Personal Injury Lawyers Say Drowning Deaths During Mandatory Swimming Classes Are Common

By Catherine Ho
Daily Journal Staff Writer

As 14-year-old Cesar Brandon Urena lay motionless at the bottom of a swimming pool, surrounded by 40 of his bathing suit-clad classmates, his PE teacher assumed he was joking.

So he sent another student to dive down and pass along the message: "If he's playing around, he's going to be in a lot of trouble," according to personal injury lawyer Shirley Watkins of Michels & Watkins, in Los Angeles, who is representing Brandon's family in a lawsuit against Desert Sands Unified School District.

"I don't think he's playing around," the student said as he came back up.

Minutes later, Brandon was pronounced dead at a nearby hospital. He was a ninth grader at La Quinta High School in La Quinta when he drowned Sept. 7, 2007, during a mandatory swim class.

His family filed a wrongful death suit, saying the school district failed to act responsibly to prevent the accident. They are asking for $5.5 million. The case, which is awaiting trial, brings to light what many personal injury lawyers say is a gaping hole in the state statutes.

The California Health and Safety Code requires a lifeguard be present at public pools but not at PE swim classes because of an exemption stating that if a pool doesn't charge a fee, a lifeguard does not have to be present.

There's been a push in California for 20 years to pass legislation that would require trained lifeguards at school swim classes, but water safety advocates are still trying to find a legislator to sponsor it. The effort has accelerated over the last two years, but a revision to the state's bathing code has yet to emerge from those discussions, said Alison Osinski, a San Diego-based aquatics and water safety consultant brought on as a plaintiff's expert in drowning cases.

It's unclear how many schools across the state have pools and how many require students to take aquatic physical education classes.

To try to prevent liability, many schools post a "No lifeguard on duty" sign. La Quinta is one of them.

Desert Sands superintendent Sharon McGehee and the attorney representing the district did not return calls for comment.

In court filings responding to the wrongful death complaint, the school system emphatically denied any responsibility in Brandon's death.

"Plaintiffs did not exercise ordinary care, caution or prudence to avoid or prevent the incident/accident," the district said in its response to the lawsuit, "and that said injuries and damages, if any, were caused by the... carelessness or negligence of plaintiff."

The school suspended swim classes after the drowning.

"Many different thoughts come to mind when I heard they don't have to have lifeguards or somebody there to rescue or give some kind of assistance," said Brandon's father, Cesar Urena. "And they obligated these kids to get into the pool. I don't understand how that's possible."

It's unclear how Brandon - who, according to his father, often swam recreationally with friends and family - slipped under the surface, unnoticed. But it appeared to have happened during the 5 minutes to 10 minutes that the PE teacher was giving "pool rules" to the girls in the class, allowing the boys to go into the water unsupervised, Watkins said.

It can take less than 90 seconds for someone to lose consciousness after sinking underwater, Osinki said. After another 60 seconds, the person reaches aspiration - a state where their lungs fill with water, causing an electrolyte imbalance in their bloodstream. After that point, the chances of resuscitation without brain damage are miniscule.

On the day Brandon drowned, one instructor was in charge of at least 40 students. There was no lifeguard.

It is an all-too common scenario at school pools, said Osinski, who has worked on dozens of school drowning cases, including a 2008 high school drowning in Atascadero.

The distractions that can come from supervising quarreling students makes it all too easy for a student to quietly go under and never come back up, said Watkins, whose firm regularly represents plaintiffs in drowning cases. In 2000, the firm obtained a $4.25 million jury verdict in connection with the drowning of a student at the Hollywood High School swimming pool.

"If you make safety an option, this is what happens," Watkins said. "The school districts on their own are not going to spend the money to have lifeguards if they're not required by law to do so. Until they do so, operating a pool during PE class without a lifeguard is an invitation to disaster because a PE teacher cannot adequately supervise that many kids in a swimming pool."

Drownings during PE classes are rare but not unheard of, Osinski said. Some have occurred in classes where the teacher was actually a trained lifeguard, but wasn't lifeguarding at the time.

"We're asking them to do two jobs at once - teach and lifeguard - and that's impossible," Osinksi said.

In 2002, a 15-year-old sophomore drowned during a swim class at Santa Ana High School.

In 2007, 14-year-old Jerry Pham nearly drowned during a mandatory swim class at Milpitas High School, and was at the bottom of the pool for several minutes before being pulled out by security guards and classmates. He survived, but suffered brain injuries, according to a personal injury suit his family filed against Milpitas Unified School District in 2008.

The school district denied all allegations of negligence, said John Shupe of Shupe & Finkelstein in San Mateo, who is representing Milpitas Unified.

Clayton Hall of San Luis Obispo-based Hall, Hieatt & Connely disagrees with the contention that swim classes are inherently unsafe. Hall, who represents the Atascadero School District in another wrongful death case where a child died during a mandatory swim class, said a lack of information - not a safety lapse - was to blame in his case.

John Erlanson, who suffered from epilepsy, died in the Atascadero High School pool during a mandatory swim class in May 2008.

"Accidents do happen," Hall said. "This boy had a predilection towards having seizures. The school district was unaware he was going through a medication change. No one told the school that. There was information the school didn't have."

But the plaintiffs assert that, had the school district "acted in a responsible manner" to supervise Erlanson, the drowning would not have occurred, according to complaint filed in San Francisco Superior Court in March.

The family, which is also represented by Michels and Watkins, sued the district and Erlanson's neurologist for allegedly not telling the family he needed one-on-one supervision when he was swimming because of his epilepsy. The suit also names the Regents of the University of California, which operates the hospital and clinics where the neurologist practices.

The same pool where Erlanson drowned is also used as a public pool in the small community of Atascadero. When used as a community pool, it does have lifeguards on duty. But during the PE class, it does not, Hall said.

He said he believes the classes are safe, but there has been talk of bringing in volunteer lifeguards or students who are certified lifeguards to monitor the swim classes.

Until schools are legally required to hire lifeguards to monitor PE classes, Watkins said they remain a risk, even for students who know how to swim.

"Until they do so, operating a pool during PE class without a lifeguard is an invitation to disaster," she said. "A PE teacher cannot adequately supervise that many kids in a swimming pool. You can't do lifeguarding duties and act as a teacher."

catherine_ho@dailyjournal.com