October 1, 2016 Taylor v. Wisco Hotel Group
Date: January 18, 2010
On December 15, 2007, Stephanie Moss along with her 7-month-old daughter and 5-year-old stepchild, Farress Taylor, Jr., attended a birthday party for Stephanie’s nephew Jaylen.
Stephanie was with the birthday group and was talking to her sister, Brynn Moss, while Farress and Jaylen were playing on the water slide. Stephanie continually looked over at Farress and Jaylen to ensure their whereabouts.
A short time later, when Stephanie looked for Farress, she saw Farress being pulled from the pool by two other children, Dakta John and Krystal John. Stephanie ran to him and observed foam coming from his mouth and nose, while an unknown bystander started to perform CPR. Stephanie grabbed the emergency phone located a few feet from them.
Upon picking up the phone and attempting communication several times, she realized it did not work. She then dropped the phone and frantically ran with her 7-month-old child to the front desk in a plea for help.
Upon arriving at the front desk, despite Stephanie’s screaming and pleas for assistance, the front desk clerk, Jennifer Chapman, told Stephanie “you will have to wait until I finish with this customer.” It was not until Jennifer finished the transaction that she followed Stephanie back to the pool area. 911 still had not been called.
Bryne used her cell phone to call Bridgett Moss, a medical doctor, who was with the birthday party group, but still in her room. She immediately ran to the pool and undertook attempts at resuscitating the child. Meanwhile, another employee, David Boomslitter, walked over to the crowd and asked Jennifer what happened at which time he was told to call 911.
Milwaukee Fire Department Engine 14, Ladder 8, and Med 15 were dispatched for a possible drowning at the Holiday Inn Express at 19:33 hrs. Upon arrival to the hotel, they observed Farress Taylor, Jr. at the side of the pool where Bridgett Moss was performing CPR.
Milwaukee Fire Rescue personnel initiated ALS protocols which included intubation, I.V. line, and administered medications. Farress was in asystole and remained in asystole throughout transport to Saint Luke’s South Shore Hospital. It was noted that Farress had good breath sounds bilaterally, good end tidal CO2, and also had palpable pulses during the administration of CPR.
Upon arrival at Saint Luke’s South Shore Hospital, the emergency trauma team took over and administered full ACLS protocols, including the administration of CPR, as well as three doses of Atropine and seven doses of Epinephrine. However, Farress was pronounced dead at 21:05 hrs.
Investigation conducted by Detective McClendon determined that Jennifer Chapman had received a call from the emergency phone in the pool area, but because she did not hear anyone on the line, she assumed it was children playing with the phone. She did not check the surveillance monitor, nor did she dispatch hotel personnel to the pool area to investigate the call.
The investigation also showed that the video surveillance camera was located on the south end corner of the pool. However, the submersion incident occurred on the southwest corner of the pool, which is the deepest and most hazardous area, and was not in the coverage area of the surveillance camera. The surveillance video does show Farress entering the pool at 19:29 hrs. Farress was pulled from the water at approximately 19:31 hrs. Although the Milwaukee Fire Department incident report shows the dispatch and response times, it does not show the time of arrival at the scene, the time of arrival at the patient, the departure time to the hospital, or the arrival time at the hospital. It does, however, show a time CPR started of 19:40 hrs. and the assumption is that this is the time Fire Rescue personnel arrived and began basic life support care on Farress. Furthermore, the incident report also shows that advanced life support measures were administered beginning at 19:50 hrs. with I.V. administration of normal saline, advanced airway procedures administered at 20:00 hrs. and again at 20:20 hrs., and drug administration (Epinephrine) beginning at 20:00 hrs. with 5 additional dosages administered until 20:23 hrs.
The medical records from Aurora Health Care indicate that drug administration was initiated at 20:40 hrs. with continued resuscitative efforts until 21:05 hrs. at which time all resuscitation efforts were terminated.
The following resources were used to identify the Standard of Care.
CHAPTER HFS 172
SAFETY, MAINTENANCE AND OPERATION OF PUBLIC SWIMMING POOLS
Published by the Wisconsin Department of Health and Family Services
HFS 172.04 Definitions
Activity Pool: a water attraction with a depth greater than 24 inches designed primarily for play activity that uses constructed features and devices including pad walks, flotation devices and similar attractions.
Attendant: a person trained to operate a pool, including slides and other appurtenances, and control patrons in a safe and orderly manner.
Certified water attraction operator: an operator who is certified by successful completion of at least one of the following training courses:
a. The National Swimming Pool Foundation certified pool operator course;
b. The National Recreation and Park Association aquatic facility operator course
Children’s slide: a slide that has a maximum height of 4 feet as measured vertically from the slide entrance to slide terminus, and located in less than 24 inches of water.
Entry access point: the area in which a patron enters a water attraction.
Lifeguard and attendant staffing plan: a written description on how lifeguards and attendants will be used at pools.
Operator: the owner of a pool or the person responsible to the owner for the operation of a pool, including the mechanical systems operations of the pool.
Owner: the state, a political subdivision of the state, corporation, company, association, firm, partnership or individual owning or controlling any pool.
Patron: a user of a pool.
Responsible supervisor: a person designated by the operator to maintain compliance with regulations governing safety and sanitation of a pool or water attraction, a pool slide, or a waterslide.
Water attraction: a public facility with design and operational features that provide patron recreational activity other than conventional swimming and involves partial or total immersion of the body.
HFS 172.18 Water testing frequency
Water shall be tested for pH and disinfectant residual daily before the pool is open to the public or before the pool is in use, and at least one other time during the day’s peak patron load.
HFS 172.20 Operator
Each pool shall be under the supervision of at least one operator…. Each operator shall be responsible for pool operation and maintenance including equipment shutdown, backwashing, daily maintenance and vacuuming, and maintenance of water quality.
Each water attraction and water attraction complex shall be staffed by at least one certified water attraction operator by January 1, 2009.
HFS 172.21 Responsible supervisor
Each pool shall be under the supervision of at least one responsible supervisor at all times when the pool is in use or is open to the public. The responsible supervisor shall be on the premises or available via a phone number posted by the emergency phone to respond to an unsafe or unsanitary condition at any time the pool is open for use. The responsible supervisor shall maintain order, ensure that safety equipment is in place, and enforce pool use regulations governing safety, sanitation and water testing.
HFS 172.22 Lifeguards and attendants
The owner or operator of a pool…and the owner or operator of a water attraction or water attraction complex shall submit a written, proposed lifeguard and attendant staffing plan to the department or the department’s agent for approval.
A pool that is not required to have a lifeguard shall post sign that states “No Lifeguard on Duty”.
Attendants may staff water attractions, waterslides, or pool slides to assist patrons. Attendants may not be use din place of lifeguards.
HFS 172.26 Rescue equipment
All rescue equipment shall be maintained in good repair. Rescue equipment shall be mounted in a conspicuous place and shall be readily accessible.
A working telephone shall be available within the enclosed area around a pool. A current list of emergency numbers and the facility’s location shall be attached to or posted near the telephone.
HFS 172.27 First aid supplies
A first aid kit of a sort approved by the department and 2 durable blankets in good condition shall be available at each pool area. The first aid kit shall contain (among other things) a resuscitation pocket face mask.
HFS 172.32 Monthly reports and records
The pool operator or responsible supervisor shall complete monthly reports of daily pool operation on forms provided by the department or agent.
DUTY OF HOTEL INNKEEPER: PROVIDING SECURITY
COPYRIGHT 1994, REGENTS, UNIVERSITY OF WISCONSIN
8050. THE WISCONSIN CIVIL JURY INSTRUCTIONS
A hotel innkeeper, who holds an establishment open to the public, has a duty to provide reasonable security for the person and property of guests as well as the normal and usual comforts customarily afforded. In providing reasonable security, it is the duty of a hotel innkeeper to exercise ordinary care to provide adequate protection for guests and their property from assaultive and other types of criminal activity.
A hotel innkeeper is not a guarantor of safety for guests and their property but is required to provide security commensurate with the facts and circumstances that are or should be apparent to the ordinarily prudent person, depending on the particular circumstances of the location of the hotel (motel). On the other hand, there is no duty on the part of a hotel innkeeper to guard against abnormal or unusual events or things which with reasonable care, skill, and foresight could not have been anticipated, discovered, or prevented; his or her duty is to protect only against those risks which the innkeeper could have discovered in the exercise of ordinary care.
In some situations, greater than normal or usual security may be required, such as a security force, closed circuit television surveillance, deadbolt and chain locks on individual rooms or security doors on hotel entrance ways located away from the lobby. In other situations, less security may be adequate. In determining whether ordinary care was exercised in providing security, you may take into consideration industry standards, the community crime rate, the extent of assaultive or criminal activity in the area or in similar business enterprises, the presence of suspicious persons, the particular security problems posed by the hotel’s design, and any other facts and circumstances shown by the evidence bearing on the subject.
ANSI/NSPI-1 2003
AMERICAN NATIONAL STANDARD FOR PUBLIC SWIMMING POOLS
Class C pools: Pools intended for use for apartments, condominiums, property owners, associations, multi-family owned pools, etc. Pools operated solely for and in conjunction with lodgings such as hotels and motels are alco covered within the scope of this standard.
18.5.1 Lifesaving Equipment shall be conspicuously and conveniently on hand at all times.
18.5.2 Telephone: Public 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.
22.1: Certified operator. Public swimming pools shall be maintained under the supervision and direction of a properly trained operator who shall be responsible for the sanitation, safety, and proper maintenance of the pool, and all physical and mechanical equipment.
22.2.1: A CPR-certified person shall be on the premises when the pool is in use.
22.2.3: Within the immediate vicinity of the pool, a sign shall be posted that informs pool users of the location of the nearest telephone and that emergency phone numbers are posted at that location.
22.2.6 Managers of public pools shall maintain an emergency action plan…and other emergency plans and safety programs. These shall be practiced during in-service training and drills.
ANSI/IAF-9
AMERICAN NATIONAL STANDARD FOR AQUATIC RECREATION FACILITIES
Scope: Pools covered by this standard are designed for free-form aquatic play and recreation. This standard provides specifications for the design, equipment, operation, signs, installation, sanitation, and rehabilitation of public pools for aquatic play.
Class D: Any pool operated for medical treatment, therapy, exercise, lap swimming, recreational play, and other special purposes, including, but not limited to, ware or surf action pools, activity pools, splasher pools, kiddie pools, and play areas. Class D-2 activity pools are those pools designed for casual water play ranging from simple splashing activity to the use of attractions placed in the pool for recreation.
4.12.4 The slope of the floor from the point of the first slope change to the deep end shall not exceed 1 foot in 3 feet (1:3) except where function of the pool or attraction dictates a greater slope.
4.14.2.1 Class D-2 activity pools having a bather-accessible depth greater than 4.5 feet shall have a distinctive floor marking at the 4.5 foot water depth.
20.1.4.1 Adult supervision of children. Management shall post signs that inform patrons of their responsibility of adult supervision of children.
20.2 Operator and operator training. The sanitation, safety, and proper maintenance of the pool, and all physical and mechanical equipment, shall be under the supervision of a properly trained operator. The operator shall be certified in accordance with state and local codes or the Professional Pool and Spa Operator program or a comparable certifying organization.
20.3.1 Staff shall be trained to assist or rescue persons in conditions appropriate to the responsibilities of their assigned station.
20.4.4.4 Equipment to reduce exposure to transmission of disease shall be available for use in breathing assistance or CPR.
20.5.1 Equipment shall be conspicuously displayed and conveniently on hand at all times.
20.5.2 The facility shall post a notice of the location of a telephone for bathers to make emergency calls. This telephone shall be located in a place that can be readily accessed by bathers.
20.5.3 If lifeguards are not on duty, emergency information shall be posted at an accessible telephone location and include the following information:
• How to notify the appropriate EMS personnel
• Name and telephone number of nearest available police, fire, and emergency access and/or rescue unit
• Name and telephone number of nearest EMS/ambulance service
• Name and telephone number of available pool management
• Location of first aid and life saving equipment
20.6.1 Facility managers shall maintain an emergency action plan (EAP). Staff shall be trained by the facility to activate the Emergency Action Plan including notification of the nearest authorities that provide emergency assistance and rescue and medical response services.
The following were identified by the Plaintiff’s Expert as BREACHES IN THE STANDARD OF CARE
1. Failure to install an emergency alert alarm or “panic button” in the swimming pool area in order to alert front desk personnel of an emergency within the swimming pool.
2. Failure to develop Emergency Action Plans (EAPs) and to rehearse these plans for emergency incidents occurring within the swimming pool areas and swimming pools.
3. Failure to develop Emergency Response Plans (ERPs) and to rehearse these plans for emergency incidents occurring within the swimming pool areas and swimming pools.
4. Failure to provide CPR training for hotel employees.
5. Failure to have CPR trained employees present during the hours the swimming pools are open to guests.
6. Failure to have emergency resuscitation equipment available for use in the response to respiratory and cardiac emergencies.
7. Failure to have an Automated External Defibrillator (AED) available for use in the response to cardiac emergencies.
8. Failure to prevent this incident by:
a. informing/educating guests of the need to constantly and vigilantly supervise young children;
b. informing/educating guests of the inherent hazards and risks associated with this facility; and
c. how to effectively respond to an emergency in the swimming pool area.
9. Failure to recognize this incident, or its potential, since there was no lifeguard or attendant, or the surveillance camera system was ineffective and not used by front desk employees.
10. Failure to effectively manage this incident:
a. The emergency telephone was broken;
b. There was no one on staff trained in CPR;
c. There were no emergency resuscitation equipment or protocols; and
d. There was no AED available.
11. Failure to conduct a Threat Assessment of the hotel’s swimming pools and operating system to identify the physical hazards that existed and the risks associated with swimming in the hotel’s without a lifeguard, an attendant, or an effective monitoring system in place.
12. Failure to assess the physical hazard associated with the landing zone of the children’s slide facing the access to the deeper portion of the swimming pool and the attraction created by the basketball hoops and balls.
13. Failure to implement appropriate layers of protection to delay or limit access into the deeper water from the shallow water section of the pool; and the possible failure to have a lifeline in place and painted depth line prior to and at the time of this incident to separate the shallow section from the deeper section of the swimming pool.
14. Failure to establish appropriate Standard Operating Procedures (SOPs) for hotel employees to regularly and routinely inspect and/or monitor the swimming pool, swimming pool area, and swimming pool equipment problems.
15. Failure to establish appropriate Facility Use Guidelines for their guests to educate them about safe practices in the swimming pool and pool area, as well as emergency procedures to be implemented should they be necessary.
16. Failure to adequately identify the emergency telephone within the pool area as well as the failure to insure the proper operation of this telephone.
17. Failure to install an active or effective passive monitoring system of the swimming pool area, as well as within the swimming pool itself to alert hotel staff of a medical emergency within the pool area, or an immersion or submersion incident within the swimming pool.
18. Failure to provide lifeguards and/or pool attendants to monitor and supervise guests using the activity pool.
19. Failure to appoint and train a certified pool operator to maintain/manage the pool.
The following is a narrative SUMMARY OF OPINIONS
The Holiday Inn Express on Zellman Court in Milwaukee, Wisconsin has a website that markets and advertises the Holidome and indoor pool to allure families with young children to their indoor waterpark. The photographs of the activity pool on the website actually depicts, what appears to be, a lifeguard monitoring and supervising the swimming pool while numerous young children are playing in the Puddle Jumper Lagoon.
The advertising and marketing strategy of this hotel focuses on the Holidome and indoor waterpark and its catering to families with young children. Yet, under Traveler Reviews on the Holiday Inn’s website, several guests cite the lack of supervision and management in the pool area. Just months prior to this incident, one woman stated, “it is only a matter of time before a serious injury occurs.”
Although there is a posted sign in the pool area stating, NO LIFEGUARD ON DUTY, there are also signs stating and directing visitors to follow the “flute attendants” instructions and “wait for lifeguards starting instructions.” These signs are accompanied with pictures of the lifeguard.
Based on my review of the materials previously identified, it is obvious that the owner, operator, and employees of the Holiday Inn Express were oblivious to the hazards, risks, and dangers posed by the hotel’s swimming pool to the guests of the Holiday Inn Express. And, they were oblivious to industry-accepted principles and practices, as well as Wisconsin Administrative Regulations, related to the safe operation of the hotel’s swimming pool.
The swimming pool located on the premises of the Holiday Inn Express was classified as Class D Public Swimming Pool. Information on the safe operation of Public Swimming Pools is available in a variety of sources, including the state’s health code, the National Spa and Pool Institute (NSPI), the National Swimming Pool Foundation (NSPF), and a variety of other organizations and publication. But, instead, the hotel’s owner, operator, and employees relied solely on the health department inspector to guide them in the safe operation of their swimming pool, and they conducted absolutely no research or investigation into the hazards, risks, and dangers associated with their pool, or means by which to mitigate these hazards, risks, and dangers.
Prior to this incident, the Holiday Inn Express had been previously cited for numerous safety violations that had resulted in injuries to hotel guests, including the death of Farress Taylor, Jr. This list of violations include:
HFS 172.20 (1) (a) Each pool shall be under the supervision of at least one operator.
HFS 172.21 (1) Each pool shall be under the supervision of at least one responsible supervisor at all times when the pool is in use or is open to the public. The responsible supervisor shall be on the premises or available via a phone number posted by the emergency phone to respond to an unsafe or unsanitary condition at any time the pool is open for use. The responsible supervisor shall maintain order; ensure that safety equipment is in place; and enforce pool use regulations governing safety, sanitation and water testing.
HFS 172.26 (1) (a) All rescue equipment shall be mounted in a conspicuous place and shall be readily available. (2) For indoor pools, a working telephone shall be available within the enclosed area around a pool. A current list of emergency numbers and the facility’s location shall be posted near the telephone.
HFS 172.33 (1) (e) Pool equipment, including equipment on the deck, shall be properly located and installed and maintained and repaired if necessary. (4) (c) Electrical equipment and lighting shall be maintained in good repair in the operating condition.
HFS 172.36 (2) (a) If access to the interactive play attraction is not restricted by an enclosure an attendant shall be present.
Although there was a surveillance camera in the pool area, it did not cover the entire pool area, especially the deeper portion of the swimming pool. Furthermore, the front desk clerk, Jennifer Chapman, did not check the monitor for problems at the swimming pool, even after she was alerted to a possible problem when the emergency phone from the pool rang at her station.
When the phone did ring at the front desk, Jennifer Chapman failed to investigate this matter. And, when the child’s mother, Stephanie Moss, ran to the front desk to report the emergency, the front desk staff failed to respond appropriately.
There was no attempt made by the owner, operator, and employees of the Holiday Inn Express to develop swimming pool Facility Use Guidelines or to educate their guests on how to supervise young children using the facility, or how to safely and effectively respond to an emergency within the swimming pool and/or its surrounding area. The Holiday Inn Express charged several hundred dollars to host the birthday party at the Holidome and activity pool, but did nothing to safeguard and insure the safety of their guests.
Although there was an emergency telephone in the pool area, there were no posted phone numbers or directions on how to use the phone. And, the telephone was broken in that the Stephanie Moss was unable to communicate with the front desk when she attempted to use the telephone.
There was no emergency alarm system available for Stephanie to activate in order to alert hotel staff of the emergency within the swimming pool.
The owner, operator, and employees of the Holiday Inn Express failed to conduct a Threat Assessment of the swimming pool to determine the hazards that existed, the heightened risks to young children who used this pool, and the dangers associated with this facility. And, they failed to develop and implement prevention strategies to prevent submersion incidents or to mitigate the hazards, risks, and dangers. There was no effort made to educate the guests about pool safety and/or water rescue.
Because of the positioning of the child’s slide and play area, and the location of the opening in the dividing wall for access into the deeper water, the landing zone of the child’s slide automatically places the child in close proximity to the deeper water. Because there was no painted depth line or other warnings or barriers, the child was able to easily gain access to the deeper water section. And, because of the drastic increase in water depth between the two sections of the pool, once a non-swimmer ventures beyond the breakpoint, it would be very difficult to regain his footing to return to the shallower water.
The owner, operator, and employees of the Holiday Inn Express failed to inform Stephanie and Farress of the significant difference in water depths between the two sections of the activity pool.
The owner, operator, and employees of the Holiday Inn Express failed to develop Standard Operating Procedures (SOPs) for all hotel personnel to regularly inspect and monitor the swimming pool area throughout the day when the swimming pool was open to their guests, and they failed to inspect the equipment, including the telephone prior to opening the pool, as well as throughout the day while the pool was in use.
The owner, operator, and employees of the Holiday Inn Express failed to develop and implement Emergency Action Plans (EAPs) and Emergency Response Plans (ERPs) for emergencies associated with the swimming pools. Once Jennifer Chapman received a phone call from the swimming pool area, she failed to appropriately respond or investigate the matter. Furthermore, once Stephanie approached Jennifer at the front desk to alert her to the emergency, Jennifer failed to respond until she completed her transaction with another hotel guest. And, even though Jennifer was informed of the extent of the emergency, 911 still wasn’t called until Jennifer went to the swimming pool and then instructed David Boomslitter to call 911.
When Jennifer and David finally responded to this incident, they did so without any type of plan, and without appropriate first aid and resuscitation equipment, such as Personal Resuscitation Masks or Shields, without an Automated External Defibrillator (AED), and without Personal Protective Equipment (PPE). Furthermore, none of the staff were trained in CPR, and none of the staff had ever been instructed in appropriate emergency rescue procedures to be administered while waiting for the arrival of Fire and Rescue personnel. No AED was available at the hotel. None of the staff administered proper or effective CPR to Farress. Although CPR was being administered by Bridgett Moss, a medical doctor, the administration of CPR was delayed, it was performed without the use of a positive pressure ventilation device, and no one from the hotel assisted her to provide more effective two-person CPR.
In summary, the owner, operator, and employees of the Holiday Inn Express failed to prevent this incident. They failed to assess the hazards and risks of the facility, and they failed to develop, implement, and administer appropriate prevention strategies to prevent this type of tragedy from occurring.
The owner, management, and employees of the Holiday Inn Express failed to recognize the potential for this type of incident, based on their failure to conduct an effective threat assessment, and they failed to recognize the incident as well, as they had no mechanism in place to monitor the activities in the swimming pool. As a result, Farress’ distress went unrecognized, there was a delay in calling 911, and there was a delay in the administration of lifesaving CPR.
And, the owner, operator, and employees of the Holiday Inn Express failed to manage this incident appropriately, as they had no Standard Operating Procedures, Emergency Action Plans, or Emergency Response Plans in place; they had no emergency resuscitation equipment available, including an AED; they had no one on staff trained in CPR; and they had problems with their communication system, which also resulted in a further delay to call for and obtain Advanced Life Support care for Farress as provided by the Fire EMS personnel.
Therefore, it is my opinion that the owner, operator, and employees of the Holiday Inn Express were negligent in their actions and that this negligence caused the submersion and death of Farress Taylor, Jr.