With summer in full swing, many families and young children will gather around the pool. Usually, this is the stuff of memories. But tragically, absent the proper supervision, it can end in a nightmare.
The fact is, there are an average of 62 unintentional drowning deaths of children under 14 annually. In fact, drowning is the second-leading cause of injury-related death in Alabama (and the U.S.) after motor vehicle accidents.
Forty percent of these incidents happen in pools and 37 percent happen in open bodies of water. Nearly one-fifth happen in or around the home. Much of the time, adults either believe someone else is supervising the child or are nearby but engaged in distracting behavior, like reading or talking.
But when, if ever, is someone liable for these incidents? The answer depends heavily on the underlying circumstances. For example, some pool owners can be held liable if gates or fences were not properly secured. Pools are considered “attractive nuisances” to children, which means property owners must protect against unsupervised entry. They can be held responsible even if a child trespassed to gain access.
Caregivers sometimes may be held civilly liable too, especially if they were associated with a day care or camp organization.
In the recent case of Beals v. Michigan, involves a teen with disabilities who drowned in a public pool. Family alleged a distracted lifeguard failed to respond as he should have to calls for help by another who found the boy in the deep end of the pool.
At issue before the Michigan Supreme Court was whether the government employee (and thus the government) was entitled to governmental immunity under state law (as is available in most other states, including Alabama, to varying degrees). However, the law allows for exception when the employee’s act is both grossly negligent and also the proximate cause of the injury.
The lifeguard was the only one on duty, watching approximately 24 disabled students. The lifeguard reportedly suffers from attention deficit disorder. There is no evidence the lifeguard or anyone witnessed the victim in distress. He was likely under the water eight minutes when another student, wearing goggles, noticed his body under the water. That student yelled for help, and finally pulled the victim up out of the water himself when the lifeguard failed to respond. Despite attempts at CPR, the teen died. The lifeguard was allegedly talking to girls and throwing a football when the incident happened.
Trial court denied summary judgment to defense, ruling both criteria were met. An appellate court, in a split decision, affirmed.The state supreme court, also in a split decision, reversed.
Although the court found the lifeguard’s actions to be grossly negligent, the court disagreed that this was the proximate cause of the teen’s death because it was not the “most immediate, efficient and direct cause” of the death. There was no indication the lifeguard caused the decedent to enter the pool, and thus, he was not the direct cause of the teen’s death.
No parent should ever have to endure such a loss. Our compassionate, experienced legal team is here to assist families enduring such tragedy by answering their legal questions thoroughly and honestly.
Call Allred & Allred P.C. at 334.396.9200 to speak with a Montgomery personal injury lawyer.
Beals v. Michigan, June 18, 2015, Michigan Supreme Court
More Blog Entries:
Report: Children Injured, Dying Due to Improper Car Seat Use, June 3, 2015, Montgomery Child Injury Lawyer Blog