The opinion of the court was delivered by: McLaughlin, J.
This lawsuit arises out of an incident in July of 2010 when Jahli Clemens drowned in a swimming pool at an apartment complex owned by the defendant. The plaintiff, Jahli's mother, filed a complaint in 2011, alleging that the defendant was negligent with respect to the maintenance, control, and supervision of the pool area.
The defendant CLK Multifamily Management, LLC now moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The Court will grant the defendant's motion.
I. Summary Judgment Record
The Court's description of the summary judgment record
will be divided into two sections. Undisputed facts will be presented first, followed by a summary of the relevant disputed facts read in a light most favorable to the plaintiff. See Sheridan v. NGK Metals Corp., 609 F.3d 239, 251 n.12 (3d Cir. 2010).
On July 11, 2010, Jahli Clemens, the plaintiff's son, died as a result of drowning in a pool located on the grounds of Sweetbriar Apartments in Lancaster, Pennsylvania. Defendant Motion for Summary Judgment/Plaintiff Opposition ¶¶1-2. At the time of the incident, Defendant CLK owned the Sweetbriar Apartments. Defendant Motion for Summary Judgment/Plaintiff Opposition ¶3.
Jahli Clemens was born on August 25, 2007, and was not yet three years old at the time of the incident. Defendant Motion for Summary Judgment/Plaintiff Opposition ¶5. Jahli did not know how to swim and prior to July 11, 2010, had been in a swimming pool on only three prior occasions. Def. Ex. A, pg 33., lines 5-10; pg. 36, line 23-24 and pg. 37, line 1.
Shavon Melendez was a tenant of the Sweetbriar Apartments. Defendant Motion for Summary Judgment/Plaintiff Opposition ¶4. Ms. Castro and her children visited Ms. Melendez the weekend of July 4, 2010, and July 11, 2010; it was Ms. Castro's second visit to Sweetbriar during which the incident occurred. Defendant Motion for Summary Judgment/Plaintiff Opposition ¶¶8-9.
On the first visit during the weekend of July 4, 2010, Jahli was brought to the swimming pool, but he refused to enter it. Pl. Ex. I, pg. 46, lines 3-9.
A 6 foot fence surrounds the pool area. Def. Ex. B. During the 2010 swimming season, the pool was open from 10 a.m. to 8 p.m. Def. Ex. D pg. 177, line 24. When the pool is closed, a padlock is used to lock the pool gate. Def. Exhibit E, pg. 20, lines 2-6.
Sweetbriar Apartments operated the pool pursuant to a bathing permit issued by Manheim Township that was valid at the time of the incident. Def. Ex. F. Representatives of the Commonwealth of Pennsylvania inspect the pool each year. Def. Ex. D, pg. 124, lines 1-3. The pool is inspected by Sweetbriar personnel on both a quarterly and annual basis. Def. Ex. D, pg. 124, lines 4-12; pg. 125, lines 18-25.
Signs setting Sweetbriar's Pool Rules were posted near the pool gate. Def. Ex. H; Def. Ex. A., pg. 55, lines 23-24. The Rules stated: "There is no lifeguard on duty, swim at your own risk;" "For safety, running, pushing, wrestling or horseplay is not allowed." Def. Ex. H.
A second sign was posted to the right of the pool gate that read: "Do not swim alone" and "Parents are responsible for their children's safety." Def. Ex. H. Both signs were present at the time of the incident. Def. Ex. I, pg. 98, lines 21-24; pg. 99, lines 1-6.
Shavon Melendez, as a resident of Sweetbriar, received a copy of the "Sweetbriar Swimming Pool Policies." Def. Ex. J. In order for tenants to receive a copy of the key to the pool, tenants must sign a copy of the Sweetbriar Swimming Pool Policies, which Ms. Melendez did on May 20, 2010. Def. Ex. J. The Sweetbriar Swimming Pool Policies also states: "The swimming pool is swim at your own risk; there is no lifeguard on duty; children are solely the responsibility of their parents or guardians." Def. Ex. J.
Shortly before the incident, Shannon Nunez, the property manager, sent a letter to Sweetbriar residents stating that if the following behaviors do not stop, we will close the pool until further notice: Children under 14 are not permitted in the pool area at all without a parent/guardian; Each apartment is allowed 2 guests only. Pl. Ex. S. The letter itself is undated, but the deposition testimony states the letter was circulated not long before the incident. Pl. Ex. T, Pg. 25 lines 13-25; Pg. 26, lines 1-16; Pl. Ex. J, Pg. 90, lines 8-23, stating the letter was distributed about a week prior to the incident.
The letter also stated that the building realizes that outsiders are using the pool after the pool has been closed by jumping the fence and advises that No Trespassing signs have been posted but tenants should also contact the police to report such trespassers. Pl. Ex S. On July 11, 2010, Ms. Castro, Jahli Clemens, Kai Clemens, Ms. Tellechea, MS. Melendez and Ms. Meldendez's two children arrived at the pool at approximately 2:00 p.m. Def. Ex. A, pg. 78, lines 4-7. Initially Jahli was wearing floaties on his arms, but before the incident the floaties were removed and not put back on. Def. Ex. A., pg. 92, lines 5-16.
After approximately 30 to 45 minutes, Ms. Castro and Ms. Melendez went to purchase food for the group. Def. Ex. A., pg. 88, lines 19-24. After eating, Jahli told Ms. Castro that he needed to use a restroom. Def. Ex. I, pg. 38, lines 6-24. Jahli walked to Ms. Meldendez's apartment to use the restroom. Def. Ex. I, pg. 38, lines 6-24; pg. 39, lines 1-9. After using the ...