Family of four-year-old who drowned in retention pond considering legal action

GAINESVILLE, Fla. (WCJB) - Kash Waylan Hodges drowned in a retention pond behind Oakwood Commons Shopping Plaza earlier this month.

Kash and his dad were taking a nap at his mom’s work while she was away from her job.

While she was gone and his dad was sleeping, Kash wandered off and into the pond.

When his mother returned, she found Kash drowning and gave him CPR before he was taken to the hospital where he died.

Now the family is considering legal action against the property managers, who they believe to be responsible.

“You’ve got four retention ponds right here,” said a friend of the family, Celeste Gomes, “around Wal-Mart and this whole area, this is the only one without a fence around it.”

TV20 spoke to attorney Steven A. Bagen about whether the property management can be held accountable for his death due to the lack of a fence.

“We’re in a part of the county that really does not require--at least on older properties like Oakwood Commons--does not require a retention pond to have a fence,” said Bagen. “So that’s an issue.”

However, Bagen says the management company could still be held accountable because of the circumstances surrounding the pond.

“If the shopping center should have taken additional precautions over and above the requirements of the code,” said Bagen, “because there is a playground area right nearby...if you know that as a shopping center you’ve got to put precautions out there, including an enclosure.”

Bagen said he does not believe the family could be found negligent in this case.

However, he says a bill currently being discussed in the Florida Senate could prevent the family from receiving damages for his death.

“They would be unable to recover--in my opinion--against the shopping center if they’re found 51 percent at fault,” said Bagen. “If you have a jury that could conceivably put more than 50 percent fault on the parents, or the little boy, they would be completely barred from a recovery.”

Under the current law, the family would receive damages proportionate to the percentage a jury finds them to be at fault.

So far no charges have been filed.

RELATED: Family of Kash Waylan Hodges holds vigil for drowned four-year-old

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