RALEIGH, N.C. (WNCN) — The family of 2-year-old Thomas Austin, who died in a North East Raleigh swimming pool last week, is filing a civil lawsuit against the community’s homeowner association. This lawsuit comes after Thomas’ body was found in the community pool after his mother filed a missing child report.

Attorney Rod Dixon, who is a personal injury lawyer in the Atlanta area, is representing the Austin family and said the property, McKinley Mill HOA Board Grandchester Meadows, is at risk because of a faulty fence that wasn’t repaired.

“The plan is to pursue this lawsuit in the court system if we cannot come to a proper just resolution for this family in a timely fashion,” Dixon said.

Dixon described Thomas as a joyful and loving child by all of his friends. He said the family was too emotional to speak about the incident.

“They lost their son. They lost their two-year-old son. When we are talking about children we have an expectation that they will be here and will grow and thrive,” Dixon said. “We don’t expect that to be snatched away with literally no warning.”

Furthermore, Dixon said he feels the bases of the lawsuit he helped prepare puts the property at fault in his opinion.

“When we look at the evidence that is available so far, we know that the child got into the pool because the pool gate surrounding it, the fence, surrounding it, (was) not properly maintained,” he said. “At a minimum that lack of maintenance led to at least one of the slack’s vertical members of the fence not being there.”

He also said, based on the evidence, it shows someone possibly vandalized the fence, which he is planning to address.

Dixon said he is planning to share that the law requires that slacks or pickets in a fence surrounding a pool be no more than four inches apart. The law prevents someone’s head from entering a gate.

2-year-old Thomas Austin (Rod Dixon).

CBS 17 also reached out to the property managers of the community for a statement.

“The HOA Board and Management Company are obviously aware of a tragic incident that took place at the Association swimming pool. We are cooperating with the investigation and have sympathy for all those involved. As the investigation is ongoing, we cannot comment further at this time other than to assure our residents that resident safety is always a priority and that efforts are constantly made to achieve these goals in accordance with state law and accepted industry standards. 

Sincerely,

McKinley Mill HOA Board 

Grandchester Meadows”

CBS 17 did speak with a neighbor who said he remembers seeing a hole in the gate sometime back, big enough for him to fit through. Per that neighbor, who asked to remain anonymous, the entrance where Thomas entered has since been repaired.

Finally, per Dixon, the funeral service for Thomas will be held at 10 a.m. Saturday at Mirrors Venue in Raleigh at the Juniors Women Club. It is open for public visitation until 1 p.m. The actual funeral ceremony will begin at 1:30 and last until 3 p.m.