Legal theory - Lifeguard Liability

Parent Cafe
1

<p>My 18 year old daughter is a lifeguard at a local pond. The pond is owned by the town, and she is employed by the town recreation dept.</p>

<p>Two weeks ago, a tragic incident occurred there which eventually ended with the death of an 11 year old boy. My daughter was not on duty when the incident occurred. There were 3 other lifeguards on duty though. A few days after the incident, the lifeguards were told that there would be an investigation, and that the mother was thinking of suing the town. The EMTs and two other town officials have told the LGs that they did exactly what they were supposed to do, and that this tragedy was not their fault. But they were also advised not to speak to reporters.</p>

<p>I have been wondering - who would a lawsuit target? Just the town? Or the lifeguards individually? Thankfully my daughter was not there when this happened, but just in general - should my daughter have some sort of lifeguard liability insurance?</p>

<p>As to the incident itself, the boy had a history of seizures but the lifeguards were not told about it before he went swimming. He apparently had the type of seizure that caused him to go limp or stiff (not flail) and he was playing with friends in waist-chest deep water and the friends didn’t yell or ask for help, so the LGs had no idea anything was wrong until the mother started yelling and ran into the water. The LG’s helped to remove him from the water, started CPR with a nurse who happened to be there, and he responded quickly. There were about 15 people swimming and 3 LGs on duty, who were standing near the water’s edge and watching the swimmers when this happened.</p>

<p>The boy’s obituary was in the paper. It read that he had died on July 29 in the hospital, from “complications of drowning at ****** Pond on July 24.” My daughter asked me who writes obituaries, I told her the parents and the funeral home. There is no mention of any seizure or history of seizures in the obituary. </p>

<p>My heart breaks for this boy and his family. But I also feel that in this case, the lifeguards should have been told about this boy’s history before he ever went into the water. They feel awful, their job is to save lives and they didn’t do that - but it’s not clear if they even could have saved him, since there was apparently no warning of what was happening.</p>

<p>My daughter is at work as I write this. She’s 18, legally an adult, and leaving for college out of state in 3 weeks. Should another tragedy occur, is she liable? Or is the town as her employer liable? (The town requires LGs to be certified and keeps a copy of their certifications, D had to give them her updated certifications a few weeks ago).</p>

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<p>laf: my heart goes out to the family…and your daughter and her friends…</p>

<p>I am not a lawyer, but I imagine that there is a “chain” within the lawsuit…the town and rec dept (inclusive) would prob be the primary target of the lawsuit…but given the pre-existing condition of the boy (assuming that will be determined as cause of death), not sure it will get past a preliminary hearing stage…</p>

<p>as far as your daughter’s (or any other LG liability) it is usually the employer (i.e. camp, community center, etc) that is liable, not the individual employee…the only way, I think, the LG could be considered liable is if he/she were privately hired by a family and/or there were not extenuating medical circumstances…</p>

<p>others may chime in with their take on this…I know that the family is trying to reconcile their grief, but imo I don’t think they have a leg to stand on…</p>

<p>so sad…again, sympathy…</p>

3

<p>I can’t imagine why parents would allow a child to go into the water without a buddy who had a history of seizures. This seems unbelievable to me. </p>

<p>Such a sad case.</p>

4

<p>Ideally the lawsuit won’t go anywhere at all. But if it does, the lifeguards would likely be named in the suit, but the city and the Rec department would be the ones that would likely end up in court. Real simple-- they’re going to go after the money. If the lifeguards did their jobs all within the procedures and protocols of the department, they will be cleared of any wrongdoing. Because of that, I don’t see how they could be found liable. </p>

<p>As an athletic training student, I do carry a personal liability insurance policy (required by my school) and when I get certified I will do so as well. While 95% I’d be covered by my employer, I would want that 5% covered as well. One benefit of having a personal policy is if I were to end up in court, the insurance company would provide me with a lawyer looking out for MY interests and not only the interests of the employer.</p>

<p>Is there lifeguard liability insurance?</p>

5

<p>The lawsuit would target the town, but would probably also name the lifeguards individually. The town would take over the defense of its employees acting within the scope of their responsibilities. The lifeguards should not be personally liable even if negligence were found (unlikely in this instance). Lifeguards are not guarantors of safety; neither are municipalities.</p>

6

<p>I wonder if 18 year old children living at home are covered under the liability portion of your homeowners (or renters) policy. Perhaps another reason to look into getting an umbrella policy.</p>

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<p>My heart goes out to the family and the lifeguards. What a tragedy. If there is a lawsuit, the lifeguards would most likely be named in the suit, but the town will bear the liability. As far as liability insurance, as a swim instructor and coach for many years, I always carried my own liability insurance. I don’t know if it was necessary or not, but better safe than sorry.</p>

8

<p>This is truly a tragedy. In a drowning case like this (I think I saw this incident in the papers or on the internet somewhere recently because it sounds so familiar) so many factors would bear on whether the town is responsible. Generally employers rather than employees are considered legally responsible in negligence cases, however, there can be exceptions to this (gross negligence or illegal actions of employees to name a couple). </p>

<p>As you may be aware, there is nothing to prevent a plaintiff from naming the individual lifeguards in an initial lawsuit, and then it would be up to defense attorneys to try to get them dismissed (or they will need to be defended). This could happen in any job, arguably. However, since there is risk involved in swimming, and accidents of the deadly time do occur, the risk to the employee (of being named as a defendant) is not a vain consideration. </p>

<p>Call your liability carrier (homeowners, and/or umbrella) and see if you can add your child as a covered party and if this type of risk would be covered. A personal umbrella policy for the 18 yo would be another option if this would be a covered risk. </p>

<p>As a general idea, and not specifically in this case, it is extremely difficult to prove that there was a duty to save someone’s life (as opposed to attempt rescue). Otherwise nearly every time a building burned down and someone died, the fire dept would be liable. Ditto ems workers called for a heart attack etc. </p>

<p>A drowning can occur even in water a few inches deep if a person becomes submerged and can not get up. I am sure that the mother of that child feels partly responsible for not watching more closely herself or somehow being able to intervene. Guilt like that can cause a person to try to blame others, but it won’t change their responsibility. (It is not as if this was a child who was known to have a disability and was being personally attended to by the town.)</p>

<p>I additionally am sorry that this happened in your town under the watch of your child’s coworkers. This has to be terribly troubling, and must be causing all to feel terrible.</p>

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<p>I didn’t really want to step in here and say anything, but I’m reading a trend toward people suggesting that insurance is a good idea, and I think I should say something.</p>

<p>If a lawsuit results from this, it is very likely that the lifeguards will be named in the suit. Cities typically idemnify their employees against lawsuits that occur when the employees are working and doing their job. By idemnify, the city or city insurance will hire the attorney to represent you and defend you in court. The city attorney and the employment contract can give information on this. As long as they idemnify the lifeguards, there is nothing to worry about. </p>

<p>We really don’t want to start buying personal insurance policies to cover our actions at work. It’d add a lot of unnecessary expense and it’s our employers responsibility to protect us from lawsuits when we are doing our job. It also would make all of us a larger target because there would be a bigger pot of money to go after.</p>

<p>Having a personal insurance policy might be beneficial if you offered freelance lifeguard services, say for a kids party at their house. In that case, you wouldn’t be working and the city of course wouldn’t offer insurance, and you might get sued if something happens. An 18 year old probably doesn’t have enough assets to be worth going after however.</p>

<p>Doctors malpractice insurance is a good example. It’d adds tremendous cost to our healthcare because the cost is passed directly onto us, but offers very little benefit for the vast majority of patients. The only ones who it helps are the patients who a court decides were harmed by a doctor and their attorneys. In most states, doctors are personally liable for the consequences as it’s written into state laws.</p>

10

<p>We have an umbrella policy, we bought it when my oldest child got his license. I think I will call our insurance agent and find out if it would cover my daughter if she were sued for an incident while she was on duty as a lifeguard. </p>

<p>I have been told that our state has a specific statute protecting municipal employees from being sued for negligence. They can be sued for intentional actions, but that wouldn’t apply here.</p>

<p>Thanks to everyone for pointing out the legal hazards of “private duty” lifeguarding. I had suggested to my daughter that this might be a great way to make some extra money - lifeguard at people’s houses if they were having a kids’ birthday party or something. But now I see that could open her up to liability and lawsuits, so perhaps it’s not worth doing.</p>

<p>There was an article in the paper today memorializing the boy. It made no mention of the lifeguards at all. It did make it clear that there were no warning signs that this kid was in trouble. The fire chief said he thought a “medical symptom” caused the boy’s distress, and the mom said her son had had seizures before, but he hadn’t had one in years. </p>

<p>Its clear from the article that this mom and her family dearly loved their son. It’s just tragic all the way around. I won’t put blame on a mourning parent - I just hope she doesn’t try to sue the town, because then everyone WILL blame the lifeguards.</p>

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<p>Just a head’s up – your daughter may be interviewed or deposed at some time as a witness. There’s no money in a lawsuit against teenage lifeguards for possible lack of diligence in their job, but there is money if the claim can be bootstrapped into a lawsuit against the town for negligent hiring or training practices. So – if there is litigation – it will become quite important for the lawyers and their investigators to explore every nuance of the process of hiring, training, and supervision of lifeguards – and of course your d. has first hand knowledge and experience there.</p>

<p>Unfortunately, she can also be asked at deposition what the other lifeguards (who were there) told her about the incident – and down the line her statements about their statements can be used in court if it in any way contradicts their testimony at trial. </p>

<p>Your daughter will be represented by the lawyers for the town if and when anyone wants to interview her or take her deposition – so there’s nothing for you to worry about – but she would be well advised to keep a low profile and avoid repeating what she’s heard or been told to her friends or other outsiders who ask her about it.</p>

12

<p>calmom, thanks for the advice. I believe she has only talked to us and her boyfriend about it. We already discussed that if she was asked about it by a parent at the beach, her (truthful) response was to be, “I wasn’t on duty that afternoon.”</p>

<p>Until the article appeared in today’s paper I don’t think many people beyond the boy’s family and friends knew about what had happened. She may get asked about it now, because people know she is a LG there. I’ll remind her of your advice and her correct response.</p>

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<p>S is a beach lifeguard for our (large) city. He wears non-uniform clothes to and from work because if he’s in uniform, say pumping gas, and there’s a medical emergency – he’s responsible and accountable as a city employee with medical training.</p>

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<p>Lafalum, what a sad story, I feel terrible for the family and terrible for the lifeguards. When our first child died I can not tell you how many people inquired if we planned to sue any of the doctors. We did not even consider it and quite frankly found the the question in very bad taste. I suspect the family in this case is getting the same pressure. When you lose your child you just want someone to blame, hopefully she will come to the realization that lawsuits only prolong the pain. Unless their is a clear case of negligence or bad practices at the town pool I really can’t see how there is a case.</p>

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<p>If your daughter is sued, the town will agree to indemnify her and defend her. The likelihood of being named as a defendant (if she was on duty)? Very, very low. The likelihood of not being indemnified? Even lower.</p>

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<p>In CA there is a Good Samaritan that I believe says that if you help someone (and have been trained) like with CPR then they can’t sue you.</p>

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<p>Anothercrazymom, I’m so sorry for your loss. I can’t imagine anything worse than the loss of a child.</p>

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<p>

That’s only if the Good Samaritan has no duty to assist the individual in distress. That was to allow, for example, doctors who passed an accident to stop and help without fear of malpractice suits.</p>

<p>In the case of lifeguards, there is a duty to assist, and so regular negligence law would apply, not the Good Sam protections.</p>