Yes, deaf lifeguard. The Sixth Circuit has ruled in favor of a would-be deaf lifeguard, saying not enough of an individualized inquiry was made into accommodating his possible placement in the life-saving position. Among the arguments the court found persuasive was that drowning persons typically do not call loudly for help, which of course leaves open the possibility that the calls for help might be coming from other persons. Some deaf persons have worked successfully as lifeguards, including Leroy Colombo, a championship swimmer who did rescues at Galveston, Tex. beaches. In the Sixth Circuit case, Oakland County, Mich., had cited safety concerns in not posting the applicant to a public wave pool. [Disability Law]
Averting a Memorial Day shutdown of many public and hotel/motel pools, the Obama Department of Justice has again delayed its pending ADA lift rules. I explain at a new post at Cato.
Unless hotels have moved to install expensive and cumbersome wheelchair lifts, they face new fines and litigation exposure under new Americans with Disabilities Act (ADA) regulations taking effect today. I explain why many pools will close as a result — and trace some of the ideological background — in my new post at Cato at Liberty (& Adler, Alkon, Frank, Adam Freedman/Ricochet (“the regulators have truly gone off the deep end,”) George Leef/Locke).
More: Notwithstanding my comments about Congressional Republicans being unhelpful, Sen. DeMint has filed a bill that would prevent the regulations from taking effect on their March 15 date. [Daily Caller] And Prof. Bagenstos defends the regulations in a way that I much fear will mislead newcomers to the topic. He emphasizes, for example, that hotel payouts resulting from federally mandated damages to complainants are for the moment unlikely. But as we know, the incentive of (one-way) attorneys’ fees has all by itself been enough to fuel a sizable volume of ADA complaint-filing, while in states like California the availability of piggyback damages under enactments like the Unruh Act turn many nominally zero-damage federal cases into highly profitable extraction propositions. As for the limitation of exposure to what is “readily achievable,” the USA Today report illustrates how uncertainty over the meaning of that term can leave pool operators exposed to risky and high-cost litigation. In the real world, fixes that wipe out the economic viability of a given pool (or the facility of which it is a part) are indeed asserted by advocacy groups to be “readily achievable.” That makes it cold comfort that some facilities can stave off liability for the moment by pledging to install the equipment by some future date.
It resulted in a lost product liability action against the pool maker in a recent Rhode Island case [Abnormal Use]
“A Connecticut teenager and her mother have agreed to pay $1.1 million to the family of a toddler who drowned while the girl was baby-sitting.” No criminal charges were filed in the Cheshire, Ct. case. The family named the teenager’s mother as an additional defendant “because she allegedly recommended her daughter to baby-sit.” [WINS.com] Earlier, a 2009 New Haven Register story reported that the family also intended to sue the town of Cheshire because the teenager had taken a babysitting class under its auspices, and because the mother had gotten to know the family in her capacity as the children’s teacher. However, according to the Waterbury Republican-American, court records “do not indicate a lawsuit against the town has been filed.”
Authorities in Queensland, Australia, intend to use spy-satellite photos to catch homeowners not in compliance with strict new safety rules on swimming pools, which include the mandatory clearing of trees near pool fences so that determined children cannot climb their way over. [Courier-Mail] More: Popehat.
In the United States, incidentally, there are some indications that a crackdown may be underway to enforce the new federal pool safety act passed last year and administered by the Consumer Product Safety Commission [Aquatics International, earlier] And (via AI) Billings, Montana is pulling the plug on a big public pool project, since “the city wasn’t willing to accept the financial risk and legal liability of owning a large aquatic center”. [Billings Gazette]
“A school has banned children from wearing goggles during swimming lessons for fear they could hurt themselves.” [Telegraph (U.K.) via Cathy Gellis, who writes, "As a swimming teacher -- in fact, one who doesn't actually like her students to use goggles -- I feel competent, and confident, in saying this school is insane."]
When compared, at least, with the comprehensively horrendous CPSIA, the other big consumer product safety law that Congress passed last year — the Virginia Graeme Baker Pool and Spa Safety Act — might seem practically uncontroversial. That doesn’t mean it was good legislation, though. [Arizona Republic, Common Room, Coyote]
They’re why the Weymouth, Mass. housing authority is banning residents from using inflatable kiddie pools at municipal housing. The state housing department sent a memo to town authorities five years ago recommending a ban on pools as well as trampolines and swing sets: “Housing authorities routinely get sued for incidents even when a tenant is the responsible party,” it said. (Jack Encarnacao, “Weymouth bans kiddie pools at public housing”, Quincy Patriot-Ledger, Jun. 7).
For all the complaints about tort reformers supposedly relying upon urban legends to promote their cause, one more frequently sees trial lawyers promoting fictional versions of their victories. As Hillary Clinton and Barack Obama kowtow to John Edwards for his endorsement, it’s worth exploring the case on his record he refers to most frequently. Remarkably, not a single mainstream media organization has questioned Edwards’s self-serving version of the Valerie Lakey case. I correct this problem in today’s American:
Sta-Rite had already been putting warnings on its pool drain covers, and the 1993 case did nothing to change their product design or the warnings conveyed to buyers. The drain cover in the Lakey case was sold in February 1987 with a warning label; soon thereafter Sta-Rite began embossing the warnings on the cover. This safety innovation was used against them at trial, the argument being that they should have acted earlier. But no one could reasonably think that an additional warning to screw in the drain cover would have made an iota of difference. The cover already had holes for screws, county regulations already required the pool drain cover to be screwed down, the pool managers testified that they had done so several times in the year before Lakey’s accident—and Edwards had already recovered millions from the municipality for its failure to keep the cover screwed down.