Aquatic Tragedy Update

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“Family sues YMCA in girl's drowning”

WESTERN CITY – 11/16/2001: The family of a 7-year-old girl who drowned at a YMCA pool in October filed a lawsuit against the organization on Thursday, alleging negligence and carelessness caused the death of [victim]. The lawsuit, filed for [victim]'s parents, [father] and [mother], says the girl was under water at least eight minutes directly in front of the lifeguard's elevated chair at the JCC on [street address].

[Plaintiff attorney 1], who with [plaintiff attorney 2] represents the family, said lab tests show [victim] may have been under water as long as 20 minutes on Oct. 26. She was unconscious when she was pulled from the pool and never woke. She was on life support equipment at [medical center] for eight hours and died 10 hours after her family decided to remove the equipment, the lawsuit says.

[YMCA spokeswoman] and [defense attorney], an attorney for the office representing the YMCA, declined comment. [YMCA Spokeswoman] said the 18-year-old lifeguard on duty when the drowning occurred was put on leave after the incident. [YMCA Spokeswoman] said she would remain on leave until an investigation of the drowning is completed.

[Victim] was one of nine children at the pool, [defense attorney] said. The kids were part of a YMCA after-school program that normally took place at their school, [name] Elementary, but was at the YMCA that day because of staffing shortages.

[Victim] could not swim and her parents did not know she would be in a pool that is 6 feet deep, [attorney 1] said. No flotation devices were provided for [victim].

The lawsuit asks the YMCA to reimburse funeral and medical expenses as well as compensate the family for the loss. It also asks that the YMCA be assessed a civil fine.”

“YMCA appealing $8M judgment in 7-year-old's drowning”

WESTERN CITY – 11/13/2002: What is the value of a child's life? That was the subject of an emotional hearing yesterday before Superior Court Judge [name] in the accidental drowning of a 7-year-old girl in a [city] YMCA pool on Oct. 26, 2001.

Attorneys for the YMCA are seeking a new trial or a reduction of the verdict for compensatory damages awarded at trial two months ago. The jury gave [parents’ names], the parents of [victim], $8 million in compensatory damages. No punitive damages were awarded.

After more than an hour of arguments yesterday, [superior court judge] took the matter under advisement.

[Name], an attorney representing the YMCA, said $8 million is excessive. She argued that the verdict should be comparable to awards in other recent cases involving the deaths of minor children. She said $8 million was offered because the jury was “tainted” during the punitive portion of the trial.

[YMCA’s attorney] cited several [state] court cases involving the deaths of minors in which settlements reached a quarter or less of the amount of the [victim] verdict. She said the parents, who attended yesterday's hearing, were of good character and were loving parents deeply affected by the death. But there is no evidence that their grief required counseling, she said. Nor did the couple show evidence of mental health problems or marital problems resulting from their child's death. And there was no evidence of lost wages.

Attorney [name], who, with attorney [name], represents the [victims’ parents], placed a poster-sized photo of the girl on an easel in the courtroom. He defended the jury's verdict, indicating the members, whose average age was 56, knew exactly what they were doing. “Old people know plenty about grief,” [plaintiff attorney] said. And there was [sic] plenty of aggravated circumstances, especially during the 10 hours between the time the child was disconnected from life support and the time she died.

“That is the window into hell,” [plaintiff attorney] said. “If (jury members) were tainted, why didn't they give us the punitive damages we so much wanted?” And he chided the defense counsel for characterizing [victim] as “a” child. If [victim] could come back, she would say “shame on you for calling her 'a' child.”

“Do not compare. Each child is unique,” he said, urging the court to “respect” what (jurors) have done. “This is not a discount court,” [plaintiff attorney] added. “This young lady is personally dead. She's not coming back.”

“Judge denies new trial request in child drowning case”

WESTERN CITY – 11/23/2002: The parents of a 7-year-old girl who drowned at a YMCA pool will receive the $8 million that a jury awarded them. A judge on Friday denied the YMCA's request for a new trial. YMCA attorneys claimed the September jury award was excessive.

[Victim] was unconscious when she was pulled from the YMCA pool Oct. 25, 2001. She died the next day after she was taken off life support.

The child's parents claimed the lifeguard didn't see [victim] slip underwater, where she remained for 20 minutes, according to testimony.

[Name] County Superior Court judge [name] said the jury's verdict was reasonable.

What we know: (some of this information was gleaned from published newspaper articles not included above)

  • this occurred during a special event… the activity was normally held at the school pool but was being held at the YMCA because of school staffing shortages
  • the victim could not swim and was not swim tested
  • there was no safety line in place dividing the deep from the shallow portion of the pool
  • the victim was discovered by a fellow swimmer at the foot of the elevated lifeguard chair
  • at the time the victim was discovered, the lifeguard was at the shower with another swimmer
  • autopsy results showed the victim was under water at least 8 and up to 20 minutes
  • the press records the organization as having “no comment” at the time of the incident
  • citizens countered the organization’s original claim that this was the first such tragedy with examples of a drowning and a near drowning; n.b., such comments never explain, justify, or correct anything
  • the organization contested the settlement amount, not their negligence; the latter they wholly admitted;

What we don’t know:

  • whether the organization expressed concern, condolence, or caring at the time of the incident; the only recorded sympathetic comments came at the time of the judgment, nearly 13 months later

What must be remembered:

  • Children should always be swim-tested so the guards can know their strengths and limitations; they should be marked accordingly so guards other than those who tested them can also know. Non-swimmers must then be protected by being restricted to shallow water and protected by either being within arms reach of an adult caregiver or in a life jacket.
  • Safety lines should be in place except when the pool is being used for end-to-end activity; the default condition should be safety line in place, especially if there are non-swimmers in the pool.
  • Guards should never leave their guarding posts even to show kindness, provide care, or give assistance to someone away from the water; such is not heartless behavior… it is the proper prioritizing of roles. Others can provide the necessary assistance, or, if not, the pool should be cleared so that the assistance can be safely provided.
  • Guards should scan constantly the entire area under their supervision, covering the area on the surface, under the surface, and on the pool bottom every 10 seconds. Perceptive scanning in this incident missed by a factor of 48 to 120, depending on the actual length of time under water.
  • It is important to express care and concern for the bereaved; it should not be an admission of guilt or an assumption of responsibility, just a display of kindness and humanity, the spirit of the JCC.
  • It is important not to offer self-serving rhetoric (such as “it has never happened before” or “the guard did everything possible”); that cold, self-centered and uncaring demeanor will alienate, not defend.
  • The fact that we want to do good and that we desperately want to cause no harm is not protection against a tragic event; neither is it a viable defense for negligent behavior.
  • This judgment exceeded the level of insurance protection carried by most JCCs. Inadequate insurance protection can result in dire financial consequences for a JCC, possibly even viability. Of course, that will happen only after an inadequate level of risk management has already resulted in other dire consequences for an individual, his or her family, and for the community as a whole.
  • Although significant, this judgment amount withstood appeal; the judge called the verdict amount reasonable showing that the life of an individual is not a commodity to be easily valued.
  • The jury awarded no punitive damages even though they were requested in the suit. Negligence was clear and unquestionable, as shown by the elevated judgment, but the actions of the organization were considered neither intentional nor evil in nature and thus not subject to punitive damages.
  • While not a substitute for good guarding, Poseidon Technology provides an excellent fail-safe that may have prevented this tragedy. Though not inexpensive it is cheap compared to the loss of a life.

Please call us at 800-463-8546 to discuss this or any other risk management safety tip, or visit our web site at www.redwoodsgroup.com to learn more about JCC risk management issues.

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