Lawsuit filed in child’s drowning

By: Staff Report
Courtesy photo Miracle Smith was 7 years old when she drowned in the Union County YMCA swimming pool on July 22, 2015. A wrongful death lawsuit was filed against the YMCA and the Union Housing Authority by the representative of Smith’s estate earlier this month.

UNION — A wrongful death lawsuit has been filed against the Union County YMCA and Union Housing Authority in the 2015 drowning death of a child in the YMCA swimming pool.

Miracle Smith, 7, was at the YMCA pool with a group from the Union Housing Authority on July 22, 2015 when she was found unresponsive by lifeguards who pulled her from the water and performed CPR on her. The efforts by the lifeguards, EMS personnel called to scene, and emergency room personnel at Wallace Thomson Hospital to resuscitate Smith were unsuccessful and she was pronounced dead at the hospital.

Smith’s death was investigated by the Union County Coroner’s Office, the Union Public Safety Department and the SLED Child Fatality Division. An autopsy performed on Smith’s body found that her death was consistent with accidental drowning.

The YMCA closed its pool to the public after Smith’s death while it reviewed its policies and procedures regarding pool safety. Inspectors from DHEC and investigators from SLED both visited the pool and cleared it to reopen, but the YMCA decided to keep it closed until the review was completed and new safety precautions added.

The additional precautions included using the “test, mark, protect” system for enhanced pool safety with the test portion requiring all participants under the age of 14 to pass a swim test in order to use the entire pool area. The test consists of swimming the length of the pool (25 yards) without touching the bottom of the pool and maintaining at least a 45-degree angle; treading water for 30 seconds while keeping ears and face above water; and plunging into water above head level and easily returning to the surface.

The mark portion involves giving the swimmers who pass the test a bright yellow wristband to indicate they have passed. This will also include a tracking system so swimmers do not have to repeatedly take the swim test.

The protect portion requires non-swimmers who do not meet height requirements to wear a U.S. Coast Guard approved life vest. Non-swimmers under the age of 10 must be within arm’s length of their responsible adult, and one adult can be responsible for no more than three children. Lastly, any participant deemed to be exhibiting unsafe swimming practices may be asked to perform a swim test at the lifeguard’s discretion. Failure to comply with any of the lifeguards’ instructions can result in revocation of pool privileges.

The pool reopened at the end of July 2015.

The YMCA’s actions to improve pool safety and prevent a repeat of the tragedy that claimed Smith’s life, did not prevent it, three lifeguards, and the Housing Authority from being named in a wrongful death lawsuit filed Wednesday, July 12 of this year in the Union County Clerk of Court’s Office.

The suit was filed by Melissa G. Mosier of the law firm of McWhirter, Bellinger & Associates, P.A., on behalf of the plaintiff, Harold E. LeMaster, C.P.A., who is described by the suit as the appointed representative of Smith’s estate. It names the YMCA; lifeguards Chelsea Crocker, Joseph Chapman and Kelsie Coker; and the Union Housing Authority as defendants.

The suit states that Smith was at the YMCA on July 22, 2015 with a group from the Housing for open swim time. It states the YMCA has an agreement with the Housing Authority to accept children from the Housing Authority for fee of $2 per child. It further states that Smith was a paying guest at the YMCA and under the care, custody and control of Housing Authority and the YMCA acting through its respective employees, including the YMCA lifeguards.

The suit states that Smith’s mother “reasonably expected that while her daughter was in the custody of the Housing Authority and the YMCA, that they, individually and in combination with one another, would supervise, monitor and care for her daughter.” It further states that Smith’s mother “reasonably relied on the Housing and Authority and the YMCA to safely return her daughter back to her at the end of the day.”

The suit further states that:

• Neither the Housing Authority nor the YMCA inquired about whether any of the children from the Housing Authority could swim.

• The Housing Authority did not ask or insist that the YMCA test the children’s ability to swim prior to letting them get in the pool.

• The YMCA did not administer a swim test to any of the children from the Housing Authority to determine whether or not they could swim.

• That as a result the YMCA, acting through its lifeguards, did not mark swimmers versus non-swimmers.

• That Smith was a non-swimmer and was not provided with a personal flotation device or kept in the leisure pool or the shallow end of the pool or a splash pad.

• That the Housing Authority had the ability and opportunity to supervise and monitor the children at the pool including Smith because it had chaperones there with them.

• That minutes before Smith drowned, Coker, Chapman, and Crocker, all of whom were YMCA lifeguards, completed a lifeguard rotation while 35-40 children were still in the pool.

The suit also states that the YMCA has surveillance footage from the pool of Smith’s drowning that it states shows the events leading up to her drowning, the drowning itself, and her body being pulled from the water. It states that the footage is expected to show that:

• At 2:39:28 p.m., Smith climber up the ladder out of the shallow end of the pool and walked to the lap lane.

• At 2:39:35 p.m., Smith jumps in the lap lane of the pool which is believed to be approximately 4 feet deep.

• At 2:41:04 p.m., Smith struggles at the surface of the pool and drops below the surface.

• At 2:42:15 p.m., one of the defendant lifeguards returns to a mobile position next to one of the slides at the pool.

• Enough time elapsed from the time Smith took her last breath for her to sink all the way to the bottom of the pool and that she is alone.

• At 2:43:00 p.m. a young boy attempts to rescue Smith from the bottom of the pool and brings her to its wall.

• Smith is pulled out of the water, unconscious, by two minor children.

• After approximately 20 seconds of one of the defendant lifeguards administering CPR — comprised of compressions and ventilation (breaths) — one or more of the defendant lifeguards chooses to delegate resuscitation efforts to passerby unaffiliated with the YMCA. The suit states that the passerby’s CPR qualifications “were unverified, untested, and unknown to the Defendant lifeguard(s).”

• For approximately three minutes, the passerby administers compressions only to Smith as one or more of the defendant lifeguards watch. After this EMS arrives and takes Smith to a nearby ambulance.

The facts portion of the suit concludes by stating that Smith “dies that day.”

The suit accuses the YMCA of negligence, negligence per se, and recklessness; accuses Coker, Crocker, and Chapman of gross negligence and recklessness; and the Housing Authority of gross negligence, negligence per se, and recklessness in Smith’s death.

It states that Smith’s death “came as a result of the YMCA, Defendant lifeguards, and Union Housing Authority’s individual and collective failures to implement and/or abide by numerous safety and operational procedures and industry standards.

It further states that they “knew or should have known that their conscious failure to abide by safe, proper procedures in accordance with South Carolina law and applicable industry standards would create hazardous and dangerous conditions to the children who depend on them for protection and supervision,” specifically Smith.

The suit states that “as a direct and proximate result” of these “acts and failures” Smith “suffered a terrifying death.” It further states that the plaintiff believes Smith “experience intense fear, excruciating physical pain and suffering, and mental and emotional distress prior to her death.”

The suit states that as a result of Smith’s death, her family has “incurred various monetary losses and sustained immeasurable loss in the death of their only child.”

The suit concludes by asking for a judgment against the defendants “in a sum to be determined by a jury of the Plaintiff’s peers, for actually and punitive damages (when allowed), and for the costs of this action, and for such other relief as the court may deem just, appropriate and equitable.”

When contacted by The Union Times the Union County YMCA had no comment about the suit while the Union Housing Authority referred all inquiries to its attorneys.

Courtesy photo

Miracle Smith was 7 years old when she drowned in the Union County YMCA swimming pool on July 22, 2015. A wrongful death lawsuit was filed against the YMCA and the Union Housing Authority by the representative of Smith’s estate earlier this month. photo

Miracle Smith was 7 years old when she drowned in the Union County YMCA swimming pool on July 22, 2015. A wrongful death lawsuit was filed against the YMCA and the Union Housing Authority by the representative of Smith’s estate earlier this month.

Against Union County YMCA, Housing Authority

Staff Report