Whose fault...the lifeguard or the manager/management?

These cases are from the LIFESAVING RESOURCES website at www.lifesaving.com, reprinted with permission.

Read these two case studies: (and see questions to answer below).

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"Key Bank v. Delaware North Park Services

Description of the Incident

On June 8, 2001, 5-year-old Suzana Dukic was a guest at the Deer Creek State Park, along with her Foster mother and family. The Deer Creek State Park was the location for a weekend gathering and education program for foster parents and families and was sponsored by Athens County Children's Services.

The Deer Creek State Park operates an indoor and outdoor swimming pool. Ohio Administrative Code mandates that both swimming pools be supervised by trained and certified Lifeguards. However, at approximately 17:00 hours, the Deer Creek State Park Lifeguard for the outdoor pool left her post and searched for a supervisor to relieve her. Finding none, she exited the facility leaving the entire pool and surrounding area unguarded and went home.

Suzana was last seen sitting with her foster mother on a lounge chair alongside the outdoor main pool. However, Suzana got up and entered the deep end of the main pool, unobserved by her foster mother or any of the other adults and children in and around the adult pool.

At approximately 18:00 hours, a search was initiated for Suzana by bystanders. Suzana was found submerged and on the bottom of the main pool, face down, under ten feet of water. When she was retrieved from the pool, one of her ears was bleeding, she was cyanotic, and in respiratory and cardiac arrest.

Basic life support was initiated by bystanders, including a Registered Nurse. At approximately 18:15 hours, Delaware North Parks personnel were notified at the Deer Creek State Park office of the emergency incident. An Ohio Department of Natural Resources Ranger arrived on the scene at approximately 18:18 hours and assisted with basic life support CPR. Pickaway County Sheriff’s Deputies were dispatched to the scene at 18:28 hrs., and at 18:35 hours Williamsport and Mount Sterling Rescue Squads arrived on the scene and initiated basic and advanced life support protocols. Suzana was then transported to Berger Hospital where she arrived at approximately 19:20 hrs.

Resuscitation efforts were continued by Berger Hospital medical staff and Suzana was subsequently flown by MedFlight to Children's Hospital in Columbus (OH). Suzana remained on life support for forty-two hours before her parents agreed to terminate all life support measures on June 10, 2001.

Breaches in the Standard of Care

The following represent the breaches in the standard of care as identified by Gerald M. Dworkin who served as the Aquatics Safety and Water Rescue Expert in this case:

1. Deer Creek State Park Management and Lifeguard service were negligent in their duties (A) to prevent this incident; (B) to recognize the potential for this type of incident, as well as the incident itself; and (C) to manage the potential for this incident, as well as the incident itself.

2. The Lifeguard and the Deer Creek State Park breached the Standard of Care in the operation of this facility in numerous ways that resulted in the near-drowning incident and death of Suzana Dukic.

3. The Lifeguard should not have abandoned her post, leaving the pool, and specifically, leaving Suzana unguarded and unprotected.

4. Ohio Administrative Code requires lifeguards when public swimming pools are operational. When lifeguards are off duty, the pool should be closed to the public and the fence and gates should be secured to prevent unauthorized access/entry. The Deer Creek State Park, upon suspension of Lifeguard services, failed to close the pool to all patrons, and failed to secure the gates and fence around the pool.

5. The Deer Creek Resort Lifeguard Manual specifically states that the outdoor pool is open from 9 AM to 9 PM and must always have a guard present when open. Yet, according to the Lifeguard schedule, only one Lifeguard was scheduled to work on Friday, June 8, the day of the incident, and she was only scheduled from 9 AM to 5 PM.

6. The Lifeguard Manual also specifically states that “A lifeguard must be present at the outdoor pool whenever the pool is open for operation” and that “no persons shall be permitted to enter the swimming area or swimming pool when it is not officially open”. However, according to the Lifeguard's Voluntary Witness Statement, she wasn’t issued the Lifeguard Manual until the day after the incident. Therefore, the Lifeguard was operating at this facility without any established protocols or procedures to follow in her capacity as a Lifeguard.

7. The Deer Creek State Park failed to execute the appropriate Standard of Care governing the functions and responsibilities of Lifeguard and Management personnel, especially as it pertained to opening and closing the swimming pool facility as evidenced by the fact the swimming pool was left open to the public when the Lifeguard abandoned her post.

8. The Deer Creek State Park failed to establish appropriate Standard Operating Procedures (SOPs) or Guidelines (SOGs) governing the function, responsibilities, and operations of their Lifeguard and Management personnel. The Lifeguard was allowed to abandon her post, leaving the facility open and unguarded, that resulted in Suzana's unobserved submersion and near-drowning. When the Lifeguard abandoned her post, this showed a total disregard for the safety of the patrons in the swimming pool and the surrounding pool area.

9. Although Deer Creek Resort published a Lifeguard Manual, this manual had not been issued to the Lifeguard prior to the incident, and this manual failed to address the Lifeguard’s responsibilities when closing the swimming pool to the public. The manual also fails to identify a chain of command and the operational procedures required to be followed during a break-down in communication. According to the Lifeguard, she attempted to contact her supervisor and when she could not reach her supervisor, she simply left her post, leaving the swimming pool and swimming pool area unguarded.

10. The Deer Creek State Park failed to conduct an appropriate threat analysis of the facility and failed to assess the physical hazards that existed. Furthermore, they failed to assess those activities that placed patrons, particularly Suzana, at risk. And, they failed to appreciate the dangers that existed as a result of the combination of hazards and risks. This failure resulted in the submersion incident of Suzana Dukic.

11. The Deer Creek State Park failed to assess the physical design and layout of the swimming pool and its features in order to determine the number of qualified Lifeguards required to safely operate this facility. Based on my understanding of the design, size, and other features of this facility, regardless of the OAC requirements, there should have been a minimum of at least two (2) Lifeguards on duty while the pool was open to the public. Furthermore, knowing there were approximately 323 adults and children attending this weekend outing, the Deer Creek State Park should have provided increased Lifeguard protective services in order to safeguard their guests in and around the swimming pool and swimming pool area.

12. The Lifeguard, as an employee of Deer Creek State Park, had a duty to act and by abandoning her post, the Lifeguard breached her duty to prevent this incident. She failed to recognize the potential for this incident. And, because she abandoned her post, she failed to recognize Suzana's signs of distress and drowning. And, because she abandoned her post, she failed to manage the near-drowning incident. Because there was no Lifeguard present at the time Suzana was extricated from the water, appropriate resuscitation efforts were excessively delayed.

13. The Deer Creek State Park failed to provide appropriate communications systems. The Lifeguard was unable to locate and communicate with her supervisor prior to abandoning her post. Once Suzana was discovered submerged on the bottom of the 10' deep section of the pool, she was removed and bystander CPR was initiated. However, definitive and Advanced Life Support care was delayed due to the failure to provide appropriate communication systems to alert park authorities and to alert emergency dispatch and Fire, Rescue, Law Enforcement, and EMS personnel.

14. The Deer Creek State Park failed to develop Emergency Operations Plans (EOPs) or Emergency Response Plans (ERPs) and failed to drill their Management and Lifeguard personnel in these plans. Although they published a Lifeguard Manual that contains various Emergency Action Plans (EAPs), the Lifeguard had not been provided this manual prior to this incident. All Lifeguard personnel should be trained in emergency procedures as part of their pre-service and continuous in-service training. However, since the Lifeguard manual had not been provided to the Lifeguard prior to this incident, she was not trained in these emergency procedures. When the Ohio Department of Natural Resources’ officer responded to this incident, the officer was not able to provide effective or adequate ventilations because a pediatric mask was not available. Both adult and pediatric size masks should have been available, and this officer should have known that in the absence of a pediatric mask, the adult mask could have been inverted for use on a pediatric patient.

15. The Deer Creek State Park failed to provide guidelines or to instruct the adults participating in the Foster Care weekend program in appropriate supervision procedures to supervise and safeguard children engaged in activities in and around the swimming pools.

16. The Deer Creek State Park failed to provide appropriate first aid and resuscitation equipment needed to quickly and effectively respond to respiratory and/or cardiac emergencies. This equipment should have included Personal Resuscitation Masks and/or Shields, Positive-Pressure Ventilation Devices (i.e. Bag-Valve-Mask Resuscitators), and Oxygen Administration Equipment.

17. As for the agency responsible for conducting this Foster Care Weekend Program, Athens County Children's Services failed to assure appropriate Lifeguard and supervision for those persons participating in activities in and around the swimming pools.

18. Athens County Children's Services failed to instruct the adults, namely the Foster mother, in appropriate supervision procedures to safeguard children in and around the swimming pools.

19. Athens County Children's Services failed to pre-plan and develop appropriate Emergency Response Plans to deal with emergency incidents in and around the swimming pools during their weekend program.

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To v. City of WYZ, et. Al.

On or about Thursday, June 21, 2001, seven-year-old Jerry Ly drowned while playing at City Park in Lake XYZ. At the time of the incident, there were six XYZ City lifeguards on duty at City Park. Jerry had been playing in the water at City Park, along with other children from the St. Margaret Shelter in Spokane, Washington and was being supervised by an adult resident of that shelter. A log had floated into or adjacent to the swimming area and was lodged against the swim boundary buoy line and piling. Just prior to the incident, Jerry had been playing on and around that log.

Jerry was observed floating face down at the surface of the water in approximately 3.5' of water by Miranda Boyd, a patron at City Park. Miranda pulled Jerry from the water while waving and screaming for assistance and then handed Jerry to her friend, Richard Seidel. Richard continued to remove the child from the water and placed him on a towel and continued yelling for help. Kevin Haughton was walking on XYZ Trail and heard Miranda and Richard yelling for help. He hooked down the beach toward the water and saw a crowd of people around a small child who was lying on a towel on the beach. Kevin then ran to the child and initiated CPR until he was relieved by an off-duty police officer and responding Police and EMS personnel. Jerry was then transported by EMS personnel to XYZ Medical Center where he was pronounced dead.

The City of XYZ owned and operated City Park and staffed this facility with lifeguard personnel. The park was equipped with four (4) elevated lifeguard stands that were designed to provide lifeguard personnel with an elevated vantage point in order to provide effective surveillance of patrons in the water and on the beach. Prior to and during this incident, City Park was staffed with six (6) lifeguards, but only 2 of the 4 stands were occupied, and 4 lifeguards were inside the lifeguard shack.

The City had the responsibility of hiring, training, and supervising their lifeguard staff. However, when the incident occurred, the lifeguards failed to respond appropriately and failed to provide basic life support care to Jerry Ly. Although City Park was a USLA-certified beach, the USLA criteria required for certification was not met in that the lifeguards were not equipped with the resuscitation equipment and communication equipment required by USLA standards.

The training, direction, equipment, and supervision of the lifeguard personnel was entirely ineffective. Standard Operating Procedures/Guidelines were non-existent, and the lifeguard personnel were not prepared properly or equipped to respond to this incident. Emergency Response Plans (ERPs) were not developed for this type of incident, and lifeguard personnel were not adequately or effectively drilled to respond to this type of incident.

The City Park lifeguards failed to prevent this incident. Prior to Jerry's submersion, he had been playing near the piling and on the log adjacent to the piling. The City Park lifeguards failed to recognize the danger associated with this type of physical hazard and the risks associated with this type of activity. They failed to remove or warn patrons of this hazard, and they failed to prevent Jerry from engaging in this activity that placed him at increased risk of injury and/or drowning.

The City Park lifeguards failed to use effective surveillance protocols and failed to recognize the incident. Jerry Ly's distress (i.e. unconscious and floating face-down in the water) was observed by an untrained patron, rather than by trained and certified lifeguard personnel. Although there were several hundred patrons on the beach and/or in the water, only two lifeguard stands were manned at the time of the incident. Four lifeguards were in the lifeguard shed prior to and when the incident occurred.

The lifeguard positioned in stand #4, the closest stand to the incident scene, failed to observe Jerry's distress. When Miranda rescued Jerry and removed him from the water and passed him along to Richard, this action went unnoticed by the lifeguard. When Miranda and Richard screamed for help, although Kevin, who was walking on the trail behind the lifeguard stand, heard the commotion, the lifeguard in stand #4 did not. When Kevin initiated CPR on Jerry, this too went unnoticed by the lifeguard in stand #4.

Prior to the incident, the lifeguards failed to perform radio checks of their communication equipment. When the incident occurred, the lifeguards in stands #3 and #4 were unable to communicate with each other or other lifeguards via the use of their radios. The lifeguards in these two stands had no other means to alert the lifeguards in the lifeguard shack and had to physically run away from the beach and into the shack to alert the other lifeguards of this incident.

Once the incident was recognized, the lifeguards failed to manage the incident appropriately. No incident command or control was taken by any lifeguard. No lifeguard intervened with emergency resuscitation treatment. No barrier devices were offered by the lifeguards to the patrons who were attempting to resuscitate Jerry.

As a result of the City Park lifeguards' failure to prevent this incident; their failure to recognize the potential for this incident, as well as the incident itself; and their failure to appropriately and effectively manage the incident, Jerry Ly died as a result of a prolonged submersion that went undetected by lifeguard personnel for several minutes. And, once the incident was finally recognized by lifeguard personnel, the City Park lifeguards failed to appropriately respond and manage this incident and failed to administer appropriate Basic Life Support care prior to the arrival of Law Enforcement and EMS personnel."

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and answer these questions:

Could you expect that a fully trained Red Cross lifeguard, who had attended and stayed awake during all classes, read the entire manual, passed skills testing and the written test, would do things differently than the guard(s) in question?

What?

Why?

What percentage of the fault lies with the lifeguard(s) or with the management?

If you were a guard hired to work at these two places, what might you have done differently?

Be prepared to defend your opinions in class.