Drowning Adults Have a Tough Road in Court Because of Assumption of the Risk

sunsetIn a recent Georgia injury case, the court considered the drowning of a 20-year-old college student while he was studying abroad in Costa Rica. His university offered students a 12-day trip. They had to pay a fee that went toward the trip expenses as well as a per credit tuition rate and were supposed to get four credits toward their degree for academic work they did in connection with the trip.

The university retained a tour operator to provide a guide, transportation, and coordination. Later, the director of the program would testify that the university tried to follow best practices, including safety procedures for the students. He acknowledged that students went swimming on the trips, but he hadn’t done any investigation to decide whether Costa Rica had any potential dangers.

In a meeting with the students who registered for the program, two professors asked them if everyone was a good swimmer. The students said they were. The group talked about swimming in the ocean and discussed that there were currents. A professor advised that in a prior trip, a student realized he was a weak swimmer and had to wear a life jacket in the water. The students claimed to be good swimmers even after hearing this. They signed a release that included an exculpatory clause related to the university.

They flew to Costa Rica in the winter of 2010 and checked into a hotel on the Pacific Coast. They got in a bus and went to a beach nearby. There were no warning signs at the beach, and there were no lifeguards or safety equipment there. Others were in the water and on the sand. The students swam together and went into deeper water. Twenty minutes later, they were told to come closer to shore. Soon after that, one of the students, who was a former lifeguard, heard screaming. The victim needed help. The chaperone went out to help the victim, who was pulled out by a current. The victim couldn’t get onto his back to float when instructed to do so. He was hit by a wave and disappeared. His body was later found.

The family sued for wrongful death, claiming that the university’s negligence and gross negligence had caused their son’s death. An expert in coastal sciences testified that the decedent was caught in a rip current and got distressed before drowning. He was of the opinion that the beaches on Costa Rica’s west coast were especially dangerous, due to the lack of lifeguards as well as being pocket beaches and having high wave energy forces.

The university moved for summary judgment, arguing it owed no legal duty, and the decedent’s family’s claims were barred by a written waiver. They also argued he’d assumed the risk of swimming in the ocean, and there was no evidence of gross negligence. The motion for summary judgment was granted.

On appeal, the parents argued that the university wasn’t entitled to summary judgment on the basis that their son had assumed the risk. Assumption of the risk stops a plaintiff from recovering damages for negligence when it’s shown he chose actions with full knowledge of the danger and without coercion. A defendant trying to show assumption of the risk has to establish the plaintiff knew of the danger, understood the risks, and voluntarily chose to expose himself to the risks. The appellate court reasoned that it’s well established under Georgia law that drowning is a tangible peril, and knowing this can be charged to people in the absence of a showing of a lack of ordinary capacity. While the record didn’t show the decedent knew there were rip currents, the ocean itself was dangerous, and there was a risk of drowning that was known. The appellate court reasoned that the decedent was a competent adult who should have appreciated the risk of drowning. The lower court’s judgment was affirmed.

Atlanta wrongful death attorney Christopher Simon has considerable experience representing families who have lost their loved ones due to negligence and wrongful conduct, and he is prepared to assist you with a possible claim. Indeed, if you believe you have a possibly meritorious claim and would like to discuss the options you may have for legal recovery, feel free to contact us to arrange a free case consultation.

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