THE PLAIN DEALER LAKE/GEAUGA & METRO
WEDNESDAY, DECEMBER 23, 1992

Mom gets $240,000 in drowning

By STEPHEN KOFF
PLAIN DEALER REPORTER

The mother of a 3 1/2-year-old boy who drowned in a condominium complex pond was awarded $240,000 from a jury that last night found the Peppertree Condominium Association negligent for not erecting a fence.

Diane Spiker's award was part of a $467,250 total judgment that included $171,250 for the toddler's older brother, Keith, now 10. And the estate of the deceased boy, Jeremy Spiker, will get $56,000 for the pain and suffering Jeremy felt before he lost consciousness underwater June 11, 1988. That money will be disbursed by the estate's administrator.

"I'm pleased," said Diane Spiker, 30, a former Peppertree resident who now lives in Clearwater, Fla. "I want a fence. I never want another baby to die in that water again."

Keith, an articulate, blond boy, entered the courtroom just after the verdict was read. He said he was happy, "because we waited a long time for this, and we had to come all the way up here, and my mom had to miss work, and I had to miss school. I'm just glad it's over."

In awarding the verdict, the jury initially decided that Spiker's damages for pain, grief and chronic depression were worth $400,000. But the jury found the mother was somewhat negligent because she and her then-husband, Alan Spiker, were not watching their children when Jeremy went to the pond. Diane Spiker testified Monday that she had gone upstairs to change clothes and was gone only two minutes. She assumed her husband was watching the children. Jurors found her 40% negligent, so the $400,000 will be reduced by 40% , to $240,000.

Alan Spiker, who divorced Diane and married her best friend after the drowning, was not a party to the lawsuit and got no damages.

Not all jurors wanted to award money to Diane Spiker. One of the eight jurors, Mona Elia, voted against giving money to the mother. She said last night that she felt the lawsuit did not belong in court. "It was an accident," she said of Jeremy's drowning.

But jury foreman Robert Boyle said most jurors concluded that the evidence warranted a monetary award. "The one thing that stuck in everybody's mind is that the defense didn't show anybody that said she didn't (normally) watch the kids, except by a seemingly hostile witness - the mother-in-law - and the testimony of her ex-husband," Boyle said.

Diane Spiker's former mother-in-law, Frances Spiker, testified Monday that Diane several times left her boys unsupervised. Other witnesses last week gave accounts of Diane's supervision that contrasted starkly with the mother-in-law's version.

The jury also apparently discounted Frances Spiker's testimony that Keith confided in her after the drowning and said he and Jeremy had been scuffling near the water. Although Diane's lawyers said Jeremy apparently fell when he got too near the water or the steep bank, lawyers for the condominium association said Keith might have been responsible.

Keith "told his grandmother that he hit his brother, and that's what make Jeremy go in the water," defense lawyer John Cronquist said yesterday in his closing argument.

"The condominium association was not responsible when Jeremy was hit by Keith and thrown into the water," Cronquist said.

But plaintiff's lawyer Alec Berezin said in his closing argument that the drowning was bound to happen, and he noted a letter from the condominium association's insurer advising that a fence be built. He association, which controls and maintains the complex's common areas, decided a fence was unneeded.

The drowning of Jeremy Spiker on June 11, 1988, was "predictable," Berezin said. "It was an accident, an event, a tragedy just waiting to happen."