Rivera v. City of Concord, New Hampshire

3-year-old drowns at municipal swimming pool.

Author: Gerald M. Dworkin
Date: August 02, 2012

On Monday, August 17, 2009, Michele Rivera took her 4 children to the City of Concord Keach Park Pool, including her 7-year-old son Nethaniel, 5-year-old daughter Nadia, 3-year-old daughter Amariah, and infant son Maximo. They arrived at the park and ate by the picnic tables before going to the pool. This was the first time Michele had taken her kids to that pool. According to Michele, Amariah had eaten a bologna sandwich, chips, and grape Kool Aid. “Amariah did not have any health problems and was feeling ok prior to the incident.”

Michele had to go out to the parking lot to retrieve a diaper for the baby from her car. Prior to leaving the pool area, she instructed her children to stand by the fence, adjacent to the parking lot and she asked the female lifeguard (Morgan Sargent) at the entrance gate if it was okay for her to go to her car for that purpose.

When Michele returned to the pool area, the three older children went back to the swimming pool. While Michele was changing and feeding the baby she scanned around to check on her children every two to three minutes. Amariah was supposed to have been in the shallow end of the pool with her sister Nadia. According to Michele, Amariah was not wearing a flotation device as these devices were not allowed, even though Amariah had never taken swimming lessons and had no swimming ability. It is important to note that earlier, Michele had seen Nethaniel go over to the deep end a few times by holding onto the wall, while Nadia and Amariah played together in the shallow end. Michele stated that Nadia and Amariah usually stay together all the time.

At some point, the two older children left the swimming pool to go into the showers. When Michele didn’t see Amariah in the pool, she checked the bathroom and called for Amariah. Then, Michele went to the fence, adjacent to the playground, to see if Amariah had gone to play there. Michele then approached Lifeguard Sargent at the entrance gate and told her that Amariah was missing. Michele and Sargent continued speaking for a few minutes.

There were three lifeguards on duty at the pool that day. The lifeguards typically rotate every 30 minutes, and at the time of the incident, Lifeguard Justin Palm, a 2nd-year lifeguard, was stationed at the shallow end. Lifeguard Tim Cofrin, a 1st-year lifeguard, was stationed in the elevated lifeguard chair on the opposite side of the pool from Cofrin. And, Lifeguard Morgan Sargent, a 3rd-year lifeguard, was stationed at the front gate to check I.D.s of patrons coming into the pool.

Each of the 3 lifeguards was currently certified in American Red Cross Lifeguarding/First Aid, American Red Cross CPR/AED for Lifeguards, and City of Concord Responsibilities to Summer Camp Participants. Lifeguard Justin Palm was also certified in the American Heart Association’s CPR for Healthcare Providers, and he was a Nationally-Registered Emergency Medical Technician (EMT). Each of the lifeguards was trained and certified in the use of an Automated External Defibrillator (AED), although this facility was not equipped with one. Each of the lifeguards was trained and certified in the use of a Bag-Valve-Mask (BVM) Resuscitator, although this facility was not equipped with either an adult or pediatric BVM. Lifeguard Palm, as a NREMT, was also trained and certified in the use of adjunct airways, airway management techniques (i.e. suction), and oxygen administration, although this equipment was not available or used during the emergency.

Neither one of the three lifeguards on duty recognized Amariah’s distress and they failed to observe her as she floated motionless at the surface of the water in the 4’ deep section of the pool. Her distress was, however, recognized by several untrained patrons who observed her floating motionless in the water, and who then pulled her from the water before any of the lifeguards even realized there was an emergency. It is important to note that Amariah was 37” tall, and was found in 48” of water. According to the Concord Recreation Department Incident Complaint Form completed by Justin Palm, the child “drowned at 4 foot drop off on opposite side of pool from lifeguard chair.”

Virginia Callahan had been at the pool with her 8 children. According to her police statement, she saw the child floating. “I glanced over and I saw the person floating. The head face down, the back was floating. You could see the back of the head and the back of the body. I just leapt over, I didn’t have to get in. I could reach her. But then I wasn’t strong enough. I held her up and a woman behind me came up and I said, would you take her please.”

Another patron, Jeannie Matei, also observed Amariah floating motionless. According to her statement, “and I saw some, like hair floating. I screamed to the lifeguard and another mother, two other mothers were sitting on the…edge of the pool; they saw it too. As I screamed (another patron) ran over and grabbed the child out of the pool.”

Sylinda Weatherbee, another patron at the pool, had also observed Amariah floating motionless and described it within her recorded statement as, “I saw the little girl floating. And usually when children are just playing around floating, their legs are out and their arms are out. This little girl’s legs were down and her arms were out.” She then jumped up, but another woman who was closer to her, “jumped up, grabbed and pulled the little girl in and then I pulled the little girl out.” Sylinda then ran to alert the lifeguard as her daughter called 911.

As Callahan and Weatherbee pulled Amariah out of the pool, another patron, Victoria Gaudette then called 911.

Lifeguard Cofrin was stationed at the deep end at the time of the incident. According to Cofrin’s statement, he didn’t observe the child in the water, nor did he see the child pulled from the pool. He was first alerted to the incident when he heard someone yelling “Lifeguard”. He told the detective that a woman was carrying a child toward him. According to Cofrin’s recorded statement, “I heard a woman’s voice to my right yell, Lifeguard, Lifeguard. And I turned to look a child being pulled from the water.” Cofrin then climbed down from his stand and sprinted to the scene. Amariah was handed to him at which time he laid the child down on the deck. He assessed the child to be in respiratory and cardiac arrest, and then initiated CPR. “As I was through my first cycle of CPR, Morgan Sargent then appeared with the rescue mask.”

According to the Concord Recreation Department Incident Complaint Form completed by Lifeguard Cofrin, “when a pool patron got my attention by yelling ‘lifeguard, lifeguard. A young child was handed to me by an adult female…. No breathing was detected and no pulse was found.”

When Michele returned to the pool area with her infant son, she saw that someone had been pulled out of the pool. When she approached the scene, she observed Amariah on the pool deck with a lifeguard attending to her. According to Michele, Amariah was cyanotic and she was vomiting.

At the time of the incident, Lifeguard Justin Palm was positioned at the shallow end of the pool. According to Palm, he “saw a woman pull a girl out of the pool and handed to my partner across the pool from me.” He stated, “I was scanning the pool and I happened to look up and I saw this girl being dragged out of the pool.” Palm was instructed to call 911. He then ran into the pool office and told Lifeguard Sargent there was an emergency and to grab his personal resuscitation mask from his bag. Then, he called 911. After calling 911, and before returning to the pool deck, Lifeguard Palm called his supervisor to report the incident. Justin called Karen Billings to speak with David. Justin informed Karen about the incident and that CPR was in progress

It is important to note that Justin Palm was the most qualified of the three lifeguards to administer CPR, as he was a Nationally Registered Emergency Medical Technician. Yet, he was the last of the three lifeguards to attend to Amariah, and after placing the 911 call, he took the time to call his supervisor, rather than immediately respond to render assistance.

Approximately two to three minutes after Michele reported Amariah as missing, Lifeguard Morgan Sargent was alerted to the incident when Lifeguard Justin Palm ran into the pool house. According to Lifeguard Sargent, “I was checking ID’s at the gate when Justin ran in the pool house and yelled she needs help. He told me to grab the pocket mask in his bag. I did so and ran over to where Tim and a little girl were. Tim had already started CPR and Justin was calling 911.”

According to Lifeguard Cofrin, “as I was through my first cycle of CPR, Morgan Sargent then appeared with the rescue mask.” Two person CPR was then administered by Cofrin and Sargent, with Cofrin administering chest compressions, while Sargent administered ventilations.

After calling 911 and his supervisor, Lifeguard Palm then returned to the pool deck to assist with the rescue. According to Palm, he checked Amariah’s pulse at her wrist and “I happened to feel one.” He observed that Amariah was cyanotic and that she had a “really weak and rapid” pulse.

To assess the effectiveness of chest compressions, the rescuer should check the pulse during compressions. To do this, the rescuer should palpate the carotid artery and if compressions are effective, a pulse should be detected with each compressions. When Lifeguard Palm finally responded to the emergency, he assessed Amariah’s radial pulse.

Robert Zeller, a patron at the pool and witness to the incident, was somewhat critical of the Keach Pool Lifeguards because, “somebody should have had eyes on her…they should have seen her.” Zeller was knowledgeable about YMCA survillance protocols as he was himself, a YMCA certified lifeguard. While the lifeguards were performing CPR, Zeller cleared the other patrons out of the pool, as the lifeguards had failed to implement an appropriate Emergency Action Plan (EAP) by clearing everyone else out of the swimming pool during the emergency.

Zeller reported that when he saw a police officer arrive on scene, he advised that officer that a defibrillator might be required. That police officer then retrieved an AED from his police cruiser and handed it to Zeller. According to Zeller, he then offered the AED to one of the lifeguards, but “he (the lifeguard) said he didn’t need the AED.” Zeller then handed the AED back to the police officer.

Police Officer W. Dexter stated that upon his arrival at the scene, two-person CPR was being administered. “When I heard fire arriving on the scene, I told the lifeguard he could stop CPR and I would take over. When the two breaths at the end of the cycle of CPR were given, I scooped up the girl and cradled her to continue CPR while moving to the parking lot where Fire would be arriving.” Once he got to the parking lot, the child vomited again. He then cleared the airway and continued CPR while moving the child to the arriving ambulance.

Police, Fire and EMS were dispatched to the scene at 13:54 hrs, for a report of a child drowning. On-scene arrival and at patient times were documented at 13:57 hrs.

Once the ambulance arrived on scene, MPO Dexter continued chest compressions while Paramedics initiated ACLS protocols. Upon arrival of EMS to the scene, Amariah was assessed to be unresponsive, pulseless and apneic. Skin was pale, cool and moist. Pupils were 3mm and sluggish. Neuro exam found no purposeful movement. Lung sounds are rhonchi bilaterally.

The ambulance departed the scene en-route to the hospital at 14:00 hrs., with documented arrival time at the hospital of 14:06 hrs.

Advanced Cardiac Life Support measures were continued in the hospital until 15:15 hrs., at which time Amariah was pronounced deceased by Dr. Christopher Fore.

According to the Chief Medical Examiner’s Report, the cause of death was drowning.