tried to revive Joseph and Phil while the two men called the police and fire departments. When they arrived, the police and firefighters joined the Andersons and the Cookes in trying to revive the two boys. The two boys were rushed to the hospital but died a few hours later. The police report of the incident showed that Mr. Cooke remembered opening the gate early in the morning while he was doing work around the pool. Joseph must have opened the outside screened door to his house and entered the pool enclosure looking for Rover. He may have fallen into the deep end of the pool while chasing Rover. The pool blanket would have parted enough from the side of the pool to allow Joseph to fall into the water. Although not a very good swimmer, Phil apparently jumped in to rescue Joseph at the same place Joseph had fallen in. The police theorized that Phil became disoriented while trying to rescue Joseph and couldn’t get out from under the pool blanket.
The Cookes have just been told that their neighbors are planning to file suit against them, holding them responsible for Joseph’s and Phil’s deaths. The Cookes hired your firm to represent them. The senior partner in your firm has asked you to research the law of your state and answer the following questions: 1. Does your state follow the attractive nuisance doctrine, and, if so, how does it apply to private swimming pools? 2. Can the Andersons hold the Cookes responsible for Joseph’s death? 3. What duty did the Cookes owe Phil, and can the Smiths hold the Cookes liable for Phil’s death?
Research the problem you have chosen. List the citations to any relevant legal sources. Using your research, write the answer(s) to the selected research problem.
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