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Torts keyed to Robertson
Zellmer v. Zellmer
Citation:
Supreme Court of Washington, 2008. 164 Wash.2d 147, 188 P.3d 497.Facts
The Plaintiffs, Stacey Ferguson and Bruce McLellan were the biological parents of three year-old, Ashley through their previous marriage. Plaintiff Ferguson and the Defendant, Joel Zellmer, later got married and moved into the Defendant’s house on the day of the marriage. Normally, Ashley went to day care while Plaintiff Ferguson worked. However, on the day in question, Ashley stayed home with the Defendant so he could take care of her.
According to the Defendant, around 5:00 PM, he started a video for Ashley in her bedroom and then went downstairs to build a fire. A hour later, he realized that Ashley was no longer in her room. He noticed that the sliding glass door was open, which led to the backyard. He went outside and found Ashley floating in the swimming pool. He then pulled her out and called 911. Upon arrival, the paramedic resuscitated Ashley, but she later died in the hospital a couple of days later. The Plaintiffs brought a wrongful death suit against the Defendant.
At trial, the Defendant argued that he stood in loco parentis to Ashley because he provided her emotional and financial support. According to the Defendant, Ashley called him “daddy,” and he treated her as his own daughter. Plaintiff Ferguson argued the Defendant’s characterization of the Defendant’s relationship with Ashley and denied that he supported her financially. Plaintiff Ferguson also stated that he was unemployed throughout their marriage and that they provided for Ashley’s needs. Additionally, she stated that Ashley spent little time with the Defendant and was still uncomfortable around him on the day that she drowned.
A visitor to the Defendant’s home testified that she witnessed an argument between the Defendant and Plaintiff Ferguson during which the Defendant called Ashley a “little bitch.” Plaintiff Ferguson also claimed that the Defendant assaulted her twice. Plaintiff McLellan also stated that he paid child support for Ashley and regularly exercised his visitation rights. He claimed he paid half of Ashley’s day care, and medical insurance and other financial support. He also stated that Ashley called him “dad’ and that he was an active figure in her life.
Plaintiff Ferguson also casted doubt on the Defendant’s version of the events on the day of Ashley’s death. She stated that Ashley would never had gone outside on a cold night just in her pajamas or gone to the unheated swimming pool. She further said that a few days following their marriage, that the Defendant purchased a $200,000 accidental insurance policy for Ashley, naming himself as the co-beneficiary. Plaintiff Ferguson also noted that there was an ongoing criminal investigation of Ashley’s death and that the Defendant failed to cooperate with the policy which showed that the drowning happened as a result of his intentional misconduct.
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Topic Resources
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Negligence