By John J. Miller, Ph.D.
On November 27, 2018, a lawsuit was filed in the Superior Court of California against the San Ramon Valley Unified School District (hereafter referred to as the School District) school and physical education teacher as a result of a 15 year-old boy drowning in a fourth period physical education class (Curry v. San Ramon Valley Unified School District, Aaron Becker, et al., 2018). The lawsuit was brought by the parents of a 15 year-old student alleging that the teacher, Aaron Becker, was looking at his cell phone and not paying attention to the class of 57 students treading water. As a result, the plaintiffs state that the teacher was negligent of his supervision of class with willful and knowing disregard of the rights and safety of the decedent plaintiff and the School District was negligent in the hiring, supervision, retention, and training of the instructor. The complaint indicated that the plaintiffs asked for general (non-economic) damages; punitive damages against Aaron Becker, special (economic) damages; as well as hospital, medical, professional, and incidental expenses incurred by the plaintiffs.
According to the complaint, Benjamin (Ben) Curry and 56 other students were told to tread water for 3 minutes at the end of class. According to the lawsuit, Becker instructed the students to tread water for three minutes and told his students that if they touched the lane ropes he would extend the time for them to tread water (Gafni, 2018). The time stamps from the surveillance video indicate the students were treading water for closer to 4 minutes than 3 minutes and 30 seconds. Curry slipped under the water and drowned after Becker added 30 more seconds of treading water. The school’s video surveillance, according to the lawsuit, revealed that Becker was standing on a diving board and looking at his cell phone, about 15 feet from Curry, while the students were supposed to be treading water.
The complaint further indicated that at the end of class, Becker dismissed the students without taking roll or checking the pool, leaving Curry’s body in the water with his clothing and cell phone still sitting nearby on the pool deck. Following fourth period, the students went to lunch before going to their fifth-period class. Curry’s body was not discovered until students returned from lunch for the fifth period physical education class. Samantha Libby, the teacher for fifth period class, discovered Curry “at the bottom of the pool” about an hour later, recovered his body and tried to resuscitate him (Gafni, 2018).
According to the complaint, the plaintiffs brought three causes of action against the defendants. The first cause of action was a wrongful death alleging negligence against all defendants. The plaintiffs perceived that the School District and its employees owed a duty of care, stemming from a special relationship between the School District, Becker and Ben Curry (as an invitee) to supervise, protect, assist and control the safety was breached. Further, the plaintiffs asserted that the School District and Becker breached their responsibility to provided reasonable protective measures to ensure Ben Curry’s safety, protect him from foreseeable conduct or permit him to participate in dangerous activities during school. As a result it is alleged that the School District and Aaron Becker were the direct, legal and proximate cause of the fatal injuries sustained by Ben Curry.
The second cause of action contended that the School District was negligent and reckless in hiring, training, supervising, and retaining an employee they knew or should have known was unfit to teach swimming. It is important to note that Becker had minimal water safety experience and his lifeguard certification expired two months before Curry’s drowning. Moreover, there were no other lifeguards at the pool to help Becker supervise the 57 students. Additionally, the district had no rules or regulations in place to guide Becker on instruction of the swim class. The plaintiffs claimed that the School District breached their duty to their son, Ben Curry, by carelessly and negligently training and supervising Becker. Moreover, the school district breached its duty to Curry by failing to supply any guidelines, policies, procedures, rules, or regulations regarding the class sizes or lesson plans for swimming activities. As a result, it was alleged that the School District was vicariously liable for the negligent acts and omissions of Becker and such omissions resulted in the direct, legal and proximate cause of the fatal injuries sustained by Ben Curry.
The third cause of action asserted willful misconduct on the part of Becker. According to the lawsuit, Becker was aware of the dangers to the 57 students, including Ben Curry, of treading water in 12 feet of water. Regardless of the likely danger, Becker willfully and consciously disregarded the safety of Ben Curry and other students by looking at his cell phone and taking no action as Curry became exhausted and slipped under the water. Finally, when Becker dismissed the class he left the pool area without checking the class roster.
Adding to the incident, students at San Ramon Valley High School as local media suspected that Curry had committed suicide. In fact, subsequent to Curry’s death, classmates conjectured that Curry killed himself as he supposedly battled mental illness and bullying (McBride, 2018). Furthermore, the school did very little to respond to the inaccurate speculations despite being in possession of the surveillance tape of the accident as well as Curry being present during swim class when the accident happened (Gafni, 2018). As a result, the school district superintendent stated that, “Neither the Contra Costa County coroner’s report, nor the Danville Police investigation, indicated that Benjamin caused or contributed to his death” (McBride, 2018, para. 16).
Negligence
Negligence is an unintentional tort in which the alleged wrongdoer does not intend the consequences to injure another person (Miller & Schoepfer, 2018). Negligence reflects whether acts of omission or commission existed that resulted in the harm of another person. The commission of an act is one in which a person instructs another to commit an action that causes harm to that person or others (Miller & Schoepfer, 2018). For example, in this case, Becker may be negligent by an act of commission when he required the class to tread water for an additional 30 seconds. It is during these 30 seconds that Ben Curry slipped, without notice, underwater and never resurfaced. On the other hand, if a person could have prevented an action from occurring but choose not to, it would be perceived as an act of omission. In this case, it could be perceived that Becker was negligent because he omitted properly supervising the class or by checking the class roster to ensure that all students had exited the pool.
Since physical education teachers are hired because of their experience and knowledge of the sport, courts have imposed a heightened duty of care on them, especially when those individuals are responsible for teaching a dangerous activity such as swimming (Kahn v. East Side Union High School District, 2004; Knight v. Jewett, 1992). According to the Centers for Disease Control (CDC; 2016) drowning is the second leading cause of death of minors in the United States. More specifically, between 2005 and 2014, an average of 3,536 fatal unintentional, non-boating drownings occurred every year in the United States (CDC, 2016). This figure equates to almost 10 deaths per day over the 10-year period. To ensure that the student is adequately prepared to perform an action, an instructor has a duty to properly teach the elements of progression as well as consider the complexity of the action, athlete readiness, and safety. An instructor may be found to have breached a duty of care to a student if the instructor engages in conduct that is reckless in the sense that it is “totally outside the range of the ordinary activity” involved in teaching or coaching the sport (Knight v. Jewett, 1992, p. 318).
Negligent Hiring, Retention, Training, and Supervision
Negligent hiring happens when the employer (i.e., School District) knew or should have known that an employee was unqualified, before hiring the employee (Garcia v. Duffy, 1986). Conversely, negligent retention occurs when, during the course of employment, the employer (i.e., School District) becomes aware or should have become aware that an employee was unqualified for the assignment (i.e. Becker’s lack of lifeguarding or water safety certification) and does not discharge or reassign the employee (Garcia v. Duffy, 1986).
Negligent supervision occurs when there is a duty to supervise and that a reasonable person would recognize that an incident could happen (i.e., drowning) and take appropriate steps to prevent it (i.e. keep all students in pool at all times). The standard of care increases when a minor (i.e. 15 year old) is involved, and a potentially dangerous condition exists that the supervisor (i.e. Becker) should be aware of such as drowning (Knight v. Jewett, 1992). Additionally, the School District may have been negligent in this matter as they knew or should have known about Becker’s deficiencies in water safety and lifeguard training and assigned one or more individuals to help supervise the class, especially a class the size identified in the lawsuit.
Negligent training allegations are usually brought in conjunction with negligent hiring, retention, and supervision claims, but can be brought independently. Negligent training emphasizes the legal duty an employer owes to provide reasonable care in training; that the lack of training proximately caused the injury, and the plaintiff suffered financial or physical injury damages because of the lack of training (Miller & Schoepfer, 2018). In this case, the School District owed Ben Curry, as well as the other students, the duty to ensure that Becker possessed up-to-date lifeguarding and water safety certification.
Reckless Misconduct
Expressions such as gross negligence, willful or wanton misconduct, and reckless conduct disregard the foreseeable risks that may be employed to determine the difference between negligence and reckless misconduct (Dobbs, 2000). Reckless misconduct requires that the defendant’s actions were either reckless or intentionally injurious. It requires a conscious choice of a course of action, either with knowledge of the seriousness of the danger to others. In determining whether the defendant acted recklessly, the trier of fact will have to consider both the nature of the game and the totality of circumstances surrounding the shot.
Respondeat Superior
Often, the employer of the person who allegedly committed an offense will be named in the lawsuit under the theories of respondeat superior and vicarious liability (McCaskey & Biedzynski, 1996). Central to vicarious liability is the form of strict liability imposed upon a third party for the acts of individuals whom the third party has the right, ability, or duty to control (Chistensen v. Swenson, 1994). Respondeat superior is a type of vicarious liability, which allows a third party to be held liable for a defendant’s negligence in some cases, even if the third party was not present when the injury occurred or directly caused the injury.
Dr. Miller is a Visiting Professor, Sport Management in the College of Business & Economic Development at The University of Southern Mississippi.
References
Centers for Disease Control and Prevention. (2016). Unintentional drowning: Get the facts. Retrieved from https://www.cdc.gov/homeandrecreationalsafety/water-safety/waterinjuries-factsheet.html
Christensen v. Swenson, 874 P.2d 125, 129 (Utah 1994).
Curry v. San Ramon Valley Unified School District; Aaron Becker; and DOES 1-50, et al. Case no. C18-02403 (November 27, 2018).
Dobbs, D. B. (2000). The law of torts. St. Paul, MN; West Group.
Gafni, M. (2018, November 2). Danville school district apologizes for drowning death of Ben Curry, announces safety changes. The Mercury News. Retrieved from https://www.mercurynews.com/2018/11/02/danville-school-district-apologizes-for-drowning-death-of-ben-curry-announces-safety-changes/
Garcia v. Duffy, 492 So.2d. 435, 438—39 (Fla. Dist. Ct. App. 1986).
Kahn v. East Side Union High School District, 75 P. 3d 30 (Cal. 2003).
Knight v. Jewett, 834 P.2d 696, 710 (Cal. 1992).
McCaskey, A.S., & Biedzynski, K.W. (1996). A guide to the legal liability of coaches for a sports participant’s injuries. Seton Hall Journal of Sport Law, 6, 7—125.
McBride, A. (2018, November 28). Danville teen drowned in pool as teacher looked at cell phone, suit alleges. San Francisco Chronicle. Retrieved from https://www.sfchronicle.com/bayarea/article/Danville-teen-drowned-in-school-pool-as-teacher-13429728.php
Miller, J.J. & Schoepfer, K.L. (2018). Unintentional tort. In J.J. Miller & K.L. (Eds.), Legal Aspects of Sport (2nd ed.) (pp. 17-38). Burlington, MA: Bartlett & Jones Publishers.
