$1.9 Million Recovery in Wrongful Death
Rossetti & DeVoto recovers $1.9 Million for the family of a 16 year-old autistic student whose tragic drowning death occurred while taking part in a weekly swimming class at the Burlington County Special Services School in Westampton, New Jersey.
Lou DeVoto handled the case for RD. Shortly after the drowning, DeVoto filed an emergent action in New Jersey Superior Court – Burlington County to compel the Burlington County Special Services School District to preserve and turn over key evidence before the filing of a lawsuit. The judge agreed ordering the turnover of all evidence before the mandatory six-month waiting period applicable to lawsuits filed against public entities. This proved to be essential as the school had a closed captioned video of the pool but that recorded over itself after seven days.
RD obtained immediate access to the pool so that an investigation could be undertaken before it was altered or destroyed. DeVoto hired world renowned aquatics expert Thomas Ebro to perform the inspection and to review the evidence turned over by the school district. The video revealed that the student was taking part in his weekly Friday swimming session at the school. The 45 minute class was almost over when the student made his way down to the deep end of the pool and entered the water to most likely retrieve swimming rings from the bottom of the pool. Earlier in the session, he was taken to the deep end for the first time to practice retrieving rings from the bottom of the pool. He struggled to get off the bottom in his supervised exercise clearly demonstrating that he was not a deep end swimmer. It is believed that he was returning to this area to collect the remaining rings at the end of the class. The pool was located indoors and was equipped with an elevated lifeguard stand and supervised by two, Red Cross Certified lifeguards and various teachers that also had supervisory obligations at the pool. At no time did any lifeguard or teacher detect that the child going toward the deep end or going under the water. Unbelievably, the child remained undetected at the bottom of the pool for almost 15 minutes until he was discovered missing. Resuscitation efforts failed and he was pronounced a short while later at Virtua Hospital in Mt. Holly.
The video images were compelling and demonstrated that neither of the two lifeguards on duty positioned themselves in the lifeguard stand despite industry standards and school policies to the contrary. According to plaintiff’s aquatic expert, the lifeguard stand enables the lifeguard to have the best view of the entire pool in addition to providing the best view for seeing down into the pool. The lifeguards also failed to vigilantly scan the pool in accordance with Red Cross lifeguarding standards, failed to make certain that all swimmers safely exited the pool after class ended, failed to perform a student count after the class ended and violated numerous school district policy and procedures for pool safety. According to Mr. Ebro, the evidence clearly depicted a lack of vigilance on behalf of the lifeguards who had a clear opportunity to have discovered the child in time to have saved his life.
The video evidence also depicted an approximate 1 minute long struggle by the student to get back to the surface before losing consciousness. Jerome Modell, a University of Florida professor emeritus and a pioneer on the human response to the drowning process, was hired as an expert to discuss the boy’s pain and suffering before losing consciousness. This was very significant to the settlement. Because the child was severely autistic and unable to have provided future services to his family, the only available damages under New Jersey law was the one minute of conscious pain and suffering.
The $1.9 Million settlement was reached after a lengthy Mediation presided over by Mark Epstein, Retired Superior Court Judge in Middlesex County. DeVoto stated that “my clients are devastated at the loss of their son, who provided them with more gifts than one could imagine. Nothing can replace him but the family will move forward while continuing to remember him.”