Nicole Queen v. Columbia Sussex Corporation & Shawn Carter

Author: Gerald M. Dworkin
Date: October 08, 2012


On March 29, 2008, Shawn Carter arrived at the Renaissance Hotel and checked in at 5:23 PM. Her party consisted of her (Shawn Carter) and 4 children. One of the children was 5-year-old Da’Quan L. Carter, who, along with the rest of the group, was there for a birthday party. After going to her room, she was then joined by Aquil Thomas, Chanel Emmens and Shannon Gibson, along with their children. The group departed Shawn’s room and at approximately 6:30 PM, the group arrived at the indoor pool, located on the first floor of the hotel off the main lobby. No manager or employee of the hotel was advised by Shawn Carter, or anyone in her group, that they were going to have a birthday party at the hotel.

While Da’Quan and the other children were in and around the pool and hot tub, they were being supervised by Shawn Carter and several other adults including Chanel Emmens, Aquil Thomas, and Shannon Gibson.

Ann Marie Scott, a hotel guest from New Jersey, along with her husband, William, was in the pool area along with her 3 children. While in the pool area, she observed a group of 3 or 4 adults and approximately 13 children. Ann Marie and her husband were in the hot tub, which is adjacent to the swimming pool and located near the shallow end of the pool, when her 12-year-old daughter, Jessica, informed her there was a child on the pool bottom.

Ann Marie immediately exited the hot tub and walked toward the deep end of the pool where she observed Da’Quan submerged “all the way in the farthest corner in the deep end to the opposite side, to the left side, across from the tables.” She then immediately dove into the pool and grabbed Da’Quan, brought him to the surface and then placed him on the pool deck. She yelled to her husband to get help and yelled to the adults, “Is this your kid?” She yelled it “four times before there was any reaction from them.” Shawn Carter and Chanel Emmens then went to Da’Quan and began to administer CPR.

Upon observing his wife entering the pool and her returning to the surface with Da’Quan in her arms, William Scott ran into the hotel lobby and shouted for help. Trevell Williams, the Manager on Duty, immediately responded to the pool area after being notified of the emergency by Jenene Dempsey from the front desk. Upon entering the pool, she saw Shawn Carter and Chanel Emmens start to administer CPR. She immediately contacted the front desk via radio and instructed them to call 911. She also contacted 911 via her cell phone. The 911 call was received and Fire, EMS, and Police units were dispatched to the scene at 7:04 PM.

David Cantor, the hotel’s Food and Beverage Director, responded to the scene and arrived at the pool area around the same time Ms. Carter and the other adults responded. According to Ann Marie Scott, “they (Shawn Carter and Chanel Emmens) came around to the side of the pool roughly at the same time people (Trevel Williams and David Cantor) from the lobby came in.”

When David Cantor arrived, he stated, “I know CPR. Everyone move” at which time he started to administer CPR. He then began to administer chest compressions while telling Ann Marie Scott and others to tilt Da’Quan’s head and pinch the child’s nose and to administer breaths via mouth-to-mouth rescue breathing. CPR was continued for several minutes until the police arrived and took over administering CPR until the EMS personnel arrived on scene and took over. According to the Police Report, they (Police Officers) arrived a short time before Fire EMS arrived.

Upon arrival of Tinicum Township Police Officers, CPR was being administered to Da’Quan by David Cantor at which point officers Barrowclough and Marino took over CPR with Officer Barrowclough administering chest compressions and Officer Marino performing positive pressure ventilation with the use of a personal resuscitation mask. Upon arrival of Chester Crozer Medic Unit 100-D, advanced cardiac life support (ACLS) was administered. Upon arrival of Tinicum Township Ambulance, Da’Quan was packaged, and then transported to Taylor Hospital in Ridley Park with Advanced Cardiac Life Support administered en-route.

Upon arrival at Taylor Hospital E.R. at 7:27 PM, resuscitative efforts were continued under the direction of Dr. Michael Dumin. However, resuscitation efforts were terminated and Da’Quan was pronounced deceased at 7:45 PM.

The Essington Fire Company/Pennsylvania EMS Report documents the call/response times as follows:

7:04 PM Dispatch
7:07 PM En-route to Scene
7:10 PM On-Scene
7:22 PM En-route to Hospital
7:27 PM Arrive Hospital

The EMS Incident Report by Crozer Chester (Medic 100D) confirms that on arrival, “bystanders and PD attempting to resuscitate a small child next to the pool. Child was wet and had vomitus next to him.” The incident also confirms that Advanced Cardiac Life Support (ACLS) protocols were initiated and maintained.

Upon arrival at Taylor Hospital at 7:27 PM, ACLS was continued until 7:45 PM at which time death was pronounced.

Upon further investigation by the Tinicum Township Police Department, according to their Incident Report, “nothing appeared to be unusual or suspicious. The depth of the pool at the deep end has markings which indicate that the depth is 5 feet deep. There is no lifeguard at the pool.”

Photographs taken by Police Department personnel showed signs indicating the hours of operation for the pool were 6:00 AM or 7:00 AM to 10:00 PM and that access into the pool area is through a locked door that requires a room key card to unlock. The door then swings outward, away from the pool area.

A Pool Area Use sign states, “For your safety, it is required that you observe the following….” This sign indicates there is NO LIFEGUARD ON DUTY. It prohibits running, diving, or unnecessary noises, and that children under age 12 must be accompanied by a parent.

The pool area has a house phone mounted on a wall that is illuminated by a light installed directly above the phone.

Depth markers are located on the deck of the pool clearly marking the water depth in “feet”. Depth markers are also located on the vertical wall inside of the pool at the same locations as those marked on the pool deck.

There is one set of steps leading into the pool in the shallow end with a railing, and there are two ladders in the 5’ section of the pool on opposite sides of the pool. The 3’ and 4’ depth markers located on the pool deck has NO DIVING tile markers adjacent to them.

A shepherd’s crook is mounted horizontally on a wall. Two ring buoys are mounted on the opposite walls on each side of the pool.

It is important to note that Ann Marie Scott stated that the children “were in the shallow end of the pool and also in the hot tub or Jacuzzi which was near the shallow end of the pool. They were kind of running back and forth.” She counted approximately 13 kids in the pool and she observed one man and two women “sitting on the side of the pool where there was a couple of tables and chairs along the one side of the pool. So they were sitting at the side of the table.” She also implied the adults were not properly supervising the children in that “I had noticed the whole time that these kids were running like crazy. I didn’t once hear an adult say stop running, slow down, stop jumping.”

Chapter 18 Pennsylvania Code
Public Swimming and Bathing Places

The Pennsylvania Code defines the following:

• Bather load – the total number of bathers in a recreational swimming establishment.

• Certified lifeguard – an individual who has a current certificate in lifeguarding, issued by a lifeguard certifying authority, as recognized by the Department of Health.

• Maximum bather load – the maximum number of bathers that the recreational swimming establishment is designed to accommodate, as defined in the plans and specifications submitted as part of the permit application using the guidelines set forth in the Department’s publication, Public Bathing Place Manual.

• Public bathing place – an outdoor or indoor place used for amateur, professional or recreative swimming or bathing whether or not a fee is charged for admission or for the use of the place, exclusive of a bathing place at a private, single-family residence….

• Recreational swimming establishment – a facility that is designed, constructed or designated for use by individuals for the primary purpose of swimming, if a fee is charged for admission.

• Rope and float line – a continuous line, at least ¼ inch in diameter, that is supported by buoys and attached to opposite sides of a swimming pool.

• Swimming pool – a body of water of a size in relation to the bathing load that the quality and quantity of the water confined must be mechanically controlled for the purpose of purification and contained in an impervious structure.

The Pennsylvania Code requires “a capable manager or caretaker shall be in charge of public bathing places and shall be responsible for the proper maintenance and use of the public bathing place…. “ Furthermore, “the manager or caretaker shall be responsible for maintaining the public bathing place continually in good repair and in a clean, sanitary and healthful manner so that it does not constitute a menace to public health or promote immorality and is not a public nuisance.” One mechanism by which to accomplish this requires that the “pool shall be provided with a recirculation and filtration system.”

The code also requires that the “water in the pool shall be sufficiently clear to permit a black disc, 6 inches in diameter on a white field, when placed on the bottom of the pol at the deepest point, to be clearly visible from the runway or deck around the deep area of the pool.”

The Pennsylvania Code does require lifeguards at recreational swimming establishments, but does not require lifeguards for public bathing places. The code specifically states that “a recreational swimming establishment shall have on duty an adequate number of certified lifeguards to protect the safety of users.”

The code does require there be minimum lifesaving and first aid equipment be provided and readily available for emergency use at each public bathing place, consisting of reaching devices, flotation devices, and a first aid kit.

It is important to note that the swimming pool at the Renaissance Hotel is considered to be a Public Bathing Place and that lifeguards are not required for this type of facility. Furthermore, the hotel pool met all the requirements of Chapter 18: Public Swimming and Bathing Places of The Pennsylvania Code.

Based on my review of the circumstances involving this incident, my years of experience in the field of aquatics safety and swimming pool operations, and my review of Chapter 18: Public Swimming and Bathing Places of The Pennsylvania Code, the Renaissance Hotel swimming pool was in full compliance.

It should also be noted that based on my review of the Public Bathing Law (35 P.S. subsection 672) the Renaissance Hotel swimming pool was in full compliance.

The Public Bathing Law defines a public bathing place as “any place open to the public for amateur and professional swimming or recreative bathing, whether or not a fee is charged for admission….” Swimming pool is defined as “a place in the open or enclosed in any structure or building for the purpose of admitting two or more persons to bathe or swim together.” And a recreational swimming establishment is defined as “a facility that is designed, constructed and/or designated for use by individuals for the primary purpose of swimming, where a fee is charged for admission.”

The Public Bathing Law requires “the water shall be maintained at all times clean and sanitary.” This law only requires certified lifeguards at recreational swimming establishments when the recreational swimming establishment is open to the public and that “an adequate number of certified lifeguards shall be on duty.” The Renaissance Hotel pool, by definition, is considered a public bathing place, and not a recreational swimming establishment. Therefore, lifeguards are not required, and the Renaissance Hotel swimming pool was in full compliance with the Public Bathing Law.

American National Standard for
Public Swimming Pools

The American National Standard for Public Swimming Pools is a voluntary standard “to provide recommended minimum guidelines for the design, equipment, operation, and installation of new construction and renovation of public pools for builders, installers, and pool operators. It also is intended to assist government and other regulatory bodies in the development, promulgation, and enforcement of public pool criteria.” The standard further states that “pools covered by this standard shall be constructed and operated to comply with all local, state, and federal codes governing safety and environmental regulations.”

This standard covers public swimming pools “to be used for bathing and operated by an owner, licensee, or concessionaire, regardless of whether a fee is charged for use.” The standard defines a Class C pool as “pools intended for use for apartments, condominiums, property owners associations, multi-family owned pools, etc. and are covered within the scope of this standard. Pools operated solely for and in conjunction with lodgings such as hotels and motels are also covered within the scope of this standard.”

This standard advocates the need to maintain water clarity and stipulates: “Water clarity shall be maintained. When standing at the pool’s edge at the deep end, the main drains at the deepest portion of the pool floor shall be clearly visible and sharply defined.”

With regard to lighting, the standard advocates that “during periods of operation sufficient illumination shall be provided to allow visibility of all portions of the pools, including the bottom. Illumination shall be provided by natural and/or artificial means.”

The standard advocates a rope and float line only under certain conditions. “In pools where the water depth exceeds 6 feet – 4 inches a wide contrasting color band extending from the waterline tile, down the wall, across the floor, and up the opposing wall to the waterline shall be located at 5 feet of water depth. A rope and float line shall be located 1 foot to 2 feet on the shallow side of that band.”

The standard also advocates that the water depths be clearly marked. “Depth of water in feet shall be plainly and conspicuously marked on the vertical pool wall at or above the waterline.”

The standard does not require lifeguards, but rather stipulates that “when lifeguards are required, chairs and stations shall be positioned to allow guards to meet the 10/20 rule.” And, it advocates that when no lifeguard is on duty, “a suitable sign to that effect shall be conspicuously posted.”

Regardless of whether or not lifeguards are present and/or required, the standard advocates that pools “shall have lifesaving equipment conspicuously and conveniently on hand at all times.” The stipulated equipment includes a shepherd’s crook, a ring buoy with line, and first aid equipment. The standard also advocates that pools “shall have a telephone with posted names and phone numbers of the nearest available police, fire, emergency access, and/or rescue unit, and/or 911.”

Based on my review of the circumstances involving this incident, and my review of the American National Standard for Public Swimming Pools, the Renaissance Hotel swimming pool was in full compliance with this standard.

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