That's all they wrote

What you need to know about Sanon v. City of Pella
(Iowa Supreme Court, June 2015)

by Tom Duff, Duff Law Firm

Summary of facts: The City of Pella opened an Aquatics Center in 2004. By late 2004, rust appeared on the back of the lights sockets of the underwater lights in the pool. At that time, City officials decided to stop using the underwater lights even though they still worked. The City did not arrange for additional overhead lighting to compensate for the lack of underwater lighting or hire additional lifeguards. The City continued to rent the aquatics facility for nighttime pool parties twenty to thirty times a year, but did not turn the underwater lights on for these events.

The City sued the contractor who installed the submersible lights. In the course of that litigation, the City hired two expert witnesses to testify on their behalf. Both experts opined that the overhead lighting at the pool did not meet the requirements of Iowa law. The Community Services Director for the City testified at the trial against the lighting contractor that he had personal concerns about allowing his own children to swim in the pool at night.

In July 2010, Nehmson Sanon, age fifteen, and Gael Chrispin, age fourteen, attended an athletic camp sponsored by the Fellowship of Christian Athletes (FCA). FCA rented the Pella Aquatics center for a nighttime pool party. At the time of the pool party the underwater lights were not turned on and the water was so murky that the lifeguards could not see the drain at the bottom of the deep end of the pool. On July 14, 2010, Nehmson and Gael drowned in the City’s pool. The lifeguards eventually found their bodies in the deep end of the pool near the main drain.

The decision will: This decision holds governmental bodies accountable for deaths or injuries in their swimming pools only when their acts or omissions constitute a criminal offense.

Iowa Code §670.14(12) provides cities and counties with complete immunity from injury or deaths for claims “relating to a swimming pool or spa.” The only time this immunity does not apply is if the act or omission of a city employee constitutes “actual malice” or “a criminal offense.” The plaintiffs in Sanon alleged that the City’s actions of allowing the boys to swim in murky water without adequate lighting constituted a criminal offense. The plaintiff used two alternative theories to fit their case within this very narrow exception to complete immunity.

First, the plaintiffs in Sanon directed the court’s attention to administrative regulations relating to pool safety. The regulations require, among other things, that pools have adequate lighting and that no one should be allowed to swim if the main drain is not visible from the pool deck. The violation of these regulations is a simple misdemeanor. The plaintiffs’ argued, and the Court agreed, that when the City of Pella violated these basic safety regulations it committed a simple misdemeanor; in other words “a criminal offense."

The plaintiffs also argued, and both the trial court and Supreme Court agreed, that the City’s conduct was sufficiently egregious to constitute involuntary manslaughter under the criminal code. Thus, if the plaintiffs could prove the elements of involuntary manslaughter the criminal offense exception applied.

The decision won't: This decision does not overturn the broad grant of immunity found in §670.14(12). The statutory exceptions to immunity are narrow and remain so. The ability of the Sanon plaintiffs to fit their case within the immunity exception was largely driven by the wanton disregard for safety shown by the City. It is particularly telling that both the lower court and the Supreme Court found that the facts were compelling enough for a jury to conclude that the city committed involuntary manslaughter.

The Sanon decision also does not subject a city to liability simple because they may have violated a pool safety regulation. The plaintiff must still prove that the violation of the safety regulation was a proximate cause of the injury or death. For example, a city remains immune if there is a broken ladder (a regulatory violation) in the shallow end of the pool if the plaintiff drowned or was injury in the deep end. In the Sanon case, the regulations violated by the City (inadequate lighting and murky water) proximately caused the deaths of the two boys.

What's next: Municipalities will continue to remain immune from suit for deaths or injuries occurring in their swimming pools. Those instances where plaintiffs will be able to fit their case within the “criminal offense” will continue to be limited to those circumstances where a city’s disregard of basic safety rules is both egregious and wanton sufficient to make it a criminal offense.