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Spotlight: Revealing defendants' confusion about proper raft use helps gain settlement for teen injured in special needs class

Wells v. Board of Sch. Trustees for Sch. Dist. No. 71, Can., B.C. Sup. Ct., C963118, Feb. 15, 1999.

Shawn Wells,18, had mental disabilities and functioned at about a sixth-grade level. He attended a special needs class at a Canadian high school and participated in a sim class it organized at a pool operated by a regional district. While under the supervision of a teacher's aide, Shawn tried to back-flip into the pool from a three-by-five-foot floating raft. On his second attempt, he failed to clear the raft and suffered a fracture at CA-5, rendering him quadriplegic.

Shawn's parents contacted ATLA members Ward Branch and Jim MacMaster, both of Vancouver, British Columbia, and Ted Holekamp, of Courtenay, British Columbia, to bring suit against the school board, the regional district, and the raft's manufacturer and distributor.

Plaintiff alleged the school board and regional district had failed to (1) prevent students from performing backflips off the raft, (2) address the risks inherent in allowing the raft to be used as a diving platform, and (3) properly supervise the activity by preventing other students from using the area around the raft. Plaintiff claimed that he had not received any warnings about diving off the raft from the aide or the lifeguard assigned to the class, and that the aide had tried to push the raft out of his way but was unable to do so because of students swimming nearby.

Suit against the raft's manufacturer and distributor alleged they had failed to provide warnings relating to its possible hazards. The raft-made of four one-inch singleply mats the manufacturer had glued together-had no warnings attached.

Defendants argued the incident was unforseeable and plaintiff had been contributorily negligent in jumping from too far inside the raft. The distributor argued that it only sold the rafts to commercial pools with lifeguards who should know how to use the rafts properly.

Plaintiff's counsel began witness interviews almost immediately, which enabled them to elicit honest and clear responses while memories were fresh, Branch said. That was particularly significant here, because the student witnesses had mental disabilities and "in swimming pool cases, observations vary widely because of the chaotic environment, resulting in huge factual disputes." Branch said he suspected the key independent student witness would have forgotten much of the information if too much time had passed.

Deposition of defendants revealed significant confusion in the proper uses of the raft. The manufacturer admitted it did not consider the uses for the raft or whether there should be any limitations. In contrast, the distributor said the raft was not intended to be used as a diving platform and should only be used in a commercial pool under lifeguard supervision. Unfortunately, this limitation on use was not communicated to the regional district. At the pool, the lifeguard on duty and the aquatic supervisor both thought back-flipping off the raft was dangerous but no attempt was made to warn the teacher's aide or to instruct the special needs class on this limitation.

Plaintiff's counsel note that this case serves as a warning to manufacturers and distributors who place their products into the marketplace without informing consumers about limitations in the use of the products. In addition, the attorneys said, the case highlights the importance of making independent assessments of safe and appropriate uses for pool toys, in light of the "dearth of pool toy standards."

Most significantly, the attorneys emphasized the need for structure and supervision in special needs classes. "This was a special needs class comprised of students with mental or physical disabilities, or both. It is amazing that things could go this wrong in such a structured setting. People do not expect their kids to come home [from a special needs class] with greater disabilities," MacMaster said.

Branch also noted that this case was complicated by the problems inherent in communicating with multiple defendants. Mediation broke down because defendants, by the time they had reached a consensus, were too exhausted to begin mediating with plaintifFs counsel. Branch commented that in the future he would seek a two-day mediation, instead of the one day used here, giving defendants a day to assess their positions without plaintiff's counsel present. He said he believes that such an arrangement would best prepare all the parties to reach an agreement when regrouping on the second day.

The parties structured a settlement for about 1.48 million Canadian dollars, including 500,000 Canadian dollars in cash. Each defendant's contribution is confidential.

Plaintiffs experts were Dale Miller, lifesaving techniques; Claire Weeks, rehabilitation; Ruby Schulstad, rehabilitation; Richard Galan, housing; and Ian Karp, actuarial issues, all of Vancouver, British Columbia. MAM