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Lawyers weigh liability in Hobart drowning deaths

TatianSmith her sons TerriDonel  |  TeresAuch Schultz/For Post-Tribune

Tatiana Smith and her sons, Terrion and Donel | Teresa Auch Schultz/For the Post-Tribune

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Updated: July 23, 2014 6:35AM



HOBART — The public facts surrounding the drowning deaths of brothers Terrion and Donel Smith are few, and the likely lawsuit to follow may be lengthy and complicated.

One area attorney said his firm is considering representing the Smith family after being approached by another attorney helping the family.

On June 14, Terrion, 8, and Donel, 9, fell into a water-filled pit at 4060 Missouri St., in Hobart, while tossing rocks into the water, according to witnesses.

A Portage man, Alan Simmons, confirmed Friday he sold the property to Randy Goldschmidt, a Hobart contractor in May 2013, though county property records indicate that sale has not yet been recorded.

Goldschmidt declined to comment on the record, referring all questions to his attorney, Ross Hubble, of Valparaiso.

Since the accident, the water has been drained from the hole, and it was backfilled Monday by Goldschmidt. The Post-Tribune on Saturday reported Goldschmidt had no permits for excavation or other work at the site.

If the case ever sees the inside of a courtroom, the key will be determining if the water-filled pit where the boys died was an “attractive nuisance.” In other words, was the pit a temptation to children or others, drawing them to some sort of danger.

“Before we jump into it, we have to make sure it’s meritorious,” attorney Kenneth Allen said Friday. “The facts as we’re seeing them would justify proceeding this case to a jury to determine if (the pit) was an attractive nuisance.”

Attorney Tony Walker, of Gary and Chicago, said the attractive nuisance doctrine hinges on a number of criteria.

“At the place where the condition existed, the owner should’ve known children were likely to trespass to go the pond,” Walker said, adding the owner should have known there was “an unreasonable risk of death or serious bodily injury if children went over to play in the pond.”

“Because of their youth, it’s expected kids don’t fully realize the risk involved when they go to such a pond.”

The property owner also should have weighed the risks of someone going into the pond against the cost of protecting the area, with a fence or some other measure, Walker said.

Hobart City Attorney Anthony DeBonis said city ordinances did not require the property owner to put up a fence around the pit.

Pointing to an ongoing investigation by the Hobart police, DeBonis also said the property owner had no citations on record.

Whether his firm takes the case or not, the timing of any legal steps is critical, Allen said, as memories of the tragedy fade and evidence may get lost.

“I’m guaranteeing that the insurance carrier for the responsible party has already retained lawyers and experts and concluded their investigation,” he said.



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