Civil Trial Update: Cappello & Noël obtains $16.2 million verdict in child drowning case
On August 15, 2005, Plaintiffs brought their four year old son, Yoni Gottesman, to Cathedral Oaks Athletic Club (“COAC”) to attend a Summer Activities Camp (“Camp”). After Plaintiffs left their son in Defendants’ care, Defendants allowed him to drown. Yoni drowned right in front of camp counselors and lifeguards.
Defendants advertised that the Camp was safe, with trained lifeguards and competent camp personnel. That was not true. Rather, COAC hired inadequately trained and incompetent personnel, and otherwise failed to adequately provide a safe environment for children. For example, COAC (1) failed to implement or follow necessary safety protocols for the monitoring of children in its pool; (2) failed to enforce the few rules it did have, including that aquatic personnel had to have current child CPR training and certifications; (3) concealed and failed to disclose to parents that COAC and its sister club had a history of prior near drowning incidents; and (4) despite being required to be licensed by the State, failed to apply for the necessary license or to submit its facilities to the applicable strict inspection standards. In short, in all aspects of Camp operations, COAC was driven by a profit motive, unconcerned with how its conduct directly impacted the safety of the young children entrusted to its care.
The result was a complete systemic breakdown in every aspect of the Camp and Club.
On the day Yoni attended the Camp, Defendants assessed Yoni’s ability to swim after he arrived and concluded that Yoni’s swimming ability was limited, and that he should be restricted to the shallow end of the pool. Defendants knew it was unsafe for Yoni to have full access to the pool, but the counselors and lifeguards did nothing to restrict Yoni to the shallow end. Rather than safeguard the young boy, the camp counselor in the pool took Yoni out to the middle of the pool, roughhoused with him, aggressively dunked Yoni under the water, and left him gasping for air when he could neither swim nor grab the edge of the pool. He then began to drown.
Videotape of the tragedy shows Yoni initially struggling and then floating face down in the COAC pool for over 8 minutes. During this time, the oblivious camp counselor comes so close to Yoni that he nearly bumps into him. Lifeguards assigned to keep the children safe demonstrate conscious disregard for Yoni. One lifeguard turns his back to the pool and walks away from his post on several occasions, or is focused on adjusting the angle of the umbrella above him or adjusting the jacket on the back of his chair. Even when he faces the pool, he exhibits no head movement necessary to scan the pool in front of him and is oblivious to Yoni floating face down only a few feet in front of him. The other lifeguard twice deserts his post: once to get a shirt and later to get a soda. The second time he leaves, he walks the entire length of the pool, past Yoni floating face down in the pool, and does not return until after Yoni is pulled out of the pool. After Yoni’s struggle turned to minutes of motionless floating, children in the pool see Yoni’s condition and call out for help. Even then, the closest lifeguard still takes no notice of Yoni’s situation until one of the counselors – who was supposed to be watching the children but instead was sunning herself on a lounge chair behind him – taps him on the shoulder and points toward Yoni’s body immediately in front of him.
As outrageous as the dunking and the delay in pulling Yoni from the pool were, he still could have been saved had proper CPR been administered. COAC, however, did not enforce its own rule that all aquatic personnel have current child/infant CPR certifications, and neither the lifeguard nor the aquatics director that performed CPR on Yoni had that certification. The CPR performed on Yoni was haphazard and totally inadequate. In addition, COAC did not have proper resuscitation equipment on site, equipment that could have saved Yoni’s life.
Cappello & Noël have pursued the matter for over three years, first attempting to make the district attorney prosecute a criminal case, and later as a civil action. Cappello & Noël also created a website for Yoni, both as a memorial to Yoni and to draw attention to the serious safety issues that exist in camps and child care facilities. That website, yonigottesman.com, tells the story of Yoni’s short life and his tragic death. It describes the mission Yoni’s parents and Cappello & Noël have undertaken to improve child safety in these situations. It also encourages people to act if they become aware of dangerous conditions at a camp or child care facility.
The civil trial commenced on March 24, 2009. On April 27 and 29, 2009, after a 5 1/2 week trial, the jury returned verdicts against the defendants for compensatory and punitive damages totaling more than $16.2 million. The jury not only awarded damages for negligence, it also found that the key defendants committed willful misconduct, and that they acted with malice, oppression and fraud.