SHOEMAKE V. FOGEL, LTD., A.T. 826 S.W.2d 933 (1992) CASE BRIEF

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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