When a student drowns, is a school criminally liable?
That was the case a Detroit area prosecutor wanted to make after KeAir Swift drowned in November at a Detroit high school pool.
The substitute teacher on duty, Johnathan Sails, 24, has been charged with involuntary manslaughter in the case and will have a pretrial hearing on June 30. Prosecution claims that Sails wasn’t properly certified to teach in an aquatic capacity and left the pool deck to change into swimwear in the locker room when a student told him that Swift was unresponsive in the pool.
A fully clothed assistant principal jumped into the water and pulled Swift out. Prosecutors didn’t file charges against the school.
“The benefit to the victim or the victim’s relatives is, if there’s a criminal conviction, then it pretty much seals the fate of the defendant when they’re sued for civil liability,” said Gregory Anderson, a board-certified defense lawyer specializing in aquatic accidents. “The violation of the criminal statute is going to be decisive and [probably] admissible.”
Swift’s family instigated a civil suit the day after criminal charges were filed naming Sails, the school district and other parties as defendants.
“In these cases, it is more of the gotchas on the certification than it is trying to prove criminal intent, which is absolutely necessary for a manslaughter [conviction],” Anderson said. “There’s a difference between pushing someone in the pool and watching them drown and stepping out into another room under circumstances where you know, or should have known, that there was a dangerous situation — kids in a pool, unattended.”
Schools can limit aquatic liability by having a properly certified lifeguard on the pool deck who’s able to suggest safety adjustments for the facility.