Sandra Bordelon, et al v. State of Louisiana, et al
Note: This tragic incident occurred on September 26, 2001. After many delays, this case was finally slated for trial during the week of December 14, 2009. However, this case finally settled on December 11, 2009.
Date: 12/11/09
On September 26, 2001, 2-year-old Darren Bordelon, Jr. was allowed to fall into an unfenced pool where he remained underwater for almost twenty minutes before he was discovered. Efforts to resuscitate the child were successful, but he sustained severe traumatic brain injury.
Darren was enrolled in a certified and approved Louisiana family child daycare home. The home was being operated by Ms. Peggy Strassel and was registered with the State of Louisiana, Department of Social Services. The family daycare home program is part of the Child and Adult Care Food Program (CACFP), in which Ms. Strassel was a participant. The State of Louisiana administers the program through the Louisiana Department of Education and requires that private home daycare providers be registered with the State and subject to inspections.
Ms. Strassel was provided with a Providers Handbook developed by the Department of Education. This Handbook states that providers, such as Ms. Strassel, have moved away from being a “mere babysitter” to becoming a trained, professional care giver of children. The Department of Education claims that it trains its providers and teaches them about nutrition and other areas of professional child care.
In Louisiana, a family daycare home is an organized childcare program for children enrolled in the provider’s private home. The state requires that daycare homes that receive any form of government assistance be registered through the Department of Social Services, and that a family daycare home provider must be registered with the State of Louisiana in order to participate in the CACFP. The registration requires an onsite inspection of the daycare home. And, according to the Provider Handbook, the inspection is designed to ensure that family daycare homes meet certain health and safety standards for registration with the Louisiana Department of Social Services. Those standards are derived from the National Fire Protection Association’s (NFPA) Life Safety Code 101. Following the inspection, the Department of Public Safety, Office of the State Fire Marshall, is required to either recommend for registration, or disapprove for registration, the family daycare home to the licensing section of the Department of Social Services.
The Department of Education issued to the daycare home sponsors a memorandum that includes the registry standards that state that if a provider, such as Ms. Strassel, violated the standards the provider would then be subject to severe sanctions. And, the registry standards specifically state that a provider would be ineligible to participate in the program if there was any evidence upon inspection of “imminent threat to the health or safety of the children.”
On three separate occasions prior to the incident, an Inspector for the Fire Marshall’s office inspected a family daycare home registered with the Department of Social Services that had an open and unfenced pool in the backyard area where meals were regularly served to the children at a picnic table near the pool area.
• May 25, 1999 – D. Torrey Drennan inspected the daycare home and noted “no apparent violations at the time of the inspection” and determined the property was “acceptable for certification.” At the time of the inspection, there were two children present.
• August 04, 2000 – Deputy Fire Marshall Brian Mashon inspected the family daycare home and found “no apparent violations at the time of inspection” and found the residence “acceptable for certification”. At the time of the inspection, there were five children present.
• June 24, 2001 – Deputy Fire Marshall Johnny Foto inspected the family daycare home and found no apparent violations, and found the home “acceptable for certification”. At the time of this inspection, there were six children present.
FOUNDATIONS FOR OPINIONS
National Fire Protection Association (NFPA)
The mission of the international nonprofit NFPA, established in 1896, is to reduce the worldwide burden of fire and other hazards on the quality of life by providing and advocating consensus codes and standards, research, training, and education. The world’s leading advocate of fire prevention and an authoritative source on public safety, NFPA develops, publishes, and disseminates more than 300 consensus codes and standards intended to minimize the possibility and effects of fire and other risks.
The NFPA mission is to reduce the worldwide burden of fire and other hazards on the quality of life by developing and advocating consensus codes and standards, research, training, and education.
NFPA is an international nonprofit membership organization founded in 1896 as the National Fire Protection Association. Today, with 81,000 members from more than 100 nations, NFPA is the world’s leading advocate of fire prevention and an authoritative source on public safety.
NFPA’s 300 codes and standards influence every building, process, service, design, and installation in the U.S. as well as many of those used in other countries. Its code-development process is driven by more than 6,000 volunteers from diverse professional backgrounds who serve on 230 technical code- and standard- development committees. Throughout the process, interested parties are encouraged to provide NFPA technical committees with input, and NFPA members vote on proposed and revised codes and standards.
NFPA’s focus on true consensus has helped its code-development process earn accreditation from the American National Standards Institute (ANSI). NFPA codes include some of the world’s most referenced and respected, including:
NFPA 1, Uniform Fire CodeTM
Provides requirements to establish a reasonable level of fire safety and property protection in new and existing buildings.
NFPA 54, National Fuel Gas Code
The safety benchmark for fuel gas installations.
NFPA 70®, National Electrical Code®
The world’s most widely used and accepted code for electrical installations.
NFPA 101®, Life Safety Code®
Establishes minimum requirements for new and existing buildings to protect building occupants from fire, smoke, and toxic fumes.
Public safety education
From life-saving campaigns to training programs to special hazards guides, NFPA educational efforts protect lives and property and are an established resource for fire, electrical, and life safety instruction.
NFPA’s mascot, Sparky the Fire Dog®, hosts his own Web site featuring family safety activities
Risk Watch® is NFPA’s school-based program addresses the leading causes of injury and death among children.
As the sponsor of Fire Prevention Week each October, NFPA works with safety officials to educate the public about fire safety and prevention.
Developed by NFPA and the Centers for Disease Control and Prevention, Remembering When® addresses the leading causes of injuries among older adults.
NFPA produces quality safety education materials including posters, booklets, brochures, and award-winning videos and films.
NFPA’s Risk Watch: Unintentional Injuries
The NFPA Risk Watch: Unintentional Injuries program is the first comprehensive injury prevention curriculum designed for use in the classroom. But, according to the National Fire Protection Association (NFPA), Risk Watch isn’t just for students. “Safety advocates, teachers, parents and caretakers can all benefit from the wealth of knowledge and opportunities Risk Watch offers.”
The following information was taken from the NFPA’s website regarding Risk Watch.
The Risk Watch Philosophy
For children ages 14 and under, the number-one health risk isn’t drugs or disease: it’s injuries. Each year, unintentional injuries kill more than 6,000 kids and permanently disable more than 120,000. In Canada, injuries are the leading cause of death for children over one year of age.
Every time a child is injured or killed by an unintentional injury, everyone suffers – the child, his or her family, classmates and friends, and the entire community. Sadly, the vast majority of these injuries are not random “accidents” – they are predictable and preventable. With education, motivation, and the support of caring adults, NFPA believes that children can learn to be much safer.
What is Risk Watch?
Risk Watch is the first comprehensive injury prevention program available for use in schools. Developed by the National Fire Protection Association (NFPA) with co-funding from the Home Safety Council™ and in collaboration with a panel of respected safety and injury prevention experts, Risk Watch gives children and their families the skills and knowledge they need to create safer homes and communities.
Risk Watch is a school-based curriculum that links teachers with community safety experts and parents. The curriculum is divided into five age-appropriate teaching modules (Pre-K/Kindergarten, Grades 1-2, Grades 3-4, Grades 5-6, and Grades 7-8), each of which addresses the following topics:
• Motor Vehicle Safety
• Fire and Burn Prevention
• Choking, Suffocation and Strangulation Prevention
• Poisoning Prevention
• Falls Prevention
• Firearms Injury Prevention
• Bike and Pedestrian Safety
• Water Safety
Water Safety
Drownings can occur during swimming, boating, hunting and fishing, and even while taking a bath. In 2001, 859 children ages 14 and under drowned and nearly 2,700 required emergency room treatment for unintentional drowning-related injuries.
Approximately 10% of childhood drownings take place in bathtubs; the majority of these happen in the absence of adult supervision. Small children can drown in as little as one inch of water and are therefore at risk of drowning in wading pools, bathtubs, buckets, diaper pails, toilets, spas and hot tubs.
Approximately 70% of deaths associated with boating incidents are from drowning. Most incidents involve people who don’t expect to end up in the water, but fall overboard or end up in the water when the boat sank. Children are particularly susceptible to this problem. In many states, children are required to wear PFDs whenever they are aboard boats.
Make sure your children know how to keep safe around water.
Some Water Safety Examples:
• DO – swim only if there is a lifeguard or if a grown-up gives you permission to swim.
• DO – take swimming lessons.
• DO – follow water safety rules.
• DO – swim with a buddy.
• DO – wade into the water feet first if you’re swimming in a lake, pond or river.
• DO – wear a personal flotation device (PFD) when you are in a boat.
• DO – get out of water right away if you hear thunder or see lightning.
• DO – check with a grown-up before playing or skating on ice.
• DO NOT – stand up in a boat.
• DO NOT – sit or stand on the edge of a boat or let your arms hang over the edge.
• DO NOT – eat candy or chew gum when you are swimming.
• DO NOT – swim if you are tired.
• DO NOT – dive off piers or rocks.
• DO NOT – run around a swimming pool, dock or pier
The NFPA website has a link titled, Safety Information, and contained within that link is a section on Water Safety. Some of the information contained within this section included the following:
Childhood drowning and near-drowning can happen in a matter of seconds. They typically occur when a child is left unattended or during a brief lapse of supervision. Severe and permanent brain damage affects as many as 20 percent of near-drowning victims. Furthermore, this section states: Make sure pools and spas are enclosed on four sides with a fence at least 5 feet high with a self-closing and self-latching gate.
NFPA Safe Community Program
The NFPA Safe Community program was created with the goal of reaching more people with the NFPA nationally acclaimed education programs. To become an NFPA Safe Community, a community must be using at least one of NFPA’s educational programs including, Learn Not to Burn Preschool, Risk Watch and Remembering When.
Each year, a community-wide event, such as a safety fair, must be held that focuses on the NFPA educational program you are using. In order to be awarded NFPA Safety community status, the community must complete and submit an application every year.
NFPA Programs in Louisiana
The NFPA has established a fast-growing network of public educators and local advocates across North American who are effectively implementing Risk Watch in their communities. These dedicated individuals are called NFPA Champions.
In Louisiana, the identified NFPA Champion is Nathan McCallum of the Louisiana State Fire Marshal Office (7919 Independence Blvd. in Baton Rouge, LA 70806 [email protected]).
In other words, the state of Louisiana Fire Marshal’s Office had full knowledge of the NFPA’s Risk Watch Program and its advocacies pertaining to drowning prevention, water safety, and the need to have isolation fencing around swimming pools, especially when young children are present.
Fire Inspections
A target hazard indicates that a greater than average life hazard or complexity of firefighting operations can be expected. Certainly, a child care facility with small children, should be considered a Target Hazard, especially when it has an unprotected/unfenced swimming pool and without other barriers to prevent child access.
Inspection practices are usually considered to be the most important non-firefighting activity performed by firefighters. Through its use, many hazardous conditions are discovered and effective control measures are established before incidents occur. It provides the property owner with a valuable consulting service and is a means by which firefighters can more effectively carry out their responsibility of protecting lives and property.
Certain observations are typically made even before the inspector enters the property. These observations should include the location of fire hydrants, fire alarm boxes, and exposures. Upon entering the building and performing the inspection, the inspector should make additional time to discuss fire protection and life safety issues with the owner.
After permission to inspect the property has been obtained, the inspector should return to the outside of the building and first conduct an inspection of the exterior.
A Fire Department Inspector may not have the legislative authority to enter a private home to conduct an inspection, but many municipalities throughout the United States offer voluntary inspection services for private residences within their community. While it is true that the overwhelming majority of fire prevention efforts are within the business community, this does not preclude the fire service from making an effort to conduct voluntary home inspections.
Voluntary residential inspections can be used to point out (as opposed to require to be corrected) fire and life safety hazards, check and install smoke detectors and carbon monoxide detectors, and instruct the homeowner in proper emergency preparedness techniques.
Typical hazards found in the home are not unlike those presented in the commercial setting. Exiting problems are usually centered around double-cylinder dead bolts on doors and security bars on doors and windows. Electrical problems involve overloaded circuits and extension cords. Storage around furnaces and water heaters is often noted. Combustibles left on top of floor furnaces continue to cause many fires at the start of each heating season. Improperly stored flammables and combustibles in basements and garages are regularly observed. Attention should be given to issues of safety to small children. Accessible electrical outlets without protective caps, unsecured household chemicals, swimming pools without security fences, and electrical appliances in bathrooms are areas that deserve the serious attention of parents.
In this situation, the Fire Inspector had legislative authority to enter the home for a mandatory inspection as required by the Department of Social Services and the Department of Education. A full inspection should have been conducted which would have resulted in the identification of an unfenced swimming pool allowing access by young children.
NFPA 1031 – Standard for Professional Qualifications for Fire Inspector and Plan Examiner
This Standard is published by the National Fire Protection Association and spells out the duties, responsibilities, and qualifications of Fire Inspector I, II, III and Plan Examiner.
The following information has been extracted from this Standard:
Function: Fire Inspector I is responsible for inspecting public, commercial, and residential structures for compliance with applicable fire codes.
Principal Responsibilities: Inspects public, commercial, and residential structures to ensure compliance with jurisdiction, state, and federal fire codes and ordinances. Conducts inspections for fire hazard complaints and underground storage tanks for compliance with jurisdiction, state, and federal regulations. Identifies corrective actions that must be made to bring properties into compliance with applicable fire codes, laws, regulations, and standards. Assists citizens and other agency personnel with code interpretations and information when requested, prepares written documents, and maintains files.
Codes and Standards: Identify the applicable code or standard, given a fire protection, fire prevention, or life safety issue, so that the applicable document, edition, and section are referenced.
Occupancy classification: Identify the occupancy classification of a single-use occupancy, given a description of the occupancy and its use, so that an accurate classification is made according to the applicable codes and standards.
Equipment, process, and operations: Recognize hazardous conditions involving equipment, processes, and operations, given field observations, so that the equipment, processes, or operations are conducted and maintained in accordance with applicable codes and standards and all deficiencies are identified, documented, and reported in accordance with the policies of the jurisdiction.
Emergency Planning: Verify that emergency planning and preparedness measures are in place and have been practiced, given field observations, copes of emergency plans, and records of exercises, so that plans are prepared and exercises have been performed in accordance with applicable codes and standards and all deficiencies are identified, documented, and reported in accordance with the policies of the jurisdiction.
Codes and Standards: Recommend modifications to codes and standards of the jurisdiction, given a fire safety issue, so that the proposed codes and standards are properly written and address the problems, need, or deficiency.
EXPERT OPINIONS
In reviewing all the materials previously identified, this expert found it difficult to understand how life safety issues, recognized known hazards in and around the home, and the safety of young children are placed on the backburner by with little or no priority or concerns by the State of Louisiana’s Department of Social Services, the Department of Education, and the Office of the Fire Marshal.
Mrs. Strassel was a registered Provider with the Department of Social Services in that she ran a family Daycare Home for up to six children. As a Provider, she was also registered with the Department of Education to provide meals to those children in her home. The Department of Social Services, as well as the Department of Education, coordinated through the Office of the Fire Marshal to conduct a pre-approval inspection, as well as an annual inspection. However, for reasons this expert simply can’t understand, the Inspectors, through the Fire Marshal’s Office, were limited to inspecting only the 19 items on the Fire Marshal’s Inspection checklist, and were restricted from inspecting for hazards located outside of the four walls of the home, even though the Fire Marshal’s Policy and Procedure Manual encouraged their Inspectors to determine if other hazards existed and to take immediate action if they did.
Even more confusing is the fact that the State Fire Marshal’s Office is registered with the National Fire Protection Association as a Community Champion and this office is responsible for advocating incident prevention strategies and programs developed by the NFPA, including the Risk Watch program that includes information on Water Safety, Drowning Prevention, and identification of hazards such as unfenced swimming pools, and the dangers they pose to young children.
The Policy and Procedures Manual developed by the Fire Marshal’s Office stressed the need for Inspectors to “recognize hazardous conditions” during their inspections, to verify that “emergency planning and preparedness measures” were in place, and to “recommend modifications to codes and standards of the jurisdiction”. Yet, the Inspectors, by their own admission, as well as by Steve Gosgreve, the Manager of the Inspection Division for the Lousiana State Fire Marshal’s Office, were not encouraged to look for anything outside of the 19 item checklist.
This tragic incident involving the near-drowning and resulting permanent neurological injuries to two-year-old Darren Bordelon, Jr. could have and should have been prevented. The potential for this incident should have been recognized. And, this potential should have been appropriately managed by either closing this Daycare Home, or requiring isolation fencing around the swimming pool to prevent unauthorized access into the swimming pool by Darren or any child within Mrs. Strassel’s care.
The Fire Marshal Inspectors were to inspect the home using the 19-item checklist, but as per the Life Safety Code, a check should have been made to assure that means of egress existed within the home, for every room in the home. Had an Inspector appropriately inspected the means of egress for every room, it would have required him to go outside of the home to the backyard at which time he would have observed an unfenced swimming pool in close proximity to the picnic table in the backyard.
Drowning is the 2nd leading cause of unintentional injury death for children under the age of 14 and is the 3rd leading cause of death from all causes, for children 5 years of age and under. In Louisiana, drowning is the 6th leading cause of unintentional injury death. The Office of the Fire Marshal was or should have been aware of these facts as they are a sponsor of the NFPA Risk Watch program to educate the community about the hazards associated with swimming pools and about water safety in general.
The Inspectors, Torrey and Mashon, as well as their supervisor, Gosgreve each implied they were only legislated to use the 19-item checklist. Yet, their Policy and Procedure Manual clearly identifies the need to broaden the inspection outside of just a checklist and that if hazards are observed, these hazards need to be documented and appropriate action taken.
As a registered Provider, Mrs. Strassel’s home was or should have been under the supervision of a Sponsor registered by the Department of Social Services. Prior to certifying this home as a registered Provider, a thorough inspection should have been required and conducted by the Department of Social Services to be sure the children in this program would not be exposed to hazards, both in and out of the home, including the backyard.
It is, therefore, the opinion of this expert, that the Louisiana Department of Social Services, the Department of Education, and the Office of the State Fire Marshal breached the Standard of Care resulting in the near-drowning and resulting permanent neurological injury of 2-year-old Darren Bordelon, Jr.