No one saw the deceased drown; no one could prove what happened. Campground was not liable for death of a swimmer.

Legally if a tree falls in the woods and no one is around to see it fall it does not make any noise.

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

State: Connecticut, Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport

Plaintiff: Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro

Defendant: Odetah Camping Resort, Inc.

Plaintiff Claims: failure to provide lifeguards and knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.

Defendant Defenses: No proximate causation

Holding: for the Defendant

Year: 2015

The defendant is a camping area that allows day users in order to access other recreational opportunities at the campground.

The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. T

The plaintiff and friends entered the defendant’s campground and paid an entrance fee. The campground was adjacent to a large lake. There was a swimming area on the campground and roped off in the lake. Outside of the roped area were two large inflatable platforms, one described as a trampoline and the other described as an “iceberg.”

There were no lifeguards at either the defendant’s pool or the lake area. A single sign was posted that warned that there were no lifeguards at the lake.

The plaintiff and a friend entered the designated swimming area for the purpose of swimming out to the trampoline. The trampoline was just beyond the buoy line. The friend made it to the trampoline. However, the plaintiff, deceased never did.

When it was noticed he was missing 911 was called. A firefighter found the deceased floating just below the surface inside the swimming area. A postmortem autopsy determined the cause of death to be “asphyxia due to submersion.”

No one saw the deceased struggling or in distress, and no one saw him drown.

The case went to trial on two theories:

The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.

The jury returned a verdict based on the second issue. The defendant filed an appeal.

Analysis: making sense of the law based on these facts.

Under Connecticut law to establish a basic or prima facie case, the plaintiff must:

[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] favor.

To win its case the plaintiff must prove negligence.

“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.”

The defendants’ defense was no one saw the deceased drown. There was thus no proof of causation.

Interrogatories were provided to the jury. Interrogatories are questions the jury must answer in reaching its decision or in deciding the case. The interrogatory answers seemed to focus on the fight the owner’s manual of the trampoline warned that users should wear life jackets. Life jackets were available to swimmers in a shed on the beach; however, they were not required to be worn.

The plaintiff hired an expert witness who opined that the defendant campground was liable for failing to have safety measures in place, failing to have life guards and failing to have an emergency safety plan. However, these breaches of duty, if true, still had no link to how the decedent died. There was no way to say having one of the missing items identified by the expert witness was not proof that the plaintiff might have lived. “To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct…”

The court reversed the jury’s decision because there was no evidence of what happened to the plaintiff. Consequently, there was no relationship, no causal link between the failures to require life jackets to the deceased’s death.

The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.”

The appellate court reversed the jury findings.

Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what caused this drowning is fatal to the plaintiff’s case.

So Now What?

It is sad when someone dies. However, just because someone dies or a bandage is used, does not mean there is liability and the need to write a check. There must be a connection between something the defendant did wrong and the injury to the victim.

That connection in Connecticut must be an unbroken string of events linking the plaintiff’s injuries to the defendant’s conduct.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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