Lawsuits stemming from several high-profile incidents at aquatics facilities now are making their way through the nation?s court systems.
Perhaps most notable are the lawsuits being brought against the Seneca Lake Park Spray Park in Geneva, N.Y., and the Six Flags Great Escape Lodge and Indoor Waterpark in Queensbury, N.Y.
The Seneca Lake case stems from a 2005 incident in which several thousand guests at the park became ill in an outbreak of cryptosporidium. The class action lawsuit the first of its kind in the aquatics industry totals 2,538 claimants, and claimant?s attorney Bruce Clark of Seattle-based Marler Clark, said he expects a settlement proposal will be forthcoming.
?I believe we have a strong case,? Clark said. ?The alternative to settlement would be a trial in front of the assigned judge in the Court of Claims.?
The Great Escape case may become the industry?s second class-action lawsuit. It involved a norovirus outbreak last year that sickened several hundred people.
Motions to certify the case as a class action lawsuit have been filed.
Some experts say pending outcomes, such cases may establish significant legal precedent, paving the way for other lawsuits.
?There seems to be more aquatics cases going to court, instead of ending in a settlement, and these cases have the potential to create a precedent [if they aren?t settled],? said Judith Sperling, assistant director, risk management training and development for UCLA Recreation in Los Angeles and the legislative chair for the California Park and Recreation Society?s aquatics section. ?And although the precedent would specifically relate to that jurisdiction, the legal precedent could have a wider application in other areas without preexisting case law.?
participating in the city-run Adventure Camp, a program for children with special needs. She drowned in 2002,in the city?s Los Banos del Mar pool.
The Janeway case was heard in the California Supreme Court, which ruled in favor of the family on July 16, 2007. The Court held that written waivers such as the one signed by Katie?s mother do not cover ?gross negligence,? regardless of wording. Following that ruling a settlement was reached last spring for an undisclosed amount.
?[The ruling in the Janeway case] changes the balance in favor of the plaintiff,? said Sperling. ?Now, regardless of the validity of the charges, operators who face a legal challenge may need to look at whether they can afford to defend themselves or whether it would more prudent to settle. In terms of risk management, it could also have a chilling affect as to the variety of program facilities can offer.?
Today there are several ongoing cases involving drownings. The family of 14-year-old Cesar Brandon Urena is awaiting a trial date in the wrongful death lawsuit filed against the Desert Sands Unified School District in La Quinta, Calif. The boy drowned in September 2007 during a physical education class, and the school district is being sued for an unspecified amount.
In October 2007 the district rejected three claims seeking more than $60 million in special damages, medical and funeral costs. Immediately following the drowning, all aquatic activities were suspended and recently the Urena family released a statement requesting school pools be supervised by two or more lifeguards along with a credentialed physical education teacher. The possibility of settling through arbitration had been raised, but according to media reports the case will likely proceed to trial.
Also in the Golden State, the mother of Anyah Raven Glossinger has filed a lawsuit against nine agencies and three individuals, claiming they were responsible for her daughter?s death. The 5-year-girl was autistic and drowned while attending a hydrotherapy session through the Little Bridges program at the United Cerebral Palsy Dennis James Center in Desert Hot Springs, Calif. Emily Wereschagin?s lawsuit follows a similar lawsuit brought by the child?s father.
In New York, the father of Marc Dawson has filed a lawsuit against the YMCA of Long Island and several employees of the Huntington YMCA, including two lifeguards. The high school senior drowned last winter while practicing breath holding in the Huntington, N.Y. pool. Dawson, himself a lifeguard at the facility, was practicing for Navy SEAL training. According to media reports the Dawson family is seeking $10 million in damages.
While no hard and fast data exists, anecdotal evidence suggests the aquatics industry should prepare for more lawsuits like these.
?As the public is becoming more aware of issues such as recreational water illnesses, which they may not have considered in the past, litigation [appears to be] on the rise,? said Shawn DeRosa, JD, president of DeRosa Aquatic Consulting in Boston. ?Operators need to know that the public is watching them and [if an incident occurs], having documentation in place will be key.?