Manchester High School Freshman Dies After Being Pulled from School Pool
Posted by Brendan Faulkner of D'Amico & Pettinicchi, LLC on Nov 26, 2012 in Wrongful Death
A Manchester High School freshman died Wednesday after being found at the bottom of the school's pool. Newspaper reports indicate that the boy had been taking part in a swim class directed by a physical education teacher when he was found underwater. A similar incident occurred at the East Hartford High School pool earlier this year.
Drowning is the second leading cause of death in children worldwide. The loss of a child is the most painful loss parents and families can sustain.
Most swimming pool fatalities are preventable through the implementation of best practices in our schools. These effective prevention measures include adequate supervision including the presence of coaches, lifeguards, and other personnel depending on the number of children involved, requiring a buddy system while in water (swimming in pairs), and the training of all personnel involved with the swim class in CPR.
Governments and municipalities generally have immunity from liability for injuries occurring on their premises or caused by their agents acting in a reasonable manner arising out of their discretionary acts. It is a common law immunity codified at General Statutes §52-557n. However, under Connecticut law, for situations in which the official's duty to act is so clear and unequivocal that the rationale for discretionary act immunity does not apply, there are three recognized exceptions: 1) where the conduct involves malice, wantonness, or intent to injure; 2) statutory cause of action for failure to enforce certain laws; and 3) when the circumstances make it apparent to the official that his or her failure to act would be likely to subject an identifiable person to imminent harm.
The "identifiable person / imminent harm" exception is by far the most frequently litigated of the three. Application of this exception occurs only when the following elements are established: an imminent harm, an identifiable victim, and the action or failure to act of a public official to whom it should be apparent that his or her conduct is likely to subject that victim to that harm. With respect to whether there is an "identifiable victim," this element may be satisfied if the victim can show that he or she was an identifiable individual or that he or she came within an identifiable class of foreseeable victims. Recent appellate decisions have made the exception virtually meaningless except for schoolchildren, but whether a particular plaintiff is deemed to be within a class of foreseeable victims is ultimately a policy question.
The Connecticut Supreme Court has recognized schoolchildren attending public school during school hours are an identifiable class of foreseeable victims because they are the intended beneficiaries of the duties of care imposed by law on school officials, and because they are required to be there and their parents are required to relinquish their custody to school officials during school hours. See Prescott v. Meriden, 273 Conn. 759 (2005).