As an operator of a flat-water beach in Michigan, I’m constantly stunned by the arguments and discussion voiced by many of my peers about the ways to avoid drowning litigation. We must understand that liability occurs after a drowning, which is an event that is quite preventable. With that in mind, here are five common fictions about lifeguards and liability.
FICTION: There aren’t enough lifeguards.
FACT: Many believe there’s a shortage of lifeguards, but personal experience has taught me the contrary. In fact, recently the city of Rochester Hills Parks Department (Mich.) interviewed and tested eight potential lifeguard candidates for only two relatively unadvertised openings. Similar situations seem to be occurring in nearby cities — an overabundance rather than a shortage of guards.
The fact is, guards will always be available as long as there are physical education programs at schools — and private organizations such as the American Red Cross and the YMCA to certify them. As long as there are teenagers looking for summer jobs, we can and will have lifeguards. The problem is not the number of lifeguards, but rather, noncompetitive wages or supporting programs.
FICTION: Liability follows lifeguards.
FACT: Many facility supervisors worry that once their staffs contain lifeguards, they will be liable for anything that happens in the water. This is not necessarily true because a facility can still be held responsible for what happens in unguarded swim areas.
Take the recent court case of Winkfield vs. Kamp Grounds of America (KOA) in Port Huron, Mich. A $2.1 million judgment was brought against an unguarded KOA pool operation after a drowning. This KOA was not legally required to provide guards and had warning signs posted.
The significant facts surrounding the submersion fatality were no supervision, very cloudy water and electrical grounding failure that may have contributed to the high award, but not likely the death of the child. Hiring guards does not absolve a facility of responsibility in an incident, but instead serves as a safeguard to prevent the incident from developing in the first place.
FICTION: Signage prevents incidents.
FACT: As seen in the case of the Winkfield death, the warning signs provided little or no value in limiting the settlement amount. Considering that this horrible accident could easily have been prevented by a trained and equipped lifeguard, we can only conclude that signs, in fact, do not rescue people. The guard would have likely seen the child on the surface or would have closed the pool until the water met the state code for water clarity.
Signs also don’t necessarily insulate facilities from liability, including those that warn people that lifeguards aren’t on duty. In the case of David Burke vs. KOA involving a 2003 drowning, a 23-year-old man attempted to swim across a small pond. A settlement for the plaintiff was awarded after the judge considered statistics showing a very poor safety record and the lack of required safety equipment. This settlement was reached despite the fact that signs were in place stating that no lifeguards were on duty.
FICTION: Lifeguards don’t save lives.
FACT: Property owners don’t believe that lifeguards reduce the occurrence of drownings. Unguarded drowning fatalities in Michigan occur 11 to 12 times more often than at guarded facilities.
The other overlooked fact that can help drive home this point is that submersion rescues (near-drownings) in which a person is successfully resuscitated, occur at a much higher frequency at a guarded facility based on the 20-year Michigan drowning database.
The submersion fatality of Mohammad Sobiad Fida on July 4, 2002, in Ingham County, Mich., occurred shortly after the county’s board of commissioners removed lifeguard services from a local lake. Most would agree that a trained and equipped lifeguard service would have easily intervened and rescued the struggling swimmer. As a direct result of this incident, Ingham County may incur future costs due to litigation fees and settlement awards.
FICTION: Guard service is expensive.
FACT: Many property owners believe the costs of maintaining a lifeguard service outweigh the benefits. Yet in a three-month summer season, the actual cost of running a lifeguard service ranges between $50,000 and $70,000. Instead of undertaking a summer lifeguard service, the KOA chose to spend 42 times that amount in reaching a settlement.
Ingham County officials, however, decided that the chance of saving a human life was worth more than the $30,000 budget they allotted for their lifeguard fund. By the end of summer 2002, they had reinstated their lifeguard service.
