Parents whose son drowned win ruling in negligence case

High court vacates earlier decision that ruled in favor of swimming pool manufacturer

Posted 4/17/19

The Rhode Island Supreme Court has vacated a lower court decision in a lawsuit that arose out of the tragic death of 4-year-old Nicholas Gear, who drowned in a swimming pool in Portsmouth over …

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Parents whose son drowned win ruling in negligence case

High court vacates earlier decision that ruled in favor of swimming pool manufacturer

Posted

The Rhode Island Supreme Court has vacated a lower court decision in a lawsuit that arose out of the tragic death of 4-year-old Nicholas Gear, who drowned in a swimming pool in Portsmouth over Memorial Day weekend in 2012.

In a decision issued Tuesday, April 16, the high court ruled in favor of the boy’s parents, Raymond Oliver and Tiffany Gear, who had previously sued the company that sold the pool — NAMCO in Seekonk — for negligence.

The plaintiffs were appealing a decision by the R.I. Superior Court that granted summary judgment in favor of NAMCO, the defendant. By vacating the lower court’s decision, the case is now remanded back to Superior Court.

According to court documents, Nicholas was in the care of his grandmother, Laura Gear of Portsmouth, on May 27, 2012. At one point she left the house, located at 118-120 Cottage Ave., to do some errands and left her 14-year-old daughter to look after the boy.

“While Gear was away from the premises, Nicholas gained access to the pool and drowned,” the document reads.

According to the Supreme Court decision, Ms. Gear had purchased the pool and accompanying “Slide & Lock’ A-Frame Pool Ladder” from a NAMCO store in Seekonk on March 19, 2012.

A NAMCO employee provided her with instructions on how to install the pool on her property, including several pool-installation companies and prices based on the size of the pool. The document stated, in part, “NOTE: YOU ARE UNDER NO OBLIGATION TO USE ANY OF THE INSTALLERS ON THIS LIST AND WE ENCOURAGE YOU TO RESEARCH YOUR DECISION THOROUGHLY.”

After unsuccessfully trying to reach two or three pool installers on the list, Ms. Gear contacted Lot-2 Enterprises and set up the installation. Lot-2 requested that Ms. Gear obtain written permission for the installation from the property’s owner, Paul Seddon, which Ms. Gear provided.

Lot-2 installed the pool on May 21, 2012. The company’s owner and primary contractor, John Dominique, testified at his deposition he did not ask Ms. Gear to see a building permit before installing the pool, but “thought (he) saw (a permit) in the window” of the house.

Ms. Gear testified at her deposition that the installers dug an area for the pool, set the pool in the ground, began filling the pool with water, and then instructed her to check the water and shut it off at night. Ms. Gear testified she understood the company installed only the swimming pool itself, and not the ladder or the fencing surrounding the pool. 

A valid permit to install the pool was never obtained by the installer, Mr. Seddon, or Ms. Gear, according to the court transcripts. The following day, a friend of Ms. Gear’s assembled the ladder. 

The parents filed suit in Superior Court on Feb. 1, 2013, which was subsequently amended to included negliegence claims against five defendants, including Mr. Seddon’s insurance companies, NAMCO, and John and Mary Dominique collectively.

“The plaintiffs alleged, in part, that defendants negligently installed or allowed the pool to be installed without proper permitting and in violation of Portsmouth town ordinances, the Rhode Island and building code, and Rhode Island Department of Health regulations. The plaintiffs further alleged that defendants negligently installed the safety ladder,” the court document reads.

In September 2015, NAMCO filed a motion for summary judgment, arguing that because it didn’t install the pool or the ladder, and because Lot-2 was not its agent, NAMCO had no responsibility regarding the pool’s installation. Furthermore, NAMCO asserted the plaintiffs could not prove the company’s actions were the “proximate cause” of Nicholas’s death. 

The plaintiffs filed an objection to NAMCO’s motion, arguing it wasn’t clear whether or not Lot-2 acted with “apparent or inherent agency authority on behalf of NAMCO.” In addition, the parents contended that NAMCO had “failed in its duty to warn Gear of the dangers of not utilizing the sliding safety lock mechanism and safety padlock system” of the ladder.

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A lifelong Portsmouth resident, Jim graduated from Portsmouth High School in 1982 and earned a journalism degree from the University of Rhode Island in 1986. He's worked two different stints at East Bay Newspapers, for a total of 18 years with the company so far. When not running all over town bringing you the news from Portsmouth, Jim listens to lots and lots and lots of music, watches obscure silent films from the '20s and usually has three books going at once. He also loves to cook crazy New Orleans dishes for his wife of 25 years, Michelle, and their two sons, Jake and Max.