Drowning case against Huron-Clinton Metro employees is dismissed
Lisa Cox drowned in the wave pool at the Huron-Clinton Metropark. She was discovered on the bottom of the pool by another patron after the wave generator was turned off. According to witnesses unrelated to the dead young woman, the lifeguards, pool workers and supervisors took from five to twenty minutes to properly initiate life-saving CPR measures because they were confused, unprepared, "frantic" and needed equipment was not readily available. Cox's family filed a lawsuit against the Authority and all of the employees on duty. The Wayne County trial judge determined that the Authority had complete governmental immunity and dismissed it as a defendant. The judge refused to dismiss the individual defendants, however, finding a question of fact with regard to whether they were "grossly negligent" [the standard an injury victim must meet in a negligence case against a governmental employee].In an opinion issued yesterday and authored by Judge Kirsten Kelly and two others, the Court of Appeals reversed and dismissed the case entirely. While the higher court was not authorized to "weigh" the conflicting testimony, it deemed the testimony in its entirety to be inadequate to support a claim of gross negligence. This is not a surprise, given Judge Kelly's involvement; she virtually never decides in favor of injury or death claimants.
From a review of the testimony cited in the opinion, it seems clear that the non-involved and unbiased witnesses felt that the Huron-Clinton employees were grossly unprepared to respond to a drowning incident. The opinion addressed only claims related to the frantic, befuddled response of the employees, however, and deemed them evidence of "mere negligence." Since the employees were frantically attempting to find necessary supplies and equipment, the Appellate Court concluded that there was no evidence of the "wanton disregard" that would make a governmental employee liable.
The Opinion does not document whether the family's attorneys alleged that the managers of the wave pool were guilty of gross negligence in preparing to respond to a drowning. The facts certainly suggest that this was a legitimate factual issue, given the testimony of bystanders. Nevertheless, the family will have no "day in court" to argue that issue.