It’s 15 minutes into practice for this nationally certified swim team when the alarm sounds, indicating that a Florida afternoon thunderstorm is now looming overhead requiring an “All out of the water” call from the lifeguard. This is a quality program, run by an experienced coach. The fact that they have a separate lifeguard instead of just an additional assistant coach indicates that the pool managers understand safety standards.
But the thunderstorm moves in faster than expected and now it’s vital to get everyone under cover as quickly as possible. The coaches stop the athletes, even mid-lap, and have everyone immediately exit the pool. As kids run toward the locker rooms, the coaches keep count. They give the pool a once-over, and begin to check swimmers off as their parents arrive to pick them up. Someone yells for Kristin, a “bronze” level swimmer in the 8-10 age group, but she’s not there. The head coach asks one of the girls to check the women’s locker room but no luck. Uneasiness begins creeping into everyone’s thoughts. It’s been more than ten minutes since they closed the pool and Kristin is nowhere to be found. The coach asks several parents to look in the parking lot and sends others to check around the campus. Calls to Kristin’s parents confirm that she is not with either of them, and both rush to the school.
Fifteen minutes after the last child leaves the pool deck and the gates are locked, one of the swimmers comments that when she last saw Kristin, she was on the top rung of the corner ladder getting out of the pool from the deep end. The head coach decides to walk around the deck and that’s when they find her floating at the base of the far wall, spread-eagled, a foot from the bottom of the pool.
When Kristin was found it had been at least twenty minutes since the first swimmers had left the pool. The all-time record for recovery is approximately 40 minutes. In that amazing case, a 16-year-old boy fell through the ice into 35-degree water. He was rescued four miles downstream, and unbelievably, was resuscitated with virtually no brain damage. The victim benefitted from two factors: First, the near-freezing water caused his metabolism to slow down remarkably and with it the probability of brain damage. Second, that victim was fortunate enough to be rescued within a few miles of a teaching hospital that had experience with drowning victims.
Kristin’s circumstances were tragically different. The pool temperature was far too warm for any preservative effects and by the time she was discovered, the chance for a successful recovery had long since passed. Despite compliance with virtually all relevant regulations plus appropriate procedures by the coach, Kristin drowned.
Her death completely decimated her family and destroyed the career of the coach. It also produced a daunting piece of litigation for anyone aligned to the coach and the club.
AndersonGlenn was brought in to represent the national governing body through the organization’s captive carrier. The scenario was more complex than a simple case of overlooking the possibility of a swimmer in the pool. The coaches had done an inspection, however brief, before they shut the gate. How could they have missed a 4-foot-5-inch swimmer drifting a foot off the bottom of a clear and vacated pool? How did Kristin just disappear? Moreover, how the heck did a competent swimmer who had hauled herself completely out of the water end up drowning?
Devastated by the accident, Kristin’s parents brought suit against the team, the school, the national organization, the coach and even the swim team’s parent organization. When I was assigned the case, we already had experienced claims people evaluating the facts. All of us were confused as to how this accident could have happened. It was only when we probed into the underlying facts that we were able to discern not only how it occurred, but why the liability of our client was not necessarily an “open your checkbook” claim.
Determining the responsibility of each person involved in an accident is often the key to a case. With that in mind, let us review the basic management of the club. Our effort is to not only to “solve the case” but also decrease the likelihood of this accident happening in the future.
So how to go about evaluating a claim so heart-rending that during the mediation even experienced claims managers and hardened insurance defense lawyers teared up?
First, it’s clear that the coach who last saw Kristin should have waited to ensure that she cleared the pool deck, rather than the pool. But his failure to do so doesn’t necessarily violate code, or even common sense. He had all of the swimmers to get under cover. An immediate head count should have been conducted, but even without one, the coaches identified Kristin as missing almost right away. Once it was noticed that a swimmer was missing, the first place the coach should have checked was the pool. But everything he was told from the assistant coaches and Kristin’s teammates supported the fact that she wasn’t there. When they rechecked the pool, it was still difficult to see her on the bottom.
The coaches were victims of a phenomena exemplified by the “disappearing swimmer” experiments conducted by drowning expert Dr. Tom Griffiths in the ’90s. Under certain conditions, wind across the water causes a ripple effect that creates dark patches, which in turn cause a refraction of light that can completely obscure a body on the bottom of a pool, even in 5 feet of clear water. In addition, depending on the viewpoint of the observer, bodies located at the juncture of a wall and bottom are less likely to be spotted.
The combination of visibility issues from the brisk wind over the water, the coaches’ preoccupation in getting all of the swimmers under cover, and the possibility that the observers were in a position where they could not see along the intersection of the wall and bottom, meant that the coaches could have been careful and still miss Kristin.
Compounding the visual problems, Kristin experienced a so-called “silent” drowning, i.e., one in which the swimmer slips under water without much disturbance at the surface. Though Kristin was on the top rung getting out of the pool, she wasn’t completely away from the zone of danger.
This leads into the second universal requirement, which is to ensure the staff has proper training, and up-to-date certifications. I cannot tell you the number of times where the on-duty guard’s certification had expired just a few weeks before the accident. While this rarely has anything to do with the guard’s or coach’s performance, a lack of up-to-date certification creates liability. Tracking this information on a spreadsheet is key. In addition to the guards, all coaches on deck must be certified at least in CPR, though advanced certifications in American Red Cross Life Saving and AED operation also can be very helpful, not only in defending the coach and team but in preventing accidents.
Another “gotcha” we see in drowning and near-drowning accidents derives from the American Heart Association’s repeated changes in CPR technique. Up to eight or so years ago the standard was “ABC” and a 15-to-2 compression-to-rescue-breath ratio. “Airway, Breathing and Circulation” was the order of evaluation. About five years ago, the procedure changed to 30 compressions followed by two rescue breaths. In 2008, the “ABC” was reversed to “CBA” with the “C” becoming “compressions” rather than “circulation." Two years ago it changed again to 100 or more compressions per minute with rescue breaths indicated only in certain cases.
From the perspective of defense counsel, if the facility applies an “out of date” method, it is a “gotcha” that makes defending the case more difficult.
Training in lifeguarding techniques and first aid is necessary, but it’s equally important to ensure that there is sufficient training in how to use the equipment available at the pool. One of the most debated items is an automatic external defibrillator. While some regulations recommend an AED on deck, it is not generally a requirement. Each facility should evaluate the cost-effectiveness of having an AED and training staff on it. Otherwise, what may have been purchased to improve safety and reduce liability can end up doing neither.
In the vast majority of cases, these technical errors have nothing to do with the cause of the accident or the attempts to save the victim. But creative speculation by opposing attorneys can turn even the most irrelevant issues into a means of keeping the case in court.
There is a flip side to all of this though. The more standards you choose to comply with, the more potential “gotchas” are waiting. Technically, you only have to follow state, county or local codes unless your facility is part of a national organization such as USA Swimming. If you chose to adopt the American Red Cross or other organization’s standards, be ready to stay compliant.
Finally, every potential swimmer that enters the facility should have an inquiry as to their level of confidence in the water. Particularly with children, one cannot trust that they will be honest about their swimming ability.
This brings up the issue of releases of liability. A discussion of releases and their enforceability is beyond the scope of this article, but suffice it to say that the more general the language, the less likely it is to be enforceable. The issue of applications is more germane here.
As part of a national organization, Kristin’s club team required an application. One section of the form asked for a list of any conditions that may have a bearing on the athlete’s ability. The form also requested a disclosure of medications the participant is taking. In the case of Kristin’s form, signed by her mother, both sections were blank. In comparing the application to Kristin’s medical records, we discovered that in the three months prior to the accident, she had been experiencing inexplicable fainting spells, with the last one occurring two weeks before her death. On that date, while sitting at the breakfast table, Kristin had suddenly slumped over, out cold. Her parents had taken her to the doctor and she was scheduled to undergo neurological testing the day after the accident.
Kristin loved swimming. Her parents could not bring themselves to keep her away from her friends and teammates and believed, with all the hope parents have, that this was a temporary condition that could be treated. It is the cruelest irony that they were probably right except for a Florida thunderstorm and an optical illusion.
Aquatic center professionals may find this story disconcerting. After all, how can you do your best and comply with all the rules and still end up in court? But that’s not the question. The question is whether your safeguards make the accident just that, an accident, rather than a catalyst for the blame game. With sophisticated insurance professionals and competent, specialized counsel, you can present yourself as a porcupine; i.e. the last choice to go after in the event of an accident. (See list on page 30.)
When a child dies, any technical violation of a standard will ensure that there will be an inquiry and demand for compensation. Compliance with regulations and standards greatly decreases the chance of an accident.
Sometimes when asked about how a particular club or facility didn’t do this or that, I note that the facility isn’t GE or Microsoft. It’s a recreational facility, or a swim team, or a scuba lesson. We do our best but it’s hard to meet the “padded planet” school of liability. We do our best and the comfort we have is that 99 percent of the time we’ve kept everyone safe and the claims minor.