Damaria Hooten was a 6-year-old Georgia girl who went out to play one afternoon in January 2019 with her brother and some neighborhood friends. Pole Bridge Creek runs near The Hills at Fairington Apartments, the complex where they lived. The kids began climbing trees by the creek, along the embankment. A branch broke and Damaria fell into 6-foot deep water. She was unable to climb up the embankment, the other children couldn’t help her and Damaria drowned.
Raylitha Hooten, Damaria’s mother, is filing a premises liability lawsuit against Mercy Housing, the parent corporation that owns The Hills. Hooten alleges that the housing complex was negligent in not putting up a fence by the creek.
Arthur York is the attorney representing Ms. Hooten and said that Raylitha never knew about the creek. The Hootens lived at the front end of a large complex and the creek was in the back, running under 2 bridges and surrounded by the trees the kids were climbing.
“If you have a pool, everybody sees it…and you have to put a fence around it,” York said. “With…a creek, it poses just as much of a risk, if not even more of a risk, because it’s in an area that is tucked away.”
Premises law in general requires property owners to take steps to protect against potentially unsafe conditions, especially with regards to children.
For example, even if a child trespasses, gets on a faulty swing and injures themselves, the property owner might still be liable if the swing were in plain sight and in an area where there were children frequently passing by. In the Damaria Hooten case, there was no trespassing involved. State law in Georgia does hold property owners liable if they fail to correct unsafe conditions.
If this case goes to trial, the result will hinge on whether a jury deems that Mercy Housing could have reasonably foreseen that this tragedy would occur. York notes that there are several small children living in the complex. The attorney believes that it could have been reasonably foreseen that these children would go down to play and that they were at an age where they would not be cognizant of the dangers.
In that regard, York may also cite the words of local fire captain Dion Bentley, who said that with the high embankment, the creek is “tough for a kid to get out. It’s just sad.”
Of course every case has 2 sides to it, and so far Mercy Housing has chosen not to comment. The lawsuit is seeking damages for the pain and suffering of Damaria’s mother, along with medical and funeral expenses. With the Georgia courts still working remotely—and therefore more slowly—due to COVID-19, York said it may not be resolved for another 2 years.