Risky Business

DCF 1.0

As an expert witness called to testify by attorneys in numerous drowning or near-drowning cases, I’ve observed a victim’s family members attempt to ease the pain of losing (or almost losing) a loved one by finding someone to blame. In certain cases, a lifeguard or pool manager failed to perform his or her duties, or a facility didn’t provide a reasonable standard of care, and the finger-pointing is justified. At other times, however, the tragedy is exactly that: a tragedy. And tragedies occur in and around water quickly—with little or no warning. 

But even an accidental drowning doesn’t make it any easier to see the pain in a parent’s eyes. The responsibility of an expert witness includes educating attorneys for both the plaintiff and the defense regarding a specific case’s merit. In the past year alone, I have turned down more than 50 cases—informing attorneys that, as heartbreaking as the incident is, “Your side is not the right side.” I simply do not believe many of the cases brought to my attention should even be cases. 

I reach that conclusion by asking attorneys a definitive list of questions, beginning with the basic “who,” “what,” “when,” and “where.” Then, before I accept or refuse the case, I start digging for answers to more detailed questions that a defense attorney—or more likely a plaintiff’s attorney—will eventually ask aquatic administrators and staff members when a pool tragedy occurs. Here are five of those questions: 

1. How many lifeguards were on duty? Despite reports of lifeguard shortages at all types of aquatic facilities, it is the pool manager’s responsibility to hire, train, and retain the proper number of lifeguards required by a particular state and based on the number of swimmers and size of the pool. Making sure all certification paperwork is up to date is also a priority. A pool manager at a Wisconsin high school came under fire in March 2013 (and eventually resigned) after an internal investigation into a near-drowning during a physical-education class revealed that two of the three guards present did not have proper credentials. If there is a need for more lifeguards—especially during daytime shifts in the fall, winter, and spring, when young guards aren’t as readily available—consider looking to retired lifeguards who hold updated certifications and training credentials. 

2. If there were no lifeguards present, were signs warning “No Lifeguard on Duty” easily visible? These signs should be posted throughout the pool area and at all entrances. The information also can be reinforced in online newsletters and other forms of regular communication to serve as constant reminders, and front-desk personnel should inform swimmers checking in that no lifeguards are on duty. These extra layers of protection will come in handy should an incident occur.  

3. Is there on-deck access to a working emergency phone? Cell phones and lifeguards do not mix; guards should be prohibited from having their phones while working. Access to an on-site emergency phone, on the other hand, is absolutely crucial. An ideal location is on one of the walls of the pool space, preferably near

DCF 1.0

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