October 1, 2016 Simpson vs. The City of Mason (OH)

Date: April 15, 2010

On Saturday, April 19, 2008, Lindsey Coles took her three children to the Mason Community Center to swim and play in the Community Center’s Leisure Pool. They went to celebrate Bobby’s 4th birthday that day and were going to have a birthday party at Bobby’s grandparents house upon leaving the Community Center.

The 161,400 gallon leisure pool is designed to provide a fun, interactive environment for family activity. The pool features a water playground with zero-depth entry, spray geysers, a lazy river/vortex, a tot slide, and a twisting, three-story water flume slide. The leisure pool also features three lap lanes for program and recreational use, as well as a 5,900-gallon whirlpool.

Lindsey left Bobby in the pool for a couple of minutes as she attended to her other children. Upon returning to the pool, she couldn’t locate him until she observed him floating in the water, face down and not moving in the lap lane area of the pool.

Lifeguard Chris had observed Bobby swimming on his own in the lap lane area of the pool. According to Lifeguard Chris “a patron asked me a question and it took 30 seconds to a minute to answer the question.” None of the lifeguards observed any signs of distress until Bobby was observed floating and not moving by another patron who informed Lifeguard Kirby who then alerted Lifeguard Chris/ Lifeguard Chris entered the water, and upon reaching Bobby, observed him to be limp, blue in the face, and unresponsive.

Lifeguard Chris removed Bobby from the pool and assessed him to be in respiratory and cardiac arrest. Lifeguard Chris attempted rescue breaths, which were unsuccessful and which resulted in “stuff” coming out of the victim’s nose. Dr. Abi, a patron at the pool, then assisted in the performance of CPR with Lifeguard Chris administering rescue breaths while Dr. Abi administered chest compressions.

A 911 call was placed by Lifeguard Maegen at 17:27:56 hrs. Police, Fire & EMS units were dispatched to the scene with an on-scene arrival time at 17:30:34 hrs. Upon reaching Bobby at 17:31:00 hrs., Fire personnel observed CPR in progress by lifeguard personnel and they verified that Bobby was pulseless, apneic, and cyanotic with fixed and dilated pupils. Bobby was immediately carried to the squad where CPR was administered along with the administration of 100% oxygen via a Bag-Valve-Mask Resuscitator. Bobby was hooked up to a heart monitor that showed he was in asystole.

Bobby was transported to Bethesda North Hospital at 17:33:40 hrs. with CPR and ACLS procedures administered en-route. The medic unit arrived at the hospital at 17:46:46 hrs.

Bobby passed away at Cincinnati Children’s Hospital on the morning of April 20, 2008.

At the time of the incident, there had been six (6) lifeguards on duty (Brandi, Chris, Kirby, Matt, Alex, and Meagan) with 30 – 35 swimmers. However, only two (2) lifeguards were in the leisure pool: Chris and Kirby, stationed at the Frog Stand and the Spa Stand. There was no lifeguard stationed at the Lap Lane Stand, the Top of the Slide, or the Bottom of the Slide, nor was there a Walking Guard.

Prior to the arrival of Fire and EMS personnel, positive pressure ventilation was provided without the use of a Bag-Valve-Mask Resuscitator. Oxygen and Suction equipment was not available for use. And, the facility’s automated external defibrillator (AED) was not used.

MASON COMMUNITY CENTER OPERATIONAL PROTOCOLS

The City of Mason publishes an Aquatic Safety Handbook that states that the lifeguard is responsible for preventing any or all accidents from occurring in their area of responsibility and to educate the patrons in safe behaviors. This manual includes the following sections, among others:

Duties and Responsibilities

The primary responsibility of the lifeguard is to ensure the safety of all patrons, at all times! Additional responsibilities includes preventing accidents/incidents by minimizing and eliminating hazardous situations; responding quickly and effectively to all emergency situations, and to attend in-service trainings and meetings.

Maintaining a Standard of Excellence

You are a professional rescuer, and must maintain an excellence of standards at all times.

Victim Recognition

It is important to know what to look for when guarding. A complete scan of your zone MUST be done every 15 – 20 seconds. When sitting in a chair, sit facing the center of your zone looking attentive.

Common signs to watch for, to alert you to a possible emergency situation include:
• Weak swimmer
• Very young swimmers

Anyone displaying one or more of these signs may not be a victim yet, but have potential to become one quickly. These patrons must be watched closely and if their condition changes they should be…removed from the danger area.

Leisure Pool Rules

• Children 9 years of age or younger must be accompanied by an adult in the aquatic center
• Children 3 years of age and younger must be accompanied in the water (within arms’ reach) by a responsible individual
• Use of specific areas of the facility may be restricted due to aquatic programming

Lap Swimming Guidelines

• Lap lanes are for lap swimming only, hanging on lane lines is not permitted
• Lap swim is available to patrons 16 years of age or older

Areas of Responsibility

In an attempt to achieve thorough and effective surveillance, our facility is divided into NINE (9) areas of responsibility, with each area having one (at the minimum) lifeguard assigned to each station. Each guard station will be responsible for a designated pool zone….

Frog Chair: Primarily responsible for the zero-depth area and features. Overlap into the splash down and lap pool for back-up coverage.

Lap Lanes: Primarily responsible for the three lap lanes, and body of water between the lazy river and lap lanes.

Spa Chair: Primarily responsible for the spa, vortex, and area between lap lanes and vortex.

Bottom of Slide: Primarily responsible for splash down area and lap lanes.

Orientation Packet

Frog Chair: Watch lap lanes if bottom guard isn’t up. Keep a close eye on the smaller kids that venture past the red line out into deeper water.

Hot Tub Chair: Watch the lazy river vortex area very carefully…. Keep kids from playing in the lap lanes.

Bottom of the Slide: Watch lap lanes. Keep kids from playing in the lap lanes.

The Leisure Pool has 3 designated lifeguard stands and at least 3 zones of responsibility. Yet, at the time of Bobby’s submersion incident, only 2 lifeguards were at station.

BREACHES IN THE STANDARD OF CARE

The Plaintiff’s Expert identified the following breaches in the standard of care:

The Mason Community Center management and lifeguard personnel failed to prevent this incident; they failed to recognize the incident, as well as its potential; and they failed to appropriately and effectively manage the incident, as well as its potential. The following is a list of failures:

1. Failure to establish appropriate zones of responsibility for lifeguards.

2. Failure to post a sufficient number of lifeguards and failure to strategically position lifeguard personnel to adequately and effectively survey the entire facility.

3. Requiring the lifeguard in the spa stand to survey a zone of responsibility greater than 180 degrees.

4. Failure to post a lifeguard in the Lap Lane Stand.

5. Failure to post a Walking Lifeguard.

6. Failure to identify a 4-year-old child without supervision in the lap lane section of the pool and to intervene prior to his distress.

7. Failure to prevent lifeguards from engaging in activities that intrude upon or distract from their public safety responsibilities.

8. Failure to use a Personal Resuscitation Mask during the administration of positive pressure ventilation.

9. Failure to provide a pediatric size Bag-Valve-Mask Resuscitator for the administration of positive pressure ventilation.

10. Failure to train lifeguard personnel in the use of manual suction equipment and failure to provide manual suction equipment for use during emergency resuscitation operations.

11. Failure to train lifeguard personnel in the use of oxygen administration equipment and failure to provide oxygen administration equipment for use during emergency resuscitation operations.

12. Failure to implement the use of an automated external defibrillator (AED) for response to submersion incidents involving a young child in cardiac arrest.

13. Failure to adequately and effectively train and qualify their lifeguard personnel to adhere to policies and procedures contained within their 2007 Aquatic Staff Handbook.

14. Failure to develop appropriate and effective surveillance protocols for use by lifeguard personnel and to assess the effectiveness of their surveillance practices.

15. Failure to adopt appropriate surveillance protocols commonly accepted and commonly used within the industry to include the 30-second Rule, in combination with the 10/20 Rule, or the 10 x 10 Reaction Rule.

16. Failure to conduct emergency response drills and failure to assess the lifeguards’ capabilities to respond appropriately and effectively to emergency incidents in and around the Leisure Pool.

17. Failure to develop a comprehensive Risk Management Program, to include appropriate and effective training of lifeguard personnel, to identify physical hazards contained within the Leisure Pool and surrounding area, as well as to identify activities that place patrons, especially young children, at heightened risk.

18. Failure to conduct a Threat Assessment, as part of a comprehensive Risk Management Program, and to appropriately and effectively train lifeguard personnel to identify physical hazards contained within the Leisure Pool and surrounding area, as well as to identify activities that place patrons, especially young children, at heightened risk.

19. Failure to enforce rules, regulations, and operational protocols established for this particular facility.

20. Failure to implement appropriate Layers of Protection to safeguard young children in and around the Leisure Pool.

21. Failure to implement an appropriate Incident Command structure for use during emergency incidents, and failure to train lifeguard personnel in the implementation of Incident Action Plans.

22. Failure to implement appropriate Facility-Use Guidelines requiring adult supervision, within arm’s reach, or young children outside the zero-depth and features section of the Leisure Pool.

SUMMARY

As stated previously, the Mason Community Center management and lifeguard personnel failed to prevent this incident; they failed to recognize the incident, as well as its potential; and they failed to appropriately and effectively manage the incident, as well as its potential.

The City of Mason publishes an Aquatic Safety Handbook. Although the handbook appears to be well thought out, the City of Mason obviously failed to implement the standards and protocols stipulated within the handbook.

The staff handbook states that the lifeguard is (A) responsible for preventing any or all accidents from occurring in their area of responsibility and (B) to educate the patrons in safe behaviors. However, on April 19, 2008, the City of Mason only posted two lifeguards in lifeguard stands within the Leisure Pool area. By failing to post additional lifeguards in strategic positions throughout the Leisure Pool, the two posted lifeguards in the stands were required to exceed their normal zones of responsibility making it that much more difficult to provide effective surveillance, to prevent incidents from occurring, and from recognizing signs of distress exhibited by young Bobby prior to his submersion.

Their staff handbook further states that the primary responsibility of the lifeguard is to ensure the safety of all patrons at all times. Additional responsibilities include preventing accidents/incidents by minimizing and eliminating hazardous situations; responding quickly and effectively to all emergency situations, and to attend in-service trainings and meetings. Based on my review of the materials previously identified, the management and lifeguards failed to recognize, minimize and eliminate hazardous situations. They failed to recognize Bobby’s distress in a timely manner, and therefore, they failed to effectively and quickly respond to his submersion. And, based on a review of the personnel records, it appears that all lifeguards were not required to participate in lifeguard in-service training programs, or those that didn’t participate, were not required to make-up this missed training.

The staff handbook states that the lifeguard is a professional rescuer, and must maintain an excellence of standards at all times. However, the lifeguards were not appropriately qualified to quickly and effectively respond to Bobby’s emergency. They were not trained in the implementation of an Incident Command System; appropriate positive pressure ventilation equipment wasn’t used and/or available; and the facility’s automated external defibrillator (AED) wasn’t used. The lifeguards were not trained in the use of oxygen administration equipment, nor was this equipment available, and they were not trained in the use of a manual suction device, nor was this equipment available. And, when one of the lifeguards called 911, she was not aware of the physical address she was calling from, which is evident of the lack of training provided the lifeguards, as well as the lack of emergency operational protocols in place.

The staff handbook states it is important to know what to look for when guarding. A complete scan of your zone MUST be done every 15 – 20 seconds. When sitting in a chair, sit facing the center of your zone looking attentive. However, because the lifeguard in the Spa Stand must exceed a 180 degree zone of responsibility, that lifeguard cannot sit facing the center of their zone. And, because of this increased zone of responsibility, this lifeguard cannot scan his/her zone every 15 – 20 seconds. The witness statements provided by the lifeguards, as well as their internal incident report implies that Bobby’s submersion was of a very short duration. However, the fact that when Bobby was removed from the water he was in respiratory and cardiac arrest, cyanotic, and with fixed and dilated pupils is indicative of a submersion time of several minutes, rather than seconds. Furthermore, Bobby did not respond to Basic Life Support (BLS) and Advanced Cardiac Life Support (ACLS) interventions, which is indicative of a prolonged submersion time – most likely, in excess of 4 minutes.

The staff handbook identifies common signs to watch for, to alert the lifeguard to a possible emergency situation and further identifies the need to look for weak and very young swimmers. Yet, none of the lifeguards was able to recognize the inherent problem of an unaccompanied 4-year-old child progressing from the zero-depth/features section of the Leisure Pool into the lap lane area. The staff handbook further states that anyone displaying one or more of these signs may not be a victim yet, but has the potential to become one quickly and that these patrons must be watched closely. And, if their condition changes they should be…removed from the danger area. Yet, although Lifeguard Chris observed Bobby unaccompanied and in the lap lane area, he failed to intervene and remove Bobby from this danger area.

The staff handbook requires children 9 years of age or younger to be accompanied by an adult and that children 3 years of age and younger must be accompanied in the water (within arm’s reach) by a responsible individual. The handbook also states that lap lanes are for lap swimmers only and that the lap swim is available only to patrons 16 years of age or older. Yet, 4-year-old Bobby was allowed to progress from the zero-depth and features section into the lap lane section without adult supervision.

The Mason Community Center’s aquatic facilities are divided into nine areas of responsibility, with each area having one (at the minimum) lifeguard assigned to each station. According to the staff handbook, a designated guard station is responsible for a designated pool zone. As previously shown, the staff handbook specifies the following zones of responsibility within the Leisure Pool area:

Frog Chair: Primarily responsible for the zero-depth area and features. Overlap into the splash down and lap pool for back-up coverage.

Lap Lanes: Primarily responsible for the three lap lanes, and body of water between the lazy river and lap lanes.

Spa Chair: Primarily responsible for the spa, vortex, and area between lap lanes and vortex.

Bottom of Slide: Primarily responsible for splash down area and lap lanes.

Had these zones been appropriately staffed, and had the lifeguards been vigilant and effective in their surveillance of patrons within their zones, Bobby’s progression from the zero-depth and features area of the pool into the lap lane area of the pool should have been recognized, and appropriate interventions performed by lifeguard personnel to prevent this incident. In fact, had these four (4) positions been adequately staffed, and had the lifeguards adhered to their own surveillance standard of scanning their zone every 15 – 20 seconds, Bobby’s progression into the lap lanes and his distress would have and should have been observed 48 to 64 times by a combination of these four (4) lifeguards within a four (4) minute period.

The City of Mason has an orientation packet and system in place to train their lifeguard personnel. This packet, again, identifies the zones of responsibility within the Leisure Pool as follows:

Frog Chair: Watch lap lanes if bottom guard isn’t up. Keep a close eye on the smaller kids that venture past the red line out into deeper water.

Hot Tub Chair: Watch the lazy river vortex area very carefully…. Keep kids from playing in the lap lanes.

Bottom of the Slide: Watch lap lanes. Keep kids from playing in the lap lanes.

Because no lifeguard was stationed in the Lap Lane stand, and there was no lifeguard stationed at the bottom of the slide, the lifeguards in the Frog Chair and Spa Chair were responsible for surveying the area of the lap lanes. Yet, because of the wall dividing the slide splash down area from the lap lanes obstructs the view of the Frog Chair lifeguard, this guards ability to observe all sections of the lap lanes is restricted and compromised. And, because of this poor design, it is critical that a Lap Lane and/or Bottom of the Slide guard be posted at all times.

Therefore, although their Aquatic Staff Handbook was well thought-out, the City of Mason, through their management and lifeguard personnel, failed to adhere to the protocols established, and they, therefore, failed to prevent this incident; they failed to recognize this incident, as well as its potential; and they failed to effectively manage this incident, as well as its potential.

The City of Mason failed to implement appropriate zones of responsibility; they failed to post a sufficient number of lifeguards; and they failed to strategically position lifeguard personnel throughout the Leisure Pool to ensure the safety of and to provide effective surveillance of the patrons, and specifically, 4-year-old Bobby Simpson.

The City of Mason failed to develop a Risk Management Program and they failed to conduct a comprehensive Threat Assessment to determine the hazards and risks associated with the design and operation of this facility, and they failed to educate their lifeguard personnel regarding the hazards, risks, and dangers associated with young children using the Leisure Pool.

The City of Mason failed to prevent lifeguards from engaging in duties that intruded or distracted them from their public safety duties in that Lifeguard Chris had to answer the questions of a patron which, according to Lifeguard Chris, required his attention for “30 seconds to a minute”, rather than referring this patron to one of the lifeguards on break or in the office.

From these breaches of the Standard of Care, it was clearly foreseeable that a death or serious injury could occur. As a proximate result, Bobby Simpson died from an unrecognized submersion at the Mason Community Center’s Leisure Pool. This incident could have and should have been prevented had appropriately trained, qualified, and vigilant lifeguards been on duty to recognize Bobby’s progression into dangerous deeper water, as well as Bobby’s initial signs of distress, and his submersion.

The City of Mason had a duty to prevent this incident by enforcing their own rules and regulations, by adhering to the protocols established within their own staff handbook, and by posting qualified and vigilant lifeguard personnel throughout the Leisure Pool facility. The City of Mason breached this duty and 4-year-old Bobby Simpson was allowed to progress from the zero-depth/features section of the Leisure Pool into the lap lane section, without intervention by lifeguard personnel, where he deteriorated into respiratory and cardiac arrest until his distress was recognized by an untrained patron, rather than by trained and supposedly, qualified lifeguard personnel. Bobby Simpson died as a result of the City of Mason breaching industry standards, as well as their own published standards.