SHOEMAKE V. FOGEL, LTD., A.T.
826 S.W.2d 933 (1992)
NATURE OF THE CASE: Shoemake (P) appealed a decision which reversed a trial court ruling
denying Fogel (Ds) offset for P's contributing negligence in a death survival action for the
death of P's child.
FACTS: One month before her second birthday, Miranda Gilley nearly drowned in the
swimming pool at her apartment complex. The child was rescued and temporarily revived, but
four months later died from the injuries she had suffered. P sued Ds, the apartment complex
owners, Fogel, Ltd. A.T. and Federal Group I, and the apartment complex manager,
International Property Management, Inc. P brought a survival action in her capacity as
representative of the child's estate. The jury awarded $285,492.28 to P on her wrongful
death claim, and $50,969 to the child's estate in the survival action. Considering the
negligence that caused the near-drowning, the jury attributed a total of fifty-five percent
to Ds, and the remaining forty-five percent to P. As to the wrongful death action, the trial
court reduced P's recovery by forty-five percent but refused to do so in the survival
action. The appeals court reversed and P appealed.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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