Parents of boy who drowned can sue seller of pool over installation.

Byline: Eric T. Berkman

Parents of a 4-year-old boy who drowned in his grandmother's swimming pool could bring a negligence claim against the company that sold the pool even though another company installed it, the Rhode Island Supreme Court has ruled.

A Superior Court judge had granted summary judgment for defendant NAMCO, the pool vendor. Specifically, the judge found insufficient facts to allege that Lot-2 Enterprises, the pool installer that the boy's grandmother picked from a list provided by the defendant, had actual or apparent authority to act as NAMCO's agent.

But the Supreme Court reversed, pointing to testimony that Lot-2 was on a list of installers provided by NAMCO; that the NAMCO employee who provided the list indicated that it contained subcontractors who knew how to install NAMCO pools; and that NAMCO personnel randomly inspect pools installed by Lot-2 on a periodic basis.

"After considering these facts in the light most favorable to plaintiffs, we are of the opinion that an issue of fact exists as to whether Lot-2 acted as NAMCO's agent, or whether [the grandmother] reasonably believed that Lot-2 was NAMCO's agent," Chief Justice Paul A. Suttell wrote for the court. "These questions are not amenable to determination by the hearing justice on summary judgment, and should properly be considered by the factfinder."

The 15-page decision is Oliver, et al. v. Narragansett Bay Insurance Company, et al., Lawyers Weekly No. 60-036-19. The full text of the ruling can be found here.

Plaintiffs' counsel, Thomas M. Dickinson of Johnston, could not be reached for comment before deadline. NAMCO's attorneys, Joseph A. DiMaio and George M. Trutza, of Providence, referred requests for comment to the company's liability insurer, Liberty Mutual Insurance. A Liberty Mutual spokesperson said the company does not comment on litigation.

Tragic death

On March 19, 2012, Portsmouth resident Laura Gear bought an above-ground swimming pool and accompanying "'Slide & Lock' A-Frame Pool Ladder" from defendant NAMCO's store in Seekonk, Massachusetts.

Gear returned to the store about two weeks later to pay the remaining balance. While she was there that day, she asked for information on getting the pool installed. A store employee gave her a document that listed several pool-installation companies and installation prices that varied based on the pool's size.

On the other side of the page, the document stated that the list of installers and prices was for...