I. Facts:
1. On July 11, 12 year old Je broke his neck in a diving injury which took place in a back yard, above ground pool at the residence of Mr. and Mrs. De. At the time of the incident Je weighed approximately 190 pounds and was almost 6′ tall.
2. Around 4:30 PM on the date of the accident, Je was at his friend Es’ house when he learned that the Youth Fellowship, sponsored by a coalition of local churches, was having a pool party. Je had participated in a bowling outing with the group earlier in the year. He was unaware of the Bible study and just wanted to swim. He sought permission from his mother by calling her at work. She wanted him to stay home that night because he had been out three times that week. Je called a number of times until his mother agreed he could go to the outing. She then told him not to call again. She did not ask for a phone number where Je would be staying, nor did she ask Tr, who drove her son to the outing, its location.
3. The evening was to begin around 6 PM and last to 8:30. Mr. and Mrs. De were the hosts. Mr. De was paid each month to host and to supervise youth (generally ages 11-13) events. The Des picked up several youth participants in their van. Je and Jr were dropped off by Jr’s mother. The Kn’s, the De’s next door neighbors, walked over. Ms. Kn, mother of Ke and Ly, checked on her youngsters through the evening by either going to her backyard adjacent to the De’s, or looking through a window facing the pool. Ms. Kn did not witness the accident, but she did call 911 immediately after the incident occurred.
4. There are conflicting reports regarding exactly at which time different events transpired. Mrs. De believes that the youths swam from about 6:10 to 7:10, then played volleyball until 7:30, followed by Bible study. Mr. De, believes he started Bible study at 7 PM, lasting for a hour, with the participants going back to the pool around 8 PM. Both De’s concur that replicated instructions were given concerning pool rules with emphasis on no diving. Ji, a participant confirms this, stating that the no diving rule was repeated so many times that she and her friends statrted to get annoyed by the repetition.
5. Ln supports Ji’s statement, adding that Mr. De told the group that if he caught anyone diving, the diver would have to sit out of the pool. Ke supports this, stating the Mr. De made this very clear. She also says that there were “No Diving” signs on every other metal panel on the pool. Mr. De and employees of Pool Town had placed warning signs on the pool. The signs were also confirmed by Jr.
6. According to the De’s at about 9 PM, Mr. De announced that the van would be leaving soon. At that time Ms. De states that Js, Ly and Ke asked her if they could get back into the pool and she agreed. Ms. De did not see Je, nor did he ask her permission. Js states that he, Je, Ly and Ke were playing in front. When they decided to go swimming, he entered the house to change into his swim suit. He states that Je had not been swimming previously due to his not feeling well. At this time the De’s placed themselves in the vicinity of the pool. Ms. De states she believes she was in the backyard when Je dives, but she did not notice Je going in since he was not one of the group who asked permission. Mr. De says he is walking in the backyard when three youngsters approach him saying something is wrong. Ji notes that the De’s were outside all the time. And there was always an adult watching. The adults say they were in the proximity of the children 95 % of the time.
7. The witnesses to the actual accident have conflicting versions of Je’s actions. Je holds that Js jumped off the trampoline and then Je jumped on it and dived into the pool. Js differs saying Je was already face down in the pool with Ke and Ly when he (Js) walked to the backyard having changed his clothes. Ly says that Je asked her if she wanted him to throw her in, she said no and as he began to dive she attempted to stop him. Ly also says Je did not use the trampoline.
8. Mr. De states that no one used the trampoline to jump in the pool. Ms. De says she never allowed the trampoline to be used for diving into the pool, only for feet first entry. Ji states that they were using the trampoline, but Mr. De warned them against diving. Ly says that the Mrs. De put the trampoline away 5 minutes before the end of the activity.
9. According to his mother (Mrs. Gi), Je had been diving into above ground pools, including his grandmother’s and Ms. Gi’s step mother’s sister’s, since he was five or six years old with her permission as long as she was present and he would put his hands over his head. Js also reports seeing Je dive into both in- and above ground pools. Ms. Gi states that Je participated in a number of sports but he was too big to play in organized football. Je was always known as the “Gentle Giant” by his friends because he was so much bigger than them, even the older children.
10. Je’s mother says that when she was 17, she had training in lifesaving and there was no mention of proper depths for diving in her course: “…it wasn’t like that back then.” She also states e knew it was all right to dive into the water as long as he had his hands over his head. He couldn’t dive into 2 or 3 feet of water, but 4 feet was allowable. (Note that as indicated below, the depth of water in the De’s pool, when measured, was approximately 37″.)
11. Dn is the next door neighbor of the De’s. Her daughters Ke and Ly were at the outing. During the evening, she would either look over at the Des’ pool from her backyard or from a window that allowed her to see the pool. She also walked over several times during the outing, once moving her car to allow basket ball playing in her driveway. Her daughters use their neighbor’s pool often but are forbidden to dive into the Des’ pool and are very familiar with the pool rules.
12. No diving is listed as a principle of pool safety in the 1974 National Swimming Pool Institute proposed rules for above ground pools.
13. According to an inspection reported by Dr. Oi in his report, the water in the pool during his visit on the night of 15 June, 2001 was six inches below the pool’s 43″ high rim.
II. Opinions: These opinions are expressed within a reasonable degree of probability based on my experience and education.
1. At the time of the accident, Je was extremely large for his age, being taller and heavier than many, if not most adults. Diving requires coordination of fine motor skills which would be as unusual as his size in a person as young as Je. While Je had probably arrived at a near limit for his physical size, his ability to use his body was still changing and continually developing.
2. Notwithstanding his comparatively large size, his mother had allowed, if not encouraged his diving into four foot deep above ground pools, as long as he put his hands above his head.
3. In 1974, at the age of seventeen, Ms. Gi states that she took a lifesaving course and there was no mention of proper depth for diving. Ms. Gi is clearly in error. Not only has safe diving been a basic part of national water safety courses for many years, but in-water, post injury, cervical spine stabilization has also been a standard element in water rescue courses. For instance , the 1974 American Red Cross Lifesaving, Rescue and Water Safety text (p. 26) states: “Dive only into known waters of sufficient depth.” In 1984 the Council for National Cooperation in Aquatics (CNCA) published an over-view of diving injuries and their prevention. CNCA is composed of representatives from every major water safety organization in North America. In their 1984 Publication, Diving Injuries, the CNCA editors wrote: “For years, the American Red Cross has warned people that they should familiarize themselves with what they are diving into. However, such warnings imply knowledge…Unfortunately everyone does not “get the word” nor appreciate its significance.” In the same publication a 1975 Consumers Product Safety Commission grant is cited as resulting in research which concluded that diving into water of less than 5 feet depth is dangerous and should be prohibited. Additionally, above ground pool manufacturers have been cautioned to prohibit diving since 1974. As water oriented as Je and his family appear to have been, one questions why the Gi’s never stopped to seriously consider why “Shallow Water – No Diving” or similar legends could be found at the shallow ends of pools.
4. Witnesses stress the repeated admonition concerning no diving given to the outing participants by the De’s. Additionally, their were no diving warnings repeated by labels around the pool’s perimeter and by a sign on the fence in the Des’ backyard. Ke and Ly state they were trying to tell Je that there was no diving before or as he dove into the pool. Since Je had been in similar pools on a number of occasions, he should have had a clear understanding of the water’s shallow depth.
5. In his report Dr. Oi states, under “Verbal warnings were not adequate diving deterrents:” “…it was found that compliance with such (no diving) signs was reduced when there was a history of diving into shallow water without incident…Furthermore since he had previously dove in the above ground pool of his grandmother… he was not likely to perceive that it was dangerous, despite the sign.” “Therefore, mere warnings were not adequate to deter…Je, and it was necessary that a dedicated adult supervise the pool every time the children were permitted to use it…” “An attentive adult at the pool would have made Je’s incident much less likely…” It is hugely significant that nowhere in his report does Dr. Oi mention Ms. Gi’s and presumably her family’s allowing/condoning Je’s shallow water diving.
III. Conclusions:
1. Je, with or without entry from a trampoline, believed that he could successfully dive into a typical above ground pool safely. This belief was primarily the result of permission given him by his mother. The basic reason “mere warnings” were insufficient was that a neither safety aware nor safety dedicated, but a totally significant adult had fallaciously told him his diving behavior was acceptable.
2. Being told that a person of his size and age could safely and repeatedly dive into shallow water completely defies common sense, with this lack of comprehension being even more egregious in someone, his mother, purportedly having a water safety/water rescue background. Perhaps Ms. Gi was one of those who “do not get the word” per the CNCA study.
3. I believe that the responsibility for this accident rests directly on the Gi family. For a number of reasons, including his sheer physical size, there was very little anyone could do to deter Je from diving into shallow water. He was a cervical spine accident waiting to happen. Clearly and most unfortunately, in his case the question was not if, but when.
