YMCA settles drowning case for $8 million


Following are two articles that vividly illustrate the financial impact of aquatic tragedy. The first article below is a follow-up to Family sues YMCA in girl's drowning and is important because of the financial precedent set by the final settlement, which included only normal compensatory damages and no punitive damages. The second article emphasizes the importance of maintaining compliance with each and every required protocol and demonstrates that the ordeal may not be over until long after it appears to be.

“YMCA settles drowning case for $8 million”

MAJOR SOUTHWESTERN CITY: 9/20/2003 - A [neighboring city] YMCA chapter agreed to pay $8 million to the parents of 7-year-old girl who drowned in a pool two years ago. Lawyers for the YMCA's insurance company and the parents reached an agreement late Friday, days before both parties where scheduled to present arguments before [state]'s Court of Appeals in [neighboring city], said [name], the parents' attorney. With the agreement, the YMCA promised to drop its appeal.

“Everyone wanted to get the case behind, let the family have peace and get the case resolved,” said YMCA attorney [name].

The case stems from the death of [victim], who was unconscious when she was pulled from a pool at the YMCA's [name] Branch in Oct. 25, 2001. She died the next day after being taken off life support. Her parents alleged a YMCA lifeguard didn't realize the child had been under water for about 20 minutes. They also claimed the organization violated its own standards by failing to identify each child's swimming ability.

Nearly a year after the death of their daughter, [victim’s parents] were awarded an $8 million judgment by a [county] Superior Court jury. The eight-member jury awarded compensatory damages but declined to impose punitive damages. The YMCA said the jury award was unusually high and sought a new trial.

Before the trial, the YMCA accepted responsibility for the death and offered to settle out of court. The parents declined the $1 million offer.

Since then, the YMCA says it has implemented several safety standards, including testing kids' swimming skills and having them wear armbands to indicate their skill level. “If any good could come out of such a tragedy, then little [victim]’s death I think will have saved a number lives over the years,” [plaintiff attorney] said.

What must be remembered:

  • Every day that our pools are open there is the potential that a young life may end. There is also the potential to save many lives by teaching children how to swim. The potential for good certainly outweighs the potential for harm, but we must be extremely diligent to protect those we serve.
  • A settlement of this size could be crippling, possibly fatal for many organizations, yet the real impact would not be the dollars spent, but the lack of benefit to the entire community that the closure of a JCC would bring.
  • One of the cited standards violated was not statutory… it was the organization’s internal standard, but the failure to meet it almost certainly affected the final outcome.
  • The jury awarded only normal compensatory damages in reaching the settlement figure…given the nature of the incident and the evidence presented, punitive damages were a possibility, which would have driven the settlement even higher.

“Appeals Court revives lawsuit against YMCA in death”

MIDWEST CITY: 09/23/2003 - The [state] Court of Appeals ordered a new trial Tuesday in a lawsuit involving a man who died after swimming at the YMCA in [town]. A [county] jury ruled in 2001 that the [name] YMCA was not responsible for the death of 59-year-old [deceased victim] of [small town].

[Deceased] was found at the bottom of the YMCA's pool Sept. 4, 1998, and died nine days later. The family's attorney, [name] of [major city], argued that [deceased] died from complications as a result of drowning. He said the drowning was a result of negligence on behalf of the YMCA.

Defense attorney [name] of [major city] countered that [deceased] died of sudden cardiac arrest, brought on by a prior heart condition.

The family sought $29,250 reimbursement for medical costs and funeral expenses and almost $570,000 for pain and other damages.

The appeals court said that the trial judge erred by not allowing certain evidence to be heard by the jury. That included state regulations requiring pools to have a shield or mask used to perform CPR safely on victims who are aspirating blood.

What we don’t know:

  • anything about the deceased, e.g.
    • his general physical condition
    • the regularity of his exercise regime
    • any existing medical problems he may have experienced
  • anything about the circumstances of the episode and the ensuing rescue, e.g.
    • the number, training, placement, and attentiveness of the lifeguards at the facility
    • whether he simply sank or visibly struggled on the surface of the water
    • if he struggled, how quickly his distress was recognized by the guards
    • if he just sank, how long he was under water before his situation was noticed by the guards
    • how quickly the lifeguard(s) got to him
    • how effective the lifeguard(s) was(were) at extricating him from the water
    • whether all the mandated safety equipment was available and if it was properly utilized
    • whether the lifeguard(s) correctly administered all the necessary skills
    • the extent of assistance he required… simple extrication, resuscitation (the application of rescue breathing), or revival (the application of CPR because he actually died at the scene and needed to be brought back to life)
    • whether the assistance provided was solely by the lifeguards or if (and when) medical professionals became involved
    • the actual cause of death… the article only gives statements by the opposing attorneys, neither of whom can be considered impartial and neither of whom presumably have medical degrees

What we do know:

  • the original event occurred over 5 years ago
    • the victim eventually died
    • evidently some evidence was repressed by the original judge
    • if the organization did not document the incident with an exhaustive investigation when it occurred they will have difficulty disproving any claimant allegations

What must be remembered:

  • standards are requirements, not options… they are minimums, not goals
  • standards do not have to be statutory to be binding… we can be held liable for not following our own internal standards, or for not following generally applicable standards of care, statutory or not
  • standards and protocols that are seemingly for the protection of the rescuer can be viewed from another angle… a rescue mask or shield is required basically to protect the rescuer, but its absence may cause the rescuer to hesitate, which may endanger the victim, thus creating liability
  • immediate and thorough investigation of an incident is crucial, even if there appears to be no liability; once the event slips into history the information becomes difficult or impossible to recapture and there is virtually no way of adequately answering allegations

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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