1. Running head: INTERNAL MEMORANDUM OF LAW
Mary and Shayla Smith
Debbie Dixon
PA229
Professor Navarro
March 9, 2015

2. To: Supervising Attorney
Fr: Debbie Dixon – Paralegal
Date: March 8, 2015
Re: Our New Clients Mary and Shayla Smith – Swimming Incident
FACTS:
Shayla Smith a 9 year old child went camping at O & D Family Campgrounds (owned by Owen
and Dolly Jones), with her friend Tamara and Tamara’s parents, Bob and Susan Tuttle. On the
morning in question, the 2 girls went to the pool unsupervised at approximately 9:30 a.m. The
pool opened at 10 a.m. They went through the open gate. There were no signs stating that diving
was not permitted and no signs to indicate how old a person had to be to enter the pool area
without supervision. Shayla dove into the pool, landing on and severely breaking her arm in
three places.
ISSUE:
1. Under Nevada Law did the Tuttle’s violate the Negligent Supervision Statute when they did
not supervise Shayla Smith, a minor?
2. Did Owen and Dolly Jones violate the Nevada Negligence Statute by breaching their duty to
keep their invited guests safe from harm?
ANSWER:
ISSUE 1. No the Tuttle’s did not violate the Nevada Law due to the fact that they told the two
girls they could not go to the pool without supervision and the girls ignored the order.

3. ISSUE 2. Yes Owen and Dolly Jones violated the Nevada Negligence Statute by breaching their
duty to Shayla Smith to keep her safe from harm.
APPLICABLE STATUTE:
Nevada Administrative Code, NAC § 444.136 (1-8) addresses barriers and safety. There are
three cases that are similar to our client’s situation they are as follows: Selby v Tolbert, 249 P.2d
498 (1952), in this case a tractor caught fire on the highway and a local garage owner was hired
to remove it. He had it towed to an empty lot, near the street. The trailer was left on a dolly,
braced with beams. An eight year old boy and other children, cross the street while their parents
were attending church and the boy touched a tail light on the trailer, it tipped over and fell on the
boy and fractured his leg. In this case the court applied the “attractive nuisance doctrine” and the
case was won by the plaintiff. Martinez v C.R. Davis Contracting Co., 389 P.2d 597 (1964), a
14 year old boy and his friend wander onto a construction site and come across a hole that had
been excavated by the construction company and filled with water. The two boys got onto what
they thought was a raft and it tipped and the 14 year old fell or jumped into the water and
drowned. The court held that the defendant in this case owed a duty to the decedent to protect
him from harm. The court said the lower court did not err and affirmed the courts decision.
Smith/Smith v Crown-Zellerbach, 638 F.2d 883, in this case, the Appeals Court, reversed and
remanded the District Courts decision to dismiss the case for failure to state a claim. The Court
of Appeals held “that absolving owners from liability when they let others use their premises for
listed recreational purposes did not abolish the doctrine for attractive nuisance.” Restatement of
Torts on negligence.

4. DISCUSSION:
The Nevada “Negligent Supervision Statute” was put in place for cases of children that are
neglected by parents, caregivers, employers, etc. In this case the two girls went to the pool
without the knowledge of the Tuttle’s and in doing so I do not think that Mary and Shayla have a
case against the Tuttle’s and the focus should be put on the Jones’.
According to NAC § 444.136, there must be visual signs with lettering that is 4 inches in height
that state, “No Diving”, “No Lifeguard on Duty” and specify the age limit without supervision.
The signs should be all in caps. According to our witnesses and pictures of the pool area, the
only visible sign was that of the pool hours of operation on a gate that was not closed or locked.
The pool opened at 10 a.m. but the 2 girls were able to access the pool at 9:30 a.m. In regard to
the gate, it must be a self-latching gate. In reviewing the three cited cases it all comes down to an
“attractive nuisance” and a “breach of duty” on the part of the Jones’. In Selby v Tolbert, 249
P.2d 498 (1952), an 8 year old boy is attracted to a trailer that is across the street from a church
his parents are attending and is injured by the trailer falling on his leg. The court used the
“Attractive Nuisance Doctrine” and the Court affirmed the decision of the District Court and
awarded the plaintiff damages. In Martinez v C.R. Davis Contracting Co., 389 P.2d 597 (1964), a
14 year old boy and his friend wander onto a construction site and see a body of water with a
floating devise (which turns out to be cement with wood on top) they think is a raft, they board it
and the “raft” tips and the boy falls off and drowns. The Court said in appeal that the trial court
did not err in their decision and affirms in favor of the plaintiff. As in the first case, this court
relies on the “attractive nuisance doctrine”. For the last cited case, Diana Smith & Franklin
Smith v Crown-Zellerbach, 638 F.2d 883, the court reversed and remanded the case. In this case
a 10 year old boy was burned badly when he attempted to play on what he thought were just hills

5. and it turned out to be hot ashes and chemical debris. He was an invited guest on the property
and had been fishing. The property was used for recreational uses as well as the business
functions. The Restatement of Torts looks at negligence as, behaving with the care that ordinary
people would have under the same circumstances. Most public pools have signs all over
indication what is permissible and what is not, there are high fences and locked gates (unless
they are open for business). In looking at the Restatement of Torts, there was a duty owed to the
guests and possible trespassers to have adequate signs posted with warnings and to also have a
locking gate. The duty was breached by having no warning signs and having an open gate so that
anyone could have access to the pool. By not having signs and a locked gate, the children had
access to the pool and had no way of knowing there should be no diving, therefore the injuries
sustained by Shayla were in fact caused by the breach. Damages from the breach include the pain
and suffering of the child, Shayla, and the monetary damages of the medical bills to the guardian,
Mary Smith.
CONCLUSION:
I do not feel there is a substantial case against the Tuttle’s but more information should be
obtained before dropping that part of the complaint. As for Owen and Dolly Jones, there is
enough information to get Mary and Shayla’s medical bills past and future paid for. In most
instances pools are not part of the attractive nuisance but in this instance with the cited cases,
Nevada Statute, and the Restatement of Torts I think the court will see that the Jones’ were
negligent and have created an “attractive nuisance”.

6. REFERENCES:
Martinez v C.R. Davis Contracting Co., 389 P.2d 597 (1964)
NAC § 444.136 (1-8)
Selby v Tolbert, 249 P.2d 498 (1952)
Smith/Smith v Crown-Zellerbach, 638 F.2d 883