The parents of a 15-year-old who drowned after following his friends past a line of warning buoys into deeper water in a campground pond can sue over allegations the pond was unsafe, a Michigan appeals court has ruled.
Signs warning “No Lifeguard On Duty” and “Swim At Your Own Risk” didn’t explicitly describe the dangers of the murky water in the pond or tell swimmers not to go past the warning buoys, the three-judge panel decided, reversing a trial court’s dismissal of the case.
The signs left it to the person reading the sign “to determine what his or her ‘own risk’ is,” a plaintiff expert said. That and other expert opinions created a question of fact for the jury to decide, the Michigan Court of Appeals ruled in a Sept. 21 decision.
“Viewing the facts in the light most favorable to plaintiff, reasonable persons could conclude that the swimming pond constituted a dangerous condition posing an unreasonable risk of harm,” wrote the three-judge panel.
Jaylen Hill drowned in a man-made swimming pond at a Kampgrounds of America camp area after following his half-brother and a friend into an area marked off by four posts with warning signs and strings of bouys between them. When the others surfaced, they couldn’t see Jaylen, who was later discovered drowned in eight to nine feet of water. The water outside the buoys was two to three feet deep. A sign on shore warned parents to supervise their children.
The plaintiffs presented expert opinions that the pond was unreasonably dangerous despite the signs and warning bouys. One expert said the pond was unsafe because the signs didn’t prohibit swimming beyond the buoy line or spell out “the heightened risk posed by the deep, dark and murky water.” The campground should have posted lifeguards, and if it allowed swimming beyond the buoy line, to require swimmers to wear life jackets, that expert said.
Further, another plaintiff expert wrote, it was foreseeable young adolescents would swim in the pond regardless of whether their parents were supervising.
Kampgrounds said its expert believed the pond was adequately protected with signs, and Jaylen’s father testified his son could read the signs but was not a good swimmer. The appeals court said that didn’t matter.
“Viewing the evidence in the light most favorable to plaintiff, reasonable persons could disagree on whether Jaylen knew or had reason to know of the condition and the risk involved, whether defendant should have expected that Jaylen would not have discovered the hazard before falling victim to it, and whether defendant failed to take adequate precautions to protect swimmers,” the court concluded.
The panel consisted of Judges Mariam S. Bazzi, Sima G. Patel and Matthew S. Ackerman.
