Risky Business

By Juliene Hefter

As an expert witness called to testify by attorneys in numerous drowning or near-drowning cases, I’ve observed a victim’s family members attempt to ease the pain of losing (or almost losing) a loved one by finding someone to blame. In certain cases, a lifeguard or pool manager failed to perform his or her duties, or a facility didn’t provide a reasonable standard of care, and the finger-pointing is justified. At other times, however, the tragedy is exactly that: a tragedy. And tragedies occur in and around water quickly—with little or no warning.


But even an accidental drowning doesn’t make it any easier to see the pain in a parent’s eyes. The responsibility of an expert witness includes educating attorneys for both the plaintiff and the defense regarding a specific case’s merit. In the past year alone, I have turned down more than 50 cases—informing attorneys that, as heartbreaking as the incident is, “Your side is not the right side.” I simply do not believe many of the cases brought to my attention should even be cases.

I reach that conclusion by asking attorneys a definitive list of questions, beginning with the basic “who,” “what,” “when,” and “where.” Then, before I accept or refuse the case, I start digging for answers to more detailed questions that a defense attorney—or more likely a plaintiff’s attorney—will eventually ask aquatic administrators and staff members when a pool tragedy occurs. Here are five of those questions:

1. How many lifeguards were on duty? Despite reports of lifeguard shortages at all types of aquatic facilities, it is the pool manager’s responsibility to hire, train, and retain the proper number of lifeguards required by a particular state and based on the number of swimmers and size of the pool. Making sure all certification paperwork is up to date is also a priority. A pool manager at a Wisconsin high school came under fire in March 2013 (and eventually resigned) after an internal investigation into a near-drowning during a physical-education class revealed that two of the three guards present did not have proper credentials. If there is a need for more lifeguards—especially during daytime shifts in the fall, winter, and spring, when young guards aren’t as readily available—consider looking to retired lifeguards who hold updated certifications and training credentials.

2. If there were no lifeguards present, were signs warning “No Lifeguard on Duty” easily visible? These signs should be posted throughout the pool area and at all entrances. The information also can be reinforced in online newsletters and other forms of regular communication to serve as constant reminders, and front-desk personnel should inform swimmers checking in that no lifeguards are on duty. These extra layers of protection will come in handy should an incident occur.

3. Is there on-deck access to a working emergency phone? Cell phones and lifeguards do not mix; guards should be prohibited from having their phones while working. Access to an on-site emergency phone, on the other hand, is absolutely crucial. An ideal location is on one of the walls of the pool space, preferably near an entrance. The danger of positioning an emergency phone in an office located adjacent to the pool deck is that the door might not always be unlocked, resulting in a liability risk if the phone ever needs to be used. In such situations, each second is precious time lost. (High schools have faced lawsuits when a much-needed automated external defibrillator (AED) was locked in the athletic director’s office or trainer’s room, with no one present having access to a key.)

4. Does the facility have an emergency-action plan that is practiced and followed? Lifeguards and other aquatic-facility employees must be prepared for the worst-case scenario, which is why they need to know what to do when a drowning or near-drowning occurs. This includes reviewing the location and proper use of on-site emergency equipment such as first-aid kits, AEDs, fire extinguishers, oxygen sources, spine boards, and blankets. Mandatory on-site training should be held prior to every operational season, with in-service staff training taking place a minimum of four hours each month to ensure that all employees stay alert and rescue-ready throughout the season. Some aquatic managers also quiz their staff members about emergency procedures. Finally, local emergency medical services personnel should be contacted to schedule specific training with them and the staff to review what will actually take place during an emergency and what each person’s role will be. For example, if two lifeguards are on duty, does the second guard know what to do while the first guard is tending to the victim?

5. Is an all-inclusive employee manual available? Employee manuals should feature all job duties, expectations, and emergency-action plans for any number of incidents that may occur at the facility. Specifically, manuals should include policies and procedures, rules and regulations, sample incident reports, refusal-of-care forms, and hours of operation. The final page must be a form that requires each staff member to state that he or she has thoroughly read and completely understands all aspects of the aquatic-procedures manual. The form also requires each employee to acknowledge that he or she understands the mandate to enforce, obey, and implement the procedures as stated. Any change, modification, or departure from the procedures is prohibited without written permission from a supervisor. This step helps ensure that lifeguards and other staff members are fully aware of expectations and will act in a responsible manner.

Anyone in the aquatic business should also be in the business of making that experience a safe and enjoyable one for patrons. Each of the five questions above shouldn’t take long to answer if the proper procedures are already in place. For those who haven’t implemented them, it’s never too late to start. Remedial steps are easy and can be established in a matter of hours, and then accomplished within a few days.

Granted, should a drowning or near-drowning take place at a facility, an attorney will likely have many more questions, but these five inquiries will probably be among the first he or she makes.

Even if a tragedy never occurs at a facility and attorneys are not brought in, reviewing these questions can prove invaluable to increasing and strengthening the facility’s aquatic presence in the community. Concerned patrons (including parents) will notice the proactive approaches, tell their friends and family, and before long,  the aquatic facility and its staff will have an elevated reputation for providing a comfortable and secure swimming environment.

Juliene Hefter , MSOLQ, AFOI, is an aquatic safety expert and executive director/CEO of the Association of Aquatic Professionals. She is former deputy director of the Wisconsin Park & Recreation Association, a renowned speaker, and author on a variety of management and administrative topics, and provides aquatic-related consulting and expert-witness services.