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STATE OF MICHIGAN COURT OF APPEALS

KATHLEEN RYAN, Personal Representative of the Estate of PATRICK D. RYAN, Deceased, Plaintiff-Appellant, v LAMPHERE PUBLIC SCHOOL SYSTEM, CYNTHIA J. PENN, JOHN A. NICHOLS, and AUDREY MARSHALL,1 Defendants-Appellees.

UNPUBLISHED March 16, 2010

No. 286741 Oakland Circuit Court LC No. 2007-081952-NO

Before: K. F. Kelly, P.J., and Jansen and Fitzgerald, JJ. PER CURIAM. Plaintiff appeals by right the circuit court's opinion and order granting summary disposition in favor of defendants. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. I Plaintiff's decedent, Patrick Ryan (the decedent), was a cognitively impaired 23 or 24year-old male who also suffered from a seizure disorder. The decedent attended school at the Lamphere Center, a school for 18 to 26-year-old students with physical and cognitive disabilities from throughout Oakland County. Lamphere Center is located at Paige Middle School in the Lamphere Public School System. Despite his disabilities, the decedent engaged in sporting activities, including swimming, and participated in the Special Olympics. The decedent's Special Olympics practice sessions took place at the Paige Middle School swimming pool. During a Special Olympics practice session on April 15, 2005, the decedent drowned in the swimming pool.

Defendant Marshall's name is spelled as "Audrie Marshal" on this Court's docket sheet and variously as "Audrie Marshal" and "Audrey Marshal" on other papers contained in the lower court file. However, she testified at her deposition that the correct spelling of her name is "Audrey Marshall."

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Defendant John Nichols was a substitute teacher at the Lamphere Center at the time of the decedent's death. Nichols had originally been hired as a paraprofessional and had begun "helping out with Special Olympics" at that time. Later, in approximately 2002, Nichols became a substitute teacher at the Lamphere Center and took on the role of a full-time coach for the Special Olympics. Nichols testified that the Special Olympics practice sessions were typically held three days a week at about 11:00 a.m. "because [the Special Olympics] had to work around" the class schedule at Paige Middle School. Defendant Cynthia Penn was employed as a paraprofessional at the Lamphere Center at the time of the decedent's drowning. When Penn first began working at the Lamphere Center, she volunteered to help with the Special Olympics basketball program. However, after being employed at the Lamphere Center for about a year or two, Penn began working with the Special Olympics swimming program. For most of the school day, Penn was assigned to a classroom with a teacher, two other paraprofessionals, and approximately 15 students. But she assisted with Special Olympics swimming practice at 11:00 a.m. about three days a week. Defendant Audrey Marshall was a student at Lamphere High School at the time of the decedent's death. Marshall was on the Lamphere High School swimming team and was a certified lifeguard. She had been certified as a lifeguard through the American Red Cross in approximately 2003. Sometime in 2004, Cynthia Penn approached Marshall and another Lamphere High School student and asked them whether they would be interested in volunteering as lifeguards during the Special Olympics swimming practice sessions. Marshall and the other student agreed, and began volunteering as lifeguards during the Special Olympics practice sessions approximately two or three times per week. Marshall was not paid for the time she spent lifeguarding at the Special Olympics practice sessions. Penn, Nichols, and Marshall were present at a Special Olympics swimming practice session on April 15, 2005. Nichols and Penn testified that there were 12 students in the swimming pool that day, including the decedent. According to Nichols, the practice session began as usual, with the students warming up by swimming laps. After everyone had finished warming up and swimming laps, Nichols went to work with some students in the deep end of the pool, while Penn went to work with some other students on the side of the shallow end of the pool. Penn testified that she spoke to the decedent, who was swimming in the shallow end, concerning some relay races in which he was going to participate. After speaking with the decedent, Penn stepped away from the area where the decedent was swimming and "took a step to the side just to talk with the next relay team." Penn never saw the decedent leave the shallow end, which is where he remained throughout. At that time, Marshall was scanning the pool as she had been taught to do. She then bent down to help one of the students re-buckle his floatation device, which had become undone. Penn testified that it had only been "a few seconds" since she had last spoken to the decedent when she again looked in his direction. It appeared to Penn that the decedent was standing on the bottom of the shallow end with his face submerged in the water. Penn did not initially believe that anything was wrong, but because the decedent was standing in the middle of one of the relay lanes, she called out, "Patrick, you need to move." Penn also asked another student swimming near the decedent to tap him on the head and get his attention. However, the decedent did not respond to Penn's call or to the tap. At that time, Penn jumped into the water and turned the decedent over. The decedent did not respond at all. According to Penn, when she -2-

jumped into the water, Nichols was still in the deep end of the pool and Marshall was still on the side of the pool with another student. Marshall testified that after she finished helping the student with his floatation device and stood back up, she noticed that Penn had jumped into the pool. She looked toward the shallow end and saw the decedent face down. Marshall went to the shallow end at that time. Nichols testified that he noticed Penn jumping into the pool and knew that something was wrong. He got to the shallow end quickly, and was there by the time Penn was turning the decedent over. Nichols lifted the decedent out of the water. Marshall testified that it took only seconds for Nichols to reach the shallow end and to remove the decedent from the water. Nichols and Marshall began to perform CPR while Penn called 911 from a nearby telephone. Marshall estimated that it had been only "15 seconds, maybe 25 seconds," from the time Penn jumped into the shallow end until the time CPR was commenced. According to the police report filed in this matter, "Penn and Nichols stated they had turned away from the victim for 1 to 2 min[utes] and when they turned back to him [he] was floating face down in the water." According to the relevant deposition testimony, Nichols cleared the decedent's airway and Marshall checked for a pulse. Nichols performed rescue breathing while Marshall performed chest compressions. Nichols testified that the decedent vomited, that he again cleared the decedent's airway, and that he continued to perform rescue breathing. Nichols testified that he and Marshall continued performing CPR even after the paramedics arrived, because the paramedics "had asked us to continue while they were setting up." Nichols could not remember how long it took for the paramedics to arrive on the scene after Penn called 911. Nichols confirmed that he had never seen the decedent panicking or thrashing about in the water, and that no one had even known that anything was wrong until Penn jumped into the shallow end of the pool. Nichols recalled that this had occurred at about 11:15 a.m. The decedent was transported to the hospital, where he was placed on life support. Doctors were able to restart the decedent's heart, but he never recovered his brain function. He later died. Oakland County Medical Examiner Dr. Ljubisa Dragovic performed an autopsy on the decedent on April 17, 2005. Dr. Dragovic determined that the cause of death was "anoxic encephalopathy due to near drowning." Dragovic explained that the death resulted from "deprivation of adequate oxygen supply because of the occasion of near drowning . . . ." Dragovic opined that "[i]ndividuals who are unconscious drown very quickly," and that in the case of an unconscious victim, "drowning can actually be accomplished [in] a minimum of 30 seconds." Dragovic noted, "[O]f course, if the resuscitative measures are initiated immediately, there may be artificial [prolongation] of life . . . without brain as it happened in this case." Dragovic explained that the decedent had likely suffered a seizure, become unconscious or semiunconscious, and quickly drowned. Kathleen Martin, the retired Director of Special Services for the Lamphere Public Schools, testified that she was the supervisor of the Lamphere Center at the time of the decedent's death in 2005. Martin confirmed that although the Lamphere Center is part of the Lamphere Public School System, it serves multiple school districts in Oakland County by providing special services for students with disabilities from those districts. Martin testified that the Special Olympics Coordinator is an employee of the Lamphere Public Schools and works closely with the Lamphere Public Schools Athletic Department to schedule the use of school facilities and the various Special Olympics practice times. Martin believed that the Special -3-

Olympics Coordinator, in conjunction with the Athletic Department, was also responsible for scheduling lifeguarding times for Marshall and other student lifeguards. Martin stated that "Special Olympics and the Athletic Department working together" typically handled such scheduling responsibilities Martin confirmed that both Nichols and Penn were Lamphere Public Schools employees who spent part of their time on certain days coaching the Special Olympics. Martin did not specify whether Nichols and Penn were paid for their time coaching the Special Olympics, but did confirm that Nichols's and Penn's Special Olympics coaching occurred on school premises during normal school hours. Martin testified that the Special Olympics practice sessions were "not operated in the same way" as typical Athletic Department activities, and noted that the Special Olympics practice sessions were "extracurricular" and "voluntary." She confirmed that the Lamphere Public School System "doesn't run the Special Olympics," and testified that the school district controls the Special Olympics "[o]nly to the extent that it's done during school hours" and to the extent that the school district "provide[s] the facility for the kids to participate in . . . ." Of note, although Martin did agree with counsel's suggestion that the Special Olympics "was part of the special services that [the decedent] received from Lamphere Center," she thereafter agreed with opposing counsel that the Special Olympics was "not part of the curriculum of the school . . . ." In April 2007, plaintiff sued defendant Lamphere Public School System, as well as individual defendants Penn, Nichols, and Marshall. Plaintiff's complaint set forth only one count, against all four defendants, entitled "Gross Negligence." Plaintiff listed several ways in which defendants were allegedly grossly negligent. Among other things, plaintiff alleged that the Lamphere Public School System was grossly negligent for failing to have adequate safeguards in place at the swimming pool to prevent drowning, for failing to have adequate staff present, for failing to have proper rescue equipment at the pool, for failing to train and hire enough lifeguards, and for failing to implement a pool supervision plan for swimmers with special needs. Among other things, plaintiff alleged that the individual defendants were grossly negligent for failing to timely recognize that the decedent was drowning and in need of help, for failing to properly watch and supervise the decedent while he was in the water, for failing to timely remove the decedent from the pool, for allowing the decedent to submerge his face below the water of the shallow end, for failing to timely administer CPR and other lifesaving methods, and for failing to follow standard protocol for the prevention of drowning. Plaintiff retained drowning expert Dr. Jerome Modell, and submitted a report that he prepared for use in this case. Modell disputed Dragovic's conclusion that the decedent could have drowned in as little as 30 seconds. Contrary to the testimony of Penn and Nichols, Modell believed that the decedent had been under water for much more than "seconds." He opined that if the decedent "had been retrieved and resuscitated, as necessary, within 1

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