Lawsuit for Summer Camp Drowning

The Gottsman family has filed a lawsuit over the death of their son Yoni Gottsman. Yoni was four years old at the time of his death while attending a summer camp at the Cathedral Oaks Athletic Club. The young boy was found floating face down in the pool. Based on surveillance video the family, through their attorney, claims there was no supervision at the pool. The lawsuit is claiming negligence, wrongful death and willful misconduct. The complaint alleges the life guards did not receive proper training and did not watch the campers well enough although this statement seems to be at odds with the claim that there was no supervision at the pool.

What stands out is the statement by the attorney for the plaintiff that claims the defendant “falsely advertised itself as a safe and secure environment for kids.” This is the second article in as many months claiming the statements made on the web gave rise to the lawsuit. See Children suing health club over death of parent: Mother was 70 and had heart disease. Remember: The promises made in your marketing are what you are forced to defend when you are on the stand in a lawsuit.

Surveillance video is so common that we ignore it now days. The allegations in the complaint are the video shows a counselor dunking the deceased before he drowned.

What seems to have triggered the anger leading to the lawsuit was the refusal of the district attorney to file criminal charges in the matter. There is a clear misunderstanding of the differences between criminal law and civil litigation. This desire to prosecute is reinforced in statements made by the plaintiff’s attorney who says they intend to dig up evidence to bring the case back to the district attorney.

The plaintiff’s attorney is probably paid based on what he recovers. He will not be paid to dig up a criminal case.

See Lawsuit filed in drowning death at Cathedral Oaks and Family Files Lawsuit After Summer Camp Drowning.

Lawsuit is coming, Anger has not subsided

An alleged fault aids in creating basis for dealing with anger

Numerous stories have been reported by WKBW TV of Buffalo New York over the death of a young girl who fell in a river on a field trip at a “summer camp.” The summer camp was allegedly not licensed by the state to operate as a summer camp.

The field trip occurred by the Niagara River where the 12 year old girl fell into the river. Her body was not found for several days.

The TV station reports have focused on the families repeated statements about demanding justice. The case is also gaining headlines because the district attorney is looking into the case. The district attorney has still not filed charges in the case.

The TV station has filed five stories over the incident and the word justice was a key word in three of the five articles and two of the five headlines. However a civil lawsuit is not going to give the families justice.

The family believes, like most Americans that the court system can solve all problems. It can’t. The courts in 99.9% of the cases can only move money from one side of the courtroom to the other, or in some cases prevent the movement of money. The courts cannot provide justice, answers, satisfaction, relief, absolution or help anyone overcome the loss of a loved one.

However a good plaintiff’s attorney can convince the family that justice is achieved if money is received. Besides, by the time a settlement or trial occurs the family will be so tired and destroyed that anything to get the case over can be turned into justice. See Litigation costs a lot of money.

Money is not justice, especially in a civil lawsuit. Most times the money comes from an insurance company who cares, at best about the loss, but cares more about the money. So the defendant feels little pain, other than the time and energy to defend the litigation.

Another issue will be tying the failure to obtain state licensing to the loss of the child. It is not negligence to not be licensed. It may be negligence per se, but that still may not relate back legally. What the plaintiff’s attorney must do is find a section of the licensing that would have, if licensed, prevented the girl’s death.

However that will not have to be done well or soon. Breaching a state regulation or statute can always be claimed to be a breach of the standard of care, the first step in proof of negligence. Whether or not the plaintiff’s attorney will be able to tie the legal connection together will depend on how well the connection can be made, how much money it takes to fight the lawsuit, and whether the attorney can convince a jury that the emotional issues out weight the legal issues.

Not one of those steps really deals with the point. Did the defendant do something wrong. That answer will answer the question in the end as to whether the family receives the justice it is seeking.

See (in reverse chronological order) Family of NYC Girl Plan to File Lawsuit, Family of Falls Drowning Victim Demands Justice, Girl Who Drowned in Niagara River, Laid To Rest, Body Identified as Missing NYC Girl, and Parents of Missing Girl Seek Justice.

Litigation and Estate Planning gone wrong

Many businesses will set up complicated structures in an attempt to avoid estate tax, (which is called estate planning) or to make the business less appealing in a possible lawsuit. Both of these are great ideas. Some estate planning ideas work great as litigation prevention ideas and vice versa. In both cases the person who owns the assets is trying to divide them up to make them harder to get and make the entire estate less valuable. In reality, a plaintiff and the IRS are both possible creditors to your income and assets.

There are sometimes other reasons for doing this. These reasons include separating the liability from the assets, making it easier to get loans, lowering insurance costs, or maybe to bring family members or valued employees into the business by giving them an equity position.

One of the issues that always pop up is control. It is difficult to effectively split up an asset so a plaintiff’s attorney or the IRS; possible creditors do not look at it as available. Besides changing the name the real issue is whether or not the original owner, the person who is attempting to lower the value of their estate, still has control over the asset.

The Kerrville Daily Times is reporting in Camp Mystic embroiled in lawsuit about a lawsuit where the original owner is attempting to regain control over his assets. Camp Mystic is a Christian summer camp that has been around for more than 50 years. About 10 years ago the camp was split into two entities. One which owned the land and one which ran the camp. Both entities were owned by the original family members and some new family members. Now they are all involved in litigation arguing they owe each other money, have undervalued or ruined the original asset and in general calling each other names.

If it were not sad, the description of what happened and now who is suing who is almost comical.

At the heart of the litigation is lease payments owed by one entity to the other. To make the split legally effective the parties have to not only go through the process of changing the ownership but must also, if necessary contract with each other. In this case the camp signed a lease agreement to rent the land from the entity that owned the land.

These blog is too short and not directed at providing all of the legal answers to dealing with these issues. However we can point out some simple do’s and don’ts so you can have an idea of how to proceed.

The only entity to use for anything in the future is the Limited Liability Company, an LLC. It requires less paperwork to create and run than any other entity. It still requires paperwork to create, both an organizational agreement which is required to be filed with the secretary of state and an operational agreement which most people skip. If you don’t have an operational agreement, you don’t have an LLC according to creditors and they can have the LLC voided and attack you personally.

An LLC can be taxed the way you want it to be taxed, including taxed as a subchapter S. Subchapter S is not a type of corporation or entity. Subchapter S is how the entity is going to be taxed. Most Subchapter S’s were regular corporations in the past. The name Subchapter S came from the chapter of the IRS regulations that created this taxing scheme. Corporations are taxed under Chapter C and Sub-Chapter S is the Subchapter S taxing scheme for used to be solely corporations and now includes LLC’s.

The worst situation to be in is a Partnership. A partnership is created always when two or more people go into business together and do not create an LLC or a corporation. Partnerships have two major flaws, besides hundreds of minor flaws. The first is any partner act holds all partners liable for his or her actions. One partner in an automobile accident doing partnership business can put all of the other partner’s assets, including their homes at risk. The second is getting divorced is usually cheaper and easier than breaking up a partnership.

Splitting up a business into separate entities is a good idea. Keeping the land, the concession or permit, and the operation in different entities is easy, cheap and helps to make sure no lawsuit will bring the business down. These entities also make it easier in some cases to get loans, to bring family members into the business and to possibly cut estate and other taxes. It may also help move income to individuals or entities with lower tax brackets. Finally it allows you to pick in some cases how the income will be taxed by sending the income to the entity with the type of tax entity you need.

You have to make sure though that you have created the proper relationship between the entities. If you are going to use the land, the entity using the land must lease the land with a proper fair market value lease agreement. An entity that owns major operating assets such as boats, vehicles or machinery must have proper lease agreements back to the operating entity. Both of these entities must receive fair market value lease payments from the operating entity.

There are some better entities to use as a Limited Liability Partnerships or Limited Liability Limited Partnerships but there is not enough time here to get into them.

Anytime you look into these types of planning you must involve your CPA. Also important as evident by the Camp Mystic lawsuit, you have to make sure that you understand who is in control of the entities and how they are going to be operated. Proper paperwork is the key to making sure you don’t lose everything you have worked hard to build.

Town sued over “camp” near drowning

Many community recreation programs have summer camps for the kids in their community. These camps are not the pack a trunk and go to the woods, but a program where the kids are entertained and energized through part or all of the summer in the local recreation program. They may take field trips, but they usually spend every night in their own beds at home. It is a cheap, sometimes free way for parents to not worry about their kids or hire someone to watch them while they work.

Most of these programs have some type of swimming/water activity. In this case the program allowed swimming as part of its program. There were allegedly six counselors, one assistant counselor and five lifeguards on duty when a camper nearly drowned during this program. The camper now suffers from serious brain injury and his parents have sued the town and many of the counselors.

There is an interesting discussion in the article about why the plaintiff sued the individual counselors. Probably because the town that ran the camp has governmental immunity defenses that the individuals do not. However, as an employee, the town is providing the defense of the individual counselors in this action. Again this is a review of a lawsuit by a non-lawyer, being interpreted by a lawyer so the facts are very confusing.

First remember that an injury like this is expensive. There is no way that you can have enough health insurance to cover all of the medical costs. Usually insurance stops, at some point and the home care costs start to rise. This looks like a forever financial nightmare. You cannot buy disability insurance on a minor. To some extent you can understand the reasons for the lawsuit from a financial perspective. The cost to this family in dollars is never going to end.

The emotional cost is also unlimited.

What struck me as tragic, as of these cases are and at the same time very interesting is the statement released by the family.

“On behalf of our son, we have filed a lawsuit because, despite the best efforts of so many dedicated physicians, therapists, and teachers, Chandler has been left with a serious brain injury that affects him every day. This injury was preventable and occurred because of the negligence of people to whom we had entrusted our son.

“However, we are grateful for the support that our family has received from the community in Redding and regret the fact that all of the persons named in our suit needed to be defendants as we had hoped that the town would have accepted responsibility for its employees and this tragic event.

“We understand that the town reviewed and revised its procedures at Topstone after Chandler was injured and that the state of Connecticut has recently undertaken a review of the procedures at all state parks as well. We sincerely hope that these steps prevent another young child from nearly drowning,”

This press release was not written by a grieving family. A few of the lines seem to indicate they had some input into the press release. But overall it just does not sound like what parents of a severely injured young boy would say.

This press release is what occurs when attorneys get involved. Obviously they were involved quite early from the way the article describes the facts. What we don’t know but can surmise is why the attorneys were involved so early. The parents wanted to know what happened. Towns, cities, governmental entities always have risk managers and attorneys and probably the family was stonewalled. Probably the only answers they received were from the police investigation.

If you had a loved one severely injured you probably would want to talk to someone about what happened. If you had a child injured you would want to know what happened. I suspect that this family will never really find out.

However from previous articles you can clearly see the handiwork of several years of law school versus no lawyers in the case. This is a no win situation for everyone.

Marx family is suing town over near drowning