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Judge Rejects Negligence Lawsuit After Toddler Drowns in Apartment Complex Pool

Posted by Jesse Guerra on May 15, 2013

What is an apartment complex’s duty with respect to an on-site swimming pool? Earlier this year, a federal judge in Philadelphia dismissed a lawsuit brought by the mother of a toddler who drowned in a pool operated by an apartment complex the family was visiting. The judge found the child’s death was not the result of the property owner’s negligence.

Toddler Drowns at Pool With No Lifeguard

In July 2010, Korrien Marie Castro and her children visited Shavon Melendez at her residence in the Sweetbriar Apartments in Lancaster, Pennsylvania. Sweetbriar operates a swimming pool open to residents and their guests. Sweetbriar did not provide any lifeguards for the pool, and posted a sign that individuals “swim at your risk.”

Around the time of Castro’s visit, Sweetbriar further warned residents, including Melendez, about the complex’s pool safety policies. No children under 14 could be present in the pool area without a parent or guardian present and each resident could only bring two guests.

During their visit to Sweetbriar, Castro and her children ate lunch with Melendez and others in the pool area. At some point Castro realized her son, Jahli Clemens, who was just shy of three, was missing. After looking for Clemens in Melendez’s apartment, they heard a commotion from the pool. Melendez jumped into the pool and retrieved Clemens. He was taken to a local hospital and pronounced dead.

Judge Rejects Lawsuit for Lack of Evidence

Castro sued Sweetbriar’s owner, CLK Multifamily Management, LLC, alleging negligence. Castro argued management contributed to Clemens’ death because (1) there should have been a lifeguard on duty, (2) the pool area was overcrowded, (3) the locks around the pool area’s gates were defective and (4) management should have shut down the pool in the first place due to safety issues.

U.S. District Judge Mary A. McLaughlin issued a decision on January 24, 2013, ruling in favor of CLK. Judge McLaughlin said all of Castro’s negligence claims lacked merit. For example, on the issue of no lifeguards, Judge McLaughlin said that under Pennsylvania law, lifeguards were only mandatory at “recreational swimming establishments” open to the general public. Pools operated by apartments, condominiums or other hotels for the benefit of residents are excluded.

As for the other negligence claims, Judge McLaughlin said there was no evidence connecting Castro’s allegations to her son’s death. By her own admission, Castro “took her eyes off” Clemens for several minutes despite CLK’s clear warning that parents were responsible for their children’s safety in the pool area. Castro presented no evidence, to Judge McLaughlin’s satisfaction, showing CLK might have been at fault.

Understand and Protect Your Rights

Sweetbriar apparently operated its pool within the requirements of state and local law. Jahli Clemens’ death shows why it’s important for parents to understand how their own localities regulate different types of swimming pools. But Korrien Marie Castro’s lawsuit should also not discourage anyone from working with a swimming pool accident attorney when there’s evidence of a pool owner’s negligence. If you or a family member have suffered injuries, even death, due to unsafe swimming pool conditions, contact Jesse Guerra at the J. Guerra Law firm right away.

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Second Massachusetts Teen Death Raises Questions About High School Pool Safety

Posted by Jesse Guerra on May 06, 2013

Should high schools maintain swimming pools? A local newspaper editorial in Lowell, Massachusetts, asked that question following two drowning deaths in the past nine months at pools operated by local high schools. The editorial noted that in Massachusetts, high school pools are not subject to the same state regulation as pools in private homes or “semi-public” areas.

Few Answers for Freshman’s Family

On April 9, 2013, Greater Lowell Technical High freshman Danny Svay died after drowning in the school’s pool. Local police said Svay was found at the bottom of the pool unresponsive. Although police declared the drowning accidental, the Middlesex County District Attorney reportedly continues to investigate the circumstances surrounding Svay’s death. Many details remain unclear, including how Svay was found in the water, how long he was there, and exactly who was in charge of pool safety for the school. Texas pool accident

The Boston Globe reported on April 12 that Svay’s family was “desperate” for answers about his death and how it might have been prevented. TheGlobe suggested that Svay was in the pool for gym class and said that he was “not a strong swimmer” and “frightened” of the water. Following Svay’s death, Greater Lowell Technical High closed the pool for the remainder of the school year to everyone, including outside groups using the facility.

Immigrant Dies in Unsecured Pool

Sadly, this is not the only accidental teen drowning to hit the Lowell community in recent months. Last August, 17-year-old Eddie Gayyean drowned in the pool at Lowell High School less than five miles from where Danny Svay died. Gayvean, a recent immigrant to the United States from Liberia, apparently gained access to the Lowell High School pool after hours. His body was later discovered by a swimming team that had arrived for practice. The Lowell Sun noted that “it was common knowledge the swimming area was accessible” and school officials had not taken steps to secure the pool even after repeated trespassing incidents.

Massachusetts does not directly regulate swimming pools operated by schools. While pool construction is subject to oversight from the state’s public health department, once operational, it’s up to the school district to comply with local health and safety codes. The Lowell Sun reported that a review of the Lowell High School pool following Eddie Gayvean’s death revealed 32 “routine” health-code violations. Indeed, neither the pools at Lowell High School or Greater Lowell Technical had full-time lifeguards, which are considered too costly for school budgets.

Lessons Learned

The Lowell Sun posed the question, “If we cannot operate a pool with absolute safety, is it worth having one?” It’s a natural reaction to the two recent tragedies. While it’s unlikely the nation’s high schools will shutter their swimming pools, these deaths emphasize the importance of safety and accountability for all pool operators. The families of Danny Svay and Eddie Gayvean deserve answers. And if you or a family member find yourself in a similar situation, you don’t have to just sit on your hands and wait for officials to react. Contact nationally renowned swimming accident attorney Jesse Guerra at the J. Guerra law firm today if you need help in Texas or anywhere in the United States.

Jury Acquits Lifeguard In Drowning Death of Eight-Year-Old Boy

Posted by Jesse Guerra on May 01, 2013

Public swimming pool patrons expect lifeguards to be alert and ready at all times. Even a momentary lapse can prove fatal. Recently a jury in the United Kingdom considered the role of a lifeguard's inattention in the tragic drowning death of an eight-year-old child.

In February 2008, Lajla Kaur took her four children to the Wolverhampton Swimming and Fitness Centre in central England. Kaur went to change her clothes while her children headed for the pool. A few minutes later, Kaur heard a commotion from the locker room. She ran out to the pool and saw her eight-year-old son, Suraj Mall, dead. Mall had been pulled out of the pool, where he'd been found floating face down.

Boredom or “Messing Around”?

Nearly five years later, prosecutors for the British Crown charged the lifeguard on duty that day, Kelly Woods, with failure to properly supervise pool users. Woods, now 31, had pulled Mall out of the pool and tried to revive him, but prosecutors said she should have reached him sooner. Witnesses said Woods was talking to another pool customer for almost 15 minutes before noticing Mall, who’d been in the water for almost two minutes. Woods said she initially thought the boy was “messing around” and not in any danger.

During the two-week trial in Wolverhampton Crown Court, prosecutor James Puzey said Woods knew the centre’s rules limited outside conversation to just two minutes. However, Barry King, the customer who had been talking to Woods, testified that the lifeguard never took her eyes off the pool and scanned the area constantly during their conversation. Puzey argued that Woods suffered from “boredom” after a long shift (Mall’s drowning occurred just before 5 p.m. local time). Woods’ attorney, Ben Compton, responded that his client was not at fault and this was a tragic case of “silent drowning.”

On April 30, an eleven-member jury announced a not guilty verdict on the charge that Woods failed to properly supervise the pool. The trial judge, Amjad Nawaz, said afterwards that “[t]his verdict is no reflection on anybody at all,” and he hoped Woods and Mall’s family would be able to get on with their lives. An official with the British government’s Health and Safety Executive, which authorized the Woods prosecution, told reporters that this case still sent a message to pool operators “worldwide” that “constant vigilance” was necessary to protect all swimmers.

Waiting Can Be Costly In Accident Cases

One problem in a case like this is reconstructing events long after the fact. There was a more than five year interval between Mall’s death and Woods’ trial. Witness testimony may become conflicted, unreliable or even unavailable.

That’s why, if you or a loved one is involved in a serious accident like the one that claimed the life of Suraj Mall, it’s important to get in touch right away with an experienced swimming pool accident attorney who can advise you of the steps you need to take to ensure the truth is not lost. If you need help in Texas or anywhere in the United States, contact Jesse Guerra of the J. Guerra Law Firm today.

Teenager's Drowning Death Leads YMCA to Defend Pool Safety

Posted by Jesse Guerra on April 26, 2013

The tragic death of a teenager in a drowning accident can leave many unanswered questions. Officials and residents in the small Canadian town of Goderich, Ontario, are still coming to terms with the circumstances surrounding the recent death of 14-year-old Sarah Henry-Mills during a birthday party at a municipal swimming pool. A three-month investigation by the pool's operator claimed no wrongdoing on its part.

Henry-Mills died after she was found drowned in a swimming pool on January 19, 2013, at the Maitland Recreation Centre, which is owned by the Town of Goderich and operated by the non-profit Goderich-Huron YMCA. According to witness accounts, a YMCA member noticed Henry-Mills face down in the deep end of the pool and signaled for a lifeguard. She was underwater for more than three minutes before anyone noticed. The lifeguard retrieved her, other bystanders performed CPR and she was taken to the hospital. Unfortunately it was too late. Henry-Mills died four days later, January 23, at London Health Sciences Centre.

The YMCA Makes Changes, Disclaims Responsibility

After a number of miscommunications between Goderich officials and YMCA management, the Y presented a 100-page accident report to the town council on April 22. Perhaps unsurprisingly, the YMCA concluded the pool was safe and complied with all Ontario provincial safety regulations, including the presence of two on-duty lifeguards. Nevertheless, the YMCA had no explanation for why Henry-Mills was in the deep end of the pool or how she managed to drown.

Throughout the past three months, some Goderich city council members were critical of the YMCA's lack of communication. The city ultimately owns the recreation centre and pool and the YMCA has certain contractual duties. In February, council members blasted the YMCA leadership for responding by letter instead of appearing publicly before the council to answer questions about the accident leading to Henry-Mills' death. The Y said at the time it was still investigating the accident and needed the time to prepare a more detailed report for provincial regulators and insurers.

Ultimately, the report claims to exonerate the YMCA and its safety procedures. The Maitland Recreation Centre pool remains open and “fully operational” according to the YMCA. The Y said it has increased lifeguard patrols and added a buoy line to mark the deep end of the pool.

Looking Out for Your Interests

The exact cause of Sarah Henry-Mills' drowning may never be known. It's also unclear if the family intends to bring legal action against the town or the YMCA. But as the YMCA's response—or lack of response, as some city officials maintain—shows, pool operators will always move to deflect blame in the wake of tragedy. The YMCA is looking out for its own interests first. And if you find yourself in a situation like that of Henry-Mills' family, then you need to be looking out for your interests as well. If you're in Texas or anywhere in the United States and wish to consult with a nationally known swimming pool accident attorney, please contact Jesse Guerra at the J. Guerra Law Firm.

Swimming Accident Lawsuits & False Records

Posted by Jesse Guerra on April 13, 2013

When a swimming pool drowning, near-drowning or other accident strikes, those harmed may have a legal case against pool owners and operators for negligence. There are many different standard safety protocols that operators need to follow in order to protect guests. When they fail to meet those standards, then they may be liable for harm caused.

Unfortunately, many charged with this responsibility give short shrift to the actual safety of those using a pool. In fact, in many cases owners and operators are willing to falsify records and otherwise lie about steps that were taken to keep the water safe and secure. That issue is present in one employment case, where a former gym worker claims that he was fired for refusing to falsify records about maintenance issues regarding the gym’s swimming pools. The New York Daily News has the story.

False Pool Records

Specifically, the former-employee claims that the pools failed chlorine and pH level tests used to gauge the quality of the water in the pools. Yet, even though the acid tests were failed, his bosses pressured him to lie to the Department of Public Health about the results. Apparently the reputation of the company and saved expenses were more important than the safety of pool guests and gym users.

According to the lawsuit, the employee admits that he kept two log books--one that showed the actual levels for the pool and another that had fake readings given to the Department of Public Health. All of this was done to mislead the regulators (and the pool users) about the safety of the water. And, amazingly, it was done even though residents at the facility were complaining of rashes caused by the water.

The employee explains that he eventually told his employers that he would no longer submit fake reports. It was then, he claims, that he was fired by the company. Reports suggest that the employee had had enough after learning of the real harm that resident’s were experiencing. As a result of those resident complaints the Department of Public Health closed the pool on various occasions.

Legal Accountability After Pool Accident

We often find that pool logs are falsified in many pool drowning death cases. Its a last ditch effort to cover up murky pool conditions. It is truly sad that people and companies will go to such length to escape liability. That’s why you need experienced pool lawyers to uncover the truth in cases where poor pool maintenance exists.

For help in Texas or throughout the country, please reach out to our nationally renowned swimming accident attorney, Jesse Guerra for guidance and assistance.

Tragic Near-Drowning on Disney Cruise Ship in Port Canaveral

Posted by Jesse Guerra on April 07, 2013

It can’t be repeated enough: drowning risks exist anytime one is near the water. It doesn’t matter where it is, who is swimming, or how deep the water. Understanding the seriousness of those risks is crucial to ensuring that everything reasonable is done to limit the potential for harm as a result of an accident. When all of those safeguards are not in place, then it is often only a matter of time before someone is hurt.

Disney Cruise Near Drowning

For example, recently news broke of a scary near-drowning accident on a docked Disney cruise ship. As is so common in swimming accident cases, the victim was a youngster--only 4 years old. A Washington Post story on the situation explains that the child, Chase Lykken, was rushed to a local hospital after he was discovered. The accident struck on the Disney “Fantasy” cruise ship that was docked at Port Canaveral. The child was with his family while awaiting the ship’s departure on a Caribbean cruise.

Details on the situation are sparse, but some witnesses explain that the child was pulled from one of the pools on the ship. After being taken out, he was not breathing for several minutes. Observers attempted to perform cardiopulmonary resuscitation before rescuers arrived and quickly took him off the ship. He was moved around to several hospitals in the aftermath as medical experts tried to save his life and minimize damage.

Since the accident the child has been transported back to a facility near the family’s home in Minnesota. According to a report in the Orlando Sentinel, while the boy survived, he did not make it unscathed. It seems that he suffered serious brain damage as a result of the tragedy. Brain damage is common following near-drownings, because oxygen deprivation to the brain can cause serious harm in even a short time. In this case, reports indicate that “the parts of Chase's brain that were damaged control motor skills and basic functions, including temperature; heart and respiration rates; hunger and thirst; the sleep-wake cycle; and eyesight.”

As this tragedy reminds us, it is critical for all those who own or maintain pools--including cruise line officials--to do everything in their power to ensure all safety precautions are followed and as many swimmer as possible are saved from preventable tragedies. Families who are affected should also remember that they may have legal rights to recover redress following the accident to ensure those harmed have access to funds to ensure their full recovery. Consider contacting a drowning attorney to learn more from those with experience in these cases.

Death At South Padre's Schlitterbahn

Posted by Jesse Guerra on March 25, 2013

Several news outlets reportedly recently on a tragedy that occurred at the Schlitterbahn resort in South Padre. While news on the incident is still just coming out, it seems that two employees were injured while performing maintenance work, with one of them passing away from his injuries at the hospital. This sad story is yet another reminder of the need for owners and operators of these waterpark facilities to be incredibly vigilant about the safety of the spaces for all involved--from guests and employees to maintenance workers. There is no excuse for cutting corners at any point--a 100% commitment to safety must be the rule.

Schlitterbahn Wave Generator Lawsuit

According to reports, this incident involved lifeguards harmed by a wave generator at the waterpark. The facility has been tight-lipped about the incident, but it seems that the accident occurred “behind the scenes” at the park while at least two employees were conducting maintenance on the wave generator. The one employee who ultimately died as a result of the accident, 20 year old Nicholas Benavides, was allegedly a well-liked lifeguard at the facility.

The incident seemed to cause severe head trauma to the young man, and he was rushed to a local hospital following the event. There were unconfirmed reported about this condition, but last week the facility confirmed that he had died as a result of the incident. Bizarrely, the incident was reported to the federal Occupational Safety and Health Administration (OSHA) as a fatal accident even before the young man ultimately passed away.

Legal Liability After Schlitterbahn Accident

All waterpark accidents, including those that affect both guests and employees, demand close scrutiny to determine exactly what went wrong and what needs to be done to ensure that something similar does not happen in the future.

In this case it seems like the family of the young man has already taken preliminary steps to ensure full legal accountability. This is important as it hopefully guarantees that the incident will not be swept under the rug. Many different issues may be implicated in a potential legal case stemming from this Schlitterbahn death. That includes understanding the make, installation and upkeep of the machine. Questions must also be asked about the company’s safety protocols and training with regard to these devices. Similarly, there may be questions about why this man was working on the wave generator at all if is he was a lifeguard and not trained as a maintenance worker.

For assistance from a nationally-renowned water safety advocate and attorney, please reach out to the waterpark accident lawyer at the J. Guerra Law Firm for tailored advice and assistance.

Legal Liability Following Disney Pool Drowning?

Posted by Jesse Guerra on March 18, 2013

Many different news outlets reported last week on the tragic drowning death of a boy in a Disney World pool. The awful event is another reminder of the need for swimming pool owners and operators--particularly those at high-profile attractions like Disney World--to be extremely vigilant about aquatic safety at all times. With warmer weather coming soon, more and more families will have youngsters in or near the water. For that reason, now is as good a time as any to discuss the importance of pool owners and operators following the law to prevent accidents.

Disney World Drowning

According to reports, a thirteen year old boy, Anthony Johnson, was with his family at the Disney’s Pop Century Resort in Lake Buena Vista, Florida. The family was apparently visiting from their home in Fordland, Missouri. The accident occurred last Sunday night, while the teen was playing in a large pool at the resort. The teen was apparently in water that was about four and a half feet deep, with many others in the water and around the pool.

It seems that the lifeguards were not on duty at the time, having just left their posts. Anthony somehow became trapped underwater for an extended period of time--several minutes--before he was noticed by another family member. His cousin eventually pulled him out of the water, and onlookers rushed to aid when they realized that he was not breathing. The young man was brought to a local hospital. However, doctors were unable save his life, and he died on Tuesday.

Legal Liability

It is far too early to say with any certainty how legal liability may apply in this case. However, in many similar accidents, where a guest drowns at a resort to public pool, investigators discover various lapses in safety practices.

Obviously there is nothing that can be done to bring back a lost child, like the one taken far too soon in this case. But a lot can be done to ensure that a similar tragedy does not strike another family. In many cases, those charged with following safety protocols and ensuring children are not at risk fail to do everything required of them in the name of safety. When those lapses contribute to an accident, the law demands that the wrongdoers be held accountable. In that way changes can be forced which may save a life down the road.

If you or someone you know has been injured or died while in the water, please take a moment to contact our swimming accident attorney. Attorney Guerra is recognized as one of the nation’s leading aquatic safety attorneys, having worked on cases throughout the country to ensure proper redress and demand changes at resorts and hotels.

Dallas Drowning Attorney Jesse Guerra Wins Jury Trial

Posted by Jesse Guerra on February 21, 2013

When a child dies or is seriously injured in a swimming accident, it is critical that all those involved in the incident be held accountable for safety lapses that contributed to the incident. Most notably, owners and operators of pools have a duty to ensure basic safety rules are followed to protect swimmers--often young children. When they fail in that regard they can be held liable for the child (or their family) for the harm.

That is exactly what happened in a recent case won by our Dallas swimming accident attorney, Jesse Guerra. Attorney Guerra represented the family of a teenager who drowning in the summer of 2010 at the Plantation House Apartments. The facility was managed by an entity known as MBW Realty Company LLC.

According to the lawsuit, the company allegedly failed to maintain the pool in a safe condition. Their lapses ultimately led to the 16-year old’s drowning death. Most of the time when these lawsuits are filed, after a discovery period, the parties are able to reach a settlement to resolved the matter. However, in some cases, the situation goes all the way to a trial. That is what happened here.

The swimming pool drowning trial started last week and ran a total of seven days. After a day and a half of deliberations, earlier this week the jury in the case returned a verdict in favor of the family. They found the management company responsible for contributing to the death, awarding the family just shy of $1 million ($982,000).

Mr. Guerra's practice is centered on swimming pool litigation and aquatic safety nationwide. He explains how, “the verdict sends a message to all landlords across the City of Dallas and state of Texas that Apartment pools must be maintained up to codes and be safe for children. The pool rules are in place to prevent tragic events. They are not optional. It’s the law. "

Understand Safe Swimming As Warm Weather Nears
It is hard to believe, but in only a few weeks the official start of Spring will be upon us. Of course, with warmer weather comes more people outside enjoying the sun. One of the most common activities at these times involves ways to beat the heat by getting in the water. From spending time at public pools and waterparks to enjoying pools at motels and apartment complexes, residents in Dallas, Texas and throughout the country spend considerable amount of time participating in aquatic activities.

As the recent case exemplifies, far too many of these pools are not maintained according to legal safety standards. As a result, tens of thousands of community members are put at risk every time that they take a dip. Our youngest residents are usually the most vulnerable. Children’s inexperience and still developing mental awareness means that they often do not understand swimming risks. In fact, these vulnerabilities are the exact reasons why many legal rules are in place to ensure owners and operators take common sense steps to keep those using the water safe.

If you or someone you know is ever harmed in a swimming accident in a drowning or near-drowning, it is critical to seek out legal help and ensure there is full accountability. The Dallas drowning attorney at our firm has extensive experience in these cases and is able to help ensure your rights are protected to the fullest extent and those contributing to an accident are required to make changes to keep others safe in the future.

Near Drowning in Dallas

Posted by Jesse Guerra on January 20, 2013

Considering it is the middle of the winter season for North Americans, few residents are thinking about water safety at the moment. Come May and June, we will all see a rush of articles about remaining safe and secure in the pools, rivers, water parks, and other locations. But right now, it is all quiet on the Western front. This is unfortunate because every day there are still thousands of youngsters who are in and around the water throughout Texas. The risk of an accident still remains.

For example, not long ago there were reports of a near-drowning at a Trophy Club pool. The facts of the situation as they have been released thus far are similar to those seen in many child drowning accidents. Dallas News suggests that a two-year old child was near the water earlier this month when, for reasons that are still being sorted out, he ended up in the pool.

Police were called and emergency responders arrived after he was found unresponsive and not breathing. CPR was performed and the child was brought back to a semi-conscious state. As of right now the medical experts believe that the boy will survive, but it was noted that he was in “serious” condition. One can only hope that the child will make a full recovery and there will not be any long-term side effects.

Near-Drowning Damage
Sadly, many children who are harmed in near-drowning accidents have physical damage that takes years to improve, and the harm is sometimes permanent. Oxygen deprivation is the hallmark of a drowning. And when a child’s brain is deprived oxygen for a certain length of time, damage may result that cannot be reversed. Even in cases where the child survives, that damage may permanently alter their lives and basic functioning.

Wherever There is Water, There is Risk
As this winter near-drowning in Texas reminds us, these accidents can strike at any time. The summer is not the only time for community members to be aware of the risks and to take action to ensure safety. The need is especially potent for owners and operators of spaces where swimming occurs indoors--like at hotels, motels, some apartment complexes, and water parks. These spaces often invite guests to partake year-round, and so there is obviously no excuse for lapses in safety protocols that risk the lives of simmers.

If you or someone you know may have been harmed in a drowning accident, please contact the Texas swimming accident lawyer at our firm to see what can be done to ensure fair compensation and full accountability.

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