State lifeguard's failure to act not 'proximate cause' of drowning

By Ed Wesoloski
The Daily Record Newswire
 
The estate of a 19-year-old learning-disabled student who drowned in a state facility’s swimming pool cannot sue the on-duty lifeguard because the guard’s conduct was not “the proximate cause” of the student’s death, the Michigan Supreme Court has decided in a 6-1 decision.

At issue was whether William J. Harman, a certified lifeguard who was both a student and an employee of the Michigan Career and Technical Institute where William T. Beals drowned, was immune from suit under the governmental tort liability act.

The act provides that governmental employees are immune from tort liability if their conduct “does not amount to gross negligence that is the proximate cause of the injury.”

Under Robinson v. Detroit, 462 Mich. 439 (2000), “proximate cause” for purposes of the GTLA, is “the one most immediate, efficient, and direct cause of the injury or damage.”

In its suit, Beals’ estate alleged that Harman had been inattentive and did not respond to calls for help from another student who found Beals’ body on the bottom of the pool’s deep end.

Justice Brian K. Zahra, writing for the majority in Beals v. Michigan (MiLW No. 06-88998, 21 pages), said that “the causal connection between defendant’s failure to intervene and the deceased’s drowning is simply too tenuous[.] …

“That the reason for the deceased’s prolonged submersion in the water is unknown does not make that unidentified reason any less the proximate cause of his death.”

In reversing the Michigan Court of Appeals on this issue, Zahra was joined by Chief Justice Robert P. Young Jr. and Justices Stephen J. Markman, Mary Beth Kelly, Bridget M. McCormack and David F. Viviano.

In his dissent, Justice Richard H. Bernstein said that “it seems clear that it is the lifeguard’s failure to ensure effective and continuous surveillance of the students that was the one most immediate, efficient, and direct cause of death.”

Beals was swimming with about two dozen other students while Harman, who has attention deficit disorder, was on duty. Beals began swimming underwater and never resurfaced. There was no evidence that Beals visibly struggled or that anyone else in the pool saw him doing so.

Surveillance video showed that Harman never once sat in the lifeguard observation stand while Beals was underwater, and students reported that Harman was talking with girls and playing with a football during that time.

Another student discovered Beals’ body at the bottom of the pool about eight minutes after Beals submerged. The student made “as many as three unsuccessful attempts to call for Harman’s attention” and then pulled Beals from the bottom of the pool.

Other students got Harman’s attention. He attempted to revive Beals until more help arrived. Beals was transported to a hospital and was declared dead. An autopsy indicated that the cause of death was “drowning” and that the manner of death was “accidental.”

In the trial court, Harman moved for summary disposition, arguing that his conduct was not “the proximate cause” of Beals’ death. The trial court denied the motion and the Court of Appeals affirmed in a split opinion.

The Court of Appeals majority, Judges Patrick M. Meter and Douglas B. Shapiro, said in an unpublished opinion that “[g]iven the evidence presented, reasonable minds could conclude that Harmon’s [sic] failure to intervene constituted the one most immediate, efficient, and direct cause of Beals’s death.”

In a partial dissent, Judge Peter O’Connell said that the “undisputed facts establish that defendant Harmon was not the one most immediate, efficient, and direct cause of Mr. Beals’s death.”

O’Connell noted that the Court of Appeals “majority recognizes that Harmon’s alleged failure to intervene was part of a chain of events that resulted in Mr. Beals’s death.

“A chain of events, however, cannot logically be the one most direct and immediate cause of a death, and as such cannot be the source of tort liability against a governmental employee.”

Zahra agreed.

“While it is unknown what specifically caused Beals to remain submerged under the water, the record indicates that Beals voluntarily entered the pool and voluntarily dove under the surface of the shallow end into the deep end without reemerging,” Zahra said.

“Although plaintiff alleges that Harman’s inattentiveness prevented him from attempting a timely rescue of Beals, in our view, it is readily apparent that the far more ‘immediate, efficient, and direct cause’ of Beals’s death was that which caused him to remain submerged in the deep end of the pool without resurfacing.”

Zahra said, “Stated simply, that Harman breached his duty does not necessarily entail that his inaction was the most direct cause of Beals’s drowning. Indeed, Harman did not cause Beals’s drowning; he merely failed to observe it happening and to attempt a rescue in response.”

Bernstein, in his dissent, said that Harman argued that “whatever caused the deceased to remain submerged was the proximate cause of his death.

“However, there is no indication that the deceased intentionally stayed at the bottom of the pool or suffered any sort of cataclysmic health event that would have kept him there.”

Bernstein said there was no dispute that Harman was distracted from his duties, was not at his lifeguard station and “ignored several calls for help from the student who found the deceased.

“Pointing to an unknown health event as the one most immediate, efficient, and direct cause of death places on plaintiff the unenviable burden of proving a negative, because there is no indication that any such health event occurred.”
 

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