Ali Warsame v. Independent School District 283

Incident description of drowning occurring during a Middle School Physical Education swim class.

Author: Gerald M. Dworkin
Date: April 10, 2015

Introduction

Abdullahi Charif was a healthy 12-year-old, 5’ 11”, 7th grader. On February 27, 2014, Abdullahi experienced an unwitnessed fatal submersion in the school’s swimming pool while participating in a 7th grade Physical Education class swimming unit at the St. Louis Park Middle School.

The swimming unit consisted of a 6-session program. Mr. James Bigot, Abdullahi’s Physical Education teacher, characterized Abdullahi as “not a strong swimmer.” However, Abdullahi did not know how to swim, and he demonstrated some anxiety about participating in swim sessions. In fact, on the first day of the swim class, Abdullahi actually hid in the locker room until he was finally brought out to the pool. Abdullahi told Mr. Bigot he could not swim, but Mr. Bigot “encouraged him” to do so . Many of Abdullahi’s classmates confirmed he was a weak and/or non-swimmer and testified that Abdullahi could not swim in the deep end of the pool.

The Minnesota Department of Education requires students to participate in physical education classes, although there is no state or other official requirement that students complete a minimum amount of swimming instruction. St. Louis Park Middle School historically has included a swimming instruction unit in its 7th grade physical education classes.

Mr. Bigot was a licensed Physical Education teacher in the State of Minnesota. He has taught in the St. Louis Park School District for 24 years and teaches Physical Education and Health Education classes. At the time of the incident, Mr. Bigot served as the Department Head of the Physical Education Department.

The St. Louis Park Middle School swimming pool was maintained by Steve Tollefsrud, a certified pool operator (CPO). All public pools in Minnesota are required to have CPOs pursuant to the Minnesota Pool Code. However, Mr. Tollefsrud had never seen the pool code until after this tragic incident. Following Abdullahi’s drowning, the swimming pool was cited by Hennepin County for numerous violations, including inadequate lighting, lack of lifesaving equipment, and not having the appropriate and/or required signage indicating NO LIFEGUARD ON DUTY.

Prior to this tragic incident, the District had no formal policies or procedures in place pertaining to the swimming pool, or swimming as part of Physical Education classes, at the St. Louis Park Middle School. The school, nor the District, required lifeguards to be present during swim classes, nor did they require Physical Education teachers to be certified in Lifeguarding or authorized as Water Safety or Lifeguarding Instructors, through the American Red Cross, or any other nationally-recognized agency. Furthermore, the District did not require their Physical Education teachers to participate in any training whatsoever pertaining to aquatics safety or patron safety and supervision of students participating in swim classes or engaged in swimming activities. According to Superintendent Metz, although lifeguards were required during community use of the District’s swimming pools, the District did not require certified lifeguards during swim classes.

The District provided no guidance to the Physical Education teachers how to conduct swimming classes. Physical Education teachers were not required to have written lesson or curriculum plans and Mr. Bigot stated during his deposition that his teaching plans were contained entirely “in his head.” Mr. Bigot was given total autonomy by the District to conduct swimming classes any way he saw fit. Mr. Bigot never reviewed any standards or guidelines used by other schools, and he acknowledged during his deposition that he was not following any particular educational curriculum. Yet, Mr. Bigot agreed that keeping children safe was his “primary responsibility” and that the surveillance of the children in the water was his “most important responsibility.”

The St. Louis Park Middle School had no established supervisory and/or patron safety guidelines or procedures, and did not require Lifeguard or Water Safety Instructor certification of its teachers. There were no established policies regarding ratio of swimmers to supervisors, nor were there any provisions for spotters or lifeguards during swimming classes as part of the physical education curriculum. There was no elevated lifeguard stand within the pool area. Although the pool depths ranged from 3’ to 9’ there was no lifeline in place separating the deep end from the shallow end of the pool.

There was a posted rule within the pool area requiring proper swim attire in the swimming pool. Yet, on the day of the incident, rather than wearing a bathing suit, Abdullahi was wearing a t-shirt, shorts and underwear. Mr. Bigot conceded during his deposition that Abdullahi’s clothing would indeed create additional “drag” and “resistance” and that the wearing of clothing could make propulsion in the water even more difficult, especially for a weak or non-swimmer like Abdullahi.

Prior to February 27, Mr. Bigot ensured student safety during his swim classes. He prohibited the use of flotation devices in the pool; he did not allow any sort of horseplay; he paired each student with a “buddy”; and he prohibited weak and non-swimmers from the deep end of the pool, confining weak and non-swimmers to the shallow end of the pool. Yet on the day of the incident, the children were not assigned buddies; they were allowed to use lifesaving equipment as flotation equipment; they were allowed to engage in horseplay and rough play; and they had free reign to go anywhere in the swimming pool, regardless of their swimming ability, or lack thereof.

The Incident

On this date, Physical Education Teacher James Bigot was conducting the final session of a Swimming Unit as part of the 7th grade Physical Education curriculum at the St. Louis Park Middle School. The class consisted of 28 students, although on this day only 20 of the 28 students were in the pool. 8 girls were allowed to sit out and were not given any responsibilities to watch the swimmers in the water. In fact, 2 of the 8 girls hadn’t even been required to enter the pool and participate in any way during any one of the 6-session swimming unit.

This was the last day of their swimming unit and Mr. Bigot had informed the students that this last day would be a “free” or “play” day. Instead of instruction, the students were allowed to play in the pool, including playing water basketball, free swim, and other activities, including playing on a floating raft. Abdullahi was observed using a Rescue Tube for buoyancy at times during the session.

The raft was personally owned by Mr. Bigot and was brought to the pool for use during this session. This raft was designed to be towed behind a motorized boat in open water. It was not designed for use in a swimming pool, nor was it designed for persons to climb on it and/or push others off it. Introducing this raft into the pool on this particular day would have required increased supervision, especially due to the activity the children were engaged in that were using it, as well as the blind spot it created, between Mr. Bigot’s seated position on deck, and the water beneath the raft, as well as on the sides of it.

During the class, the raft was reported to have been drifting back and forth between the shallow and deep ends of the pool. Whenever the raft floated in the shallow end of the pool, because it would interfere with the students playing basketball, the raft would be pushed back to the middle or deep end of the pool.

Students on the raft were playing a game similar to “King on the Hill” which entailed male students trying to climb on the floating raft while other students on the raft, attempted to keep the climbing students off the raft by pushing them off or away from the raft. According to Mr. Bigot, “there could have been times where there were 8 to 10 people around the raft.” Several of the students in the class described the activity on the raft at times like as frenzied and that students were pushing people off even while the raft was in the deep end of the pool. Other students stated the activity on and around the raft was at times so rough that they felt it wasn’t safe and did not play on or near it.

Several students testified seeing Abdullahi on or near the raft when it was in the deep end of the pool. Mr. Bigot told the police during his interview that “I saw him next to it (the raft), holding onto it, jumping up, but I did not see him on the raft.” Other students have testified that they saw Abdullahi in the deep end of the pool on the raft, and also saw him being pushed off the raft in the middle of the pool, near the painted depth line.

During this “free play”, Mr. Bigot was seated on a bench on the pool’s deck. The bench was positioned along the wall between the boy’s and girl’s locker rooms, at approximately the midpoint of the pool. Mr. Bigot admits to have been using his iPad as an electronic clipboard while seated on the bench and supervising the activity within the swimming pool and pool area. Yet Kyle Jae Ballenger-Gilmore testified during his deposition that Mr. Bigot sat “on the bench with his computer” and “every now and then he looked up, but he was on this computer doing stuff.” In fact, the St Louis Park Police obtained a warrant to search Mr. Bigot’s electronic devices specifically because several students reported that Mr. Bigot had been using his laptop or iPad during the class period.

During the “free play” session, Mr. Bigot considerably loosened up his enforcement of safety practices. Prior to this day, Mr. Bigot prohibited the students from engaging in any type of horseplay or pushing one another. Also, during this session, he allowed weak and non-swimmers to explore the entire pool, including the deep end. Mr. Bigot stated during his deposition that students were allowed to go “where they felt comfortable.” In fact, Mr. Bigot testified during his deposition that he observed Abdullahi in the deep end of the pool holding onto the pool ledge.

At approximately 08:40 hrs. Mr. Bigot blew 2 whistles to signify that students may exit the pool and pool area for the locker rooms to get dressed. Most of the students, with the exception of approximately 10 boys, exited the pool at that time, while the remaining students had the option of remaining in the pool for another 5 minutes. At 08:45 hrs. Mr. Bigot blew the whistle again at which time the remaining students were required to retrieve various equipment from the pool. And, after removing the equipment from the pool, the students exited the pool for the locker room to get dressed. Mr. Bigot claims that prior to everyone leaving the pool area, Abdullahi Charif was seen in the shallow end of the pool and that he assisted in the retrieval of equipment. However, other kids assisting in the removal of equipment from the pool stated that Abdullahi did not participate in retrieving equipment and was not with them at that time.

As the students were leaving the pool area, Mr. Bigot observed a pair of shoes near the locker room doorway. According to Mr. Bigot, after he scanned the pool and pool area, he entered the locker room to inquire who the shoes belonged to. Mr. Bigot was told the shoes belonged to Abdullahi at which time he exited the locker room and returned to the pool area. As he entered the pool area from the locker room door, he observed Abdullahi on the bottom of the pool in the 9’ deep end section of the pool. Mr. Bigot then radioed that he needed immediate medical assistance in the pool area and then dove into the pool to rescue Abdullahi. After retrieving Abdullahi from the bottom of the pool, Mr. Bigot swam Abdullahi down to the shallow end of the pool, removed him from the water, placed him on the deck, and started CPR.

Physical Education teacher Diane Kohen heard the radio distress call and responded to the swimming pool. Upon arrival, she observed Mr. Bigot performing CPR. Mr. Bigot instructed her to call 911 at which time she immediately grabbed the pool office phone to call 911. She then stayed on the phone with the 911 dispatcher while relaying information and instructions to Mr. Bigot.

Police Liaison Officer, John Herman, heard the radio distress call, exited his office, and responded to the swimming pool area. Officer Herman entered the pool area through the east door and observed Bigot at the far west end of the pool performing CPR on Abdullahi. Officer Herman then took over chest compressions, while Mr. Bigot continued giving positive pressure ventilation via mouth-to-mouth. After approximately 6 sets of compressions and ventilations, Saint Louis Park Fire personnel arrived on scene and took over resuscitation efforts.

At 08:52 hrs. on that date, 911 dispatch received a call for an emergency at the St. Louis Park Middle School. St. Louis Park Police, St. Louis Park Fire Rescue, and HCMC Paramedics were dispatched to the St. Louis Park Middle School for a reported drowning in the school’s swimming pool. Dispatch informed emergency responders that the victim was unresponsive and that CPR was being performed on the victim by bystanders.

Upon arrival, Firefighters inserted an oral airway and continued CPR. Upon arrival of HCMC Paramedics at 08:57 hrs. Advanced Cardiac Life Support measures were initiated. The Paramedics inserted a King airway, established an IV, and after hooking up the patient to the monitor/defibrillator, they determined Abdullahi was in asystole. En-route to Methodist Hospital, while continuing resuscitation efforts, they administered epinephrine x 4 and further assessed their patient.

Upon arrival at the hospital, Abdullahi had no signs of any intact neurologic function, including no gag reflex; he displayed dilated pupils; and he was entirely unresponsive to verbal and/or painful stimuli. The King Airway was then removed and Abdullahi was intubated. After several rounds of CPR with multiple doses of epinephrine and sodium bicarbonate administered, a spontaneous return of heartbeat was achieved after 56 minutes of CPR. However, Abdullahi arrested again and required an additional 5 minutes of CPR before a heartbeat could be restored. After cooling protocol was initiated, Abdullahi was then transferred to St. Paul ICU in critical condition.

Abdullahi was pronounced deceased at 1:02 AM on March 01, 2014. The Office of the Medical Examiner’s examination revealed pulmonary edema and cerebral edema resulting from cardiopulmonary arrest secondary to submersion injury as well as severe hypoxic ischemic brain injury. The cause of death was listed as anoxic encephalopathy due to respiratory impairment due to drowning, while the manner of death was listed as accidental.

Post Incident

Following Abdullahi’s fatal submersion incident, the St. Louis Park Middle School pool was cited by the Hennepin County Health Department for numerous violations, including inadequate lighting, lack of lifesaving equipment, and lack of a NO LIFEGUARD ON DUTY sign.

The school district has since suspended all Swimming Unit programs as part of the St. Louis Park Middle School Physical Education programs.