Saturday, November 21, 2009

Current
Weather
51°F

Jury will rehear drowning case

Appeals court: Judge erred by barring issue of suffering of Crofton child

By SCOTT DAUGHERTY, Staff Writer

Published 07/09/09

A county jury will decide if a 5-year-old boy suffered three years ago when he drowned at the Crofton Country Club.

Joshua McKerrow - The Capital
Tom and Debbie Freed speak at a June fundraiser for an organization set up in memory of their son, Connor, who drowned in 2006 at the Crofton Country Club. The Court of Special Appeals ruled Monday that a jury will decide if the boy, in the pictures in the background, suffered when he drowned, a factor the jury was prevented from considering in the first trial.

It will be the second civil trial involving the June 22, 2006, death of Connor Freed, after the Court of Special Appeals ruled Monday that a county Circuit Court judge was wrong in 2007 when she prevented a jury from considering such evidence.

"This is a jury issue," said Andrew H. Baida, an appellate attorney representing Connor's parents, Thomas Freed and Debra Neagle Webber. "A jury should be allowed to decide to what extent (Connor) suffered conscious and emotional and physical harm prior to drowning."

The first jury ultimately found D.R.D. Pool Service Inc. was negligent in Connor's death. It ordered the company, which managed the club's pool that summer, to pay each of the boy's parents slightly more than $2 million in damages. State law, however, capped the judgment at $1 million.

Any damages awarded as a result of this new trial would most likely be subject to a separate $650,000 cap, attorneys said. However, another award would supplement - not replace - the original $1 million award.

H. Briggs Bedigian, another attorney representing the parents, said his clients plan to put most of the money toward the Connor Cares Foundation, which is dedicated to preventing future pool drownings by encouraging more lifeguard education and stronger laws to regulate how pools are managed.

A secretary for Steven R. Migdal, the pool service's attorney, said he declined to comment on the appellate case. A representative from D.R.D. Pool Service's headquarters in Hunt Valley could not be reached.

Connor drowned about 4:30 p.m. at the country club. Paul Carroll, a family friend, took Connor to the pool that Thursday, but lost track of him when he took off the boy's life vest and let him go to the restroom. No one noticed Connor return to the pool - which had about 35 people in the water - until he was discovered facedown and unconscious.

Connor was taken to Anne Arundel Medical Center in Parole by ambulance and went into

cardiac arrest on the way there, county Fire Department officials said. He was pronounced dead at 5:38 p.m.

The Freeds filed a $20 million wrongful death lawsuit about one month after their son died. The lawsuit alleged D.R.D. Pool Service did not have enough lifeguards on duty the day their son died and that the company failed to properly train the employees they had on the payroll.

D.R.D. Pool Service argued in pretrial motions there was no evidence Connor suffered, since no one saw him drown.

Circuit Court Judge Nancy Davis-Loomis agreed. Pointing to another case, Davis-Loomis said she needed an "objective measure" to justify putting the question to the jury.

The Freeds appealed the judge's decision regarding pain and suffering, as well as the constitutionality of the state's cap on damages.

The appellate court said Monday a jury should be allowed to consider whether the boy suffered, but rejected the parent's claim that the cap is unconstitutional.

In a unanimous decision, released on what would have been Connor's ninth birthday, Judge James P. Salmon noted the testimony of a medical expert hired by the Freeds.

Jerome H. Modell, a Florida physician who has studied drowning, said a person's larynx will clamp shut if he tries to breath under water. The victim's diaphragm, however, will continue to try to pull in air - building a "tremendous negative pressure" in his chest.

"This causes a great deal of pain and discomfort ... and this process lasts for a minute and a half to two minutes," he said.

Salmon said a jury could make a "reasonable inference" from that testimony and other evidence that Connor "experienced fear or fright or conscious pain."

YOUR COMMENTS

RULES OF PARTICIPATION

If you encounter other problems, please email ewiffin@capitalgazette.com and include your name, username, and any errors or messages that are displayed. The more information you can provide, the better able we will be to assist you.

In order to post or vote on a comment, you must be signed in with a hometownannapolis account.

Take a look at a summary of Commenting Guidelines.

Report Abuse or Vote In order to allow the user community the ability to collectively rank the value of comments posted on the Capital Gazette websites we have implemented a thumbs-up/down system. All logged-in users may participate by voting up/down each comment. If others vote on your comment, your individual score will go up/down depending on the votes. Initially, everyone starts with a score of zero, and must earn credits to have significant voting weight. Individuals with higher scores will have more voting weight. 0

Erik J. - 2009-07-12 23:19:55

It has been a few years since I studied torts, but I don't think that the family friend had the same duty of care. The lifeguards are contractually obligated however to watch for these types of things. Also, there is a reasonable expectation that if the pool is staffed by life guards that they are going to do their jobs and watch out for these types of things. I am proud to say that no one ever died on my watch and that I once even saved a woman.

unhide Comment hidden due to low ranking. Why is this comment hidden?

William Cooke - Baltimore, MD - Karma: Neutral

Erik J. - 2009-07-10 12:00:21

I agree with you Erik J., what about the person who was the one that took on the responsiblity of this little boy? Who lets a 5 year old go to the restroom in a public place like this alone anyhow? If not worrying about him drowning, how about pedophiles?

unhide Comment hidden due to low ranking. Why is this comment hidden?

Michelle B. - Edgewater, MD - Karma: Good

Blame Who? - 2009-07-10 11:16:01

Any responsible parent/guardian knows you don't let a child by himself alone at a pool for a split second.The pool company is not all to blame! Seems the parents are always looking for publicity for themselves.They should stop blame game!

unhide Comment hidden due to low ranking. Why is this comment hidden?

Robert H. - , - Karma: Neutral

Insensitive Remarks - 2009-07-10 10:28:58

You can tell by some of these comments that these individuals apparently are not parents and are only revealing their own corruptness to suggest that a five year old boy would have knowledge of gang symbols. And how does the appearance of a parent give a person the right to comment on the use of money in such a horrific case. Shame on you! I bet Connors Mom looks better than most when she has to push herself to get out of bed each morning knowing that she will not have another moment of seeing her beautiful Connor coming up to her for a hug and seeing his remarably beautiul eyes. I am dismayed by the insensitivty of those who feel it is ok to judge....have you walked in their shoes? Keep in mind that possibly someone you know could be saved by the tireless efforts the parents have donated to make sure pools are safe for everyone!

unhide Comment hidden due to low ranking. Why is this comment hidden?

Lynn A. - Maryland, MD - Karma: Neutral

K.F. No Winnwers - 2009-07-10 08:33:36

"Drowning is a silent event that happens in the blink of an eye." Drowning does not happen in a blink of an eye. I am sure you can hold your breath more more than a blink. Somebody should have seen this Connor.

"This causes a great deal of pain and discomfort ... and this process lasts for a minute and a half to two minutes," he said.

unhide Comment hidden due to low ranking. Why is this comment hidden?

Jason E. - Centreville, MD - Karma: Neutral

G Reich - 2009-07-09 19:55:12

Gang Symbols? What gang flashes the peace sign...PETA?

unhide Comment hidden due to low ranking. Why is this comment hidden?

Johnathan Locke - Edgewater, MD - Karma: Excellent

Are you kidding???? - 2009-07-09 19:18:13

Jamie, that is the most thoughtless comment you could make. Debbie lost her son in a tragic accident. I've known her since junior high school and she looks just like she did then, just a little older and wiser, like all of us. Could if be that you're jealous that you don't/didn't look this great in your early 40's?!? Keep your petty, mean spirited comments to yourself. Furthermore, if you read the article, if clearly states that the money goes to the Connor Cares Foundation.

unhide Comment hidden due to low ranking. Why is this comment hidden?

L J. - Lakewood, CO - Karma: Neutral

No Winners - 2009-07-09 17:39:01

This case is certainly a tragedy and who cannot help but feel the pain of the parents, the neighbor, and every young teen who sat on the lifeguard stand that day. Every one must play the game of "what if" in their head over and over again. "What if" we had not let our child who could not swim go to a swimming pool without our direct supervision, "What if" I had accompanied the child in to the bathroom and waited for him to finish, "What if" I had seen the child struggle for a split second before he slipped silently under the water. This was an accident, a horrible accident. Drowning is a silent event that happens in the blink of an eye. Let us never lose our respect for the quick death that water can bring to even the most experienced swimmers, but especially to the young child - swimmer or non swimmer. How much money heals the wound?

unhide Comment hidden due to low ranking. Why is this comment hidden?

K F - Severna Park, MD - Karma: Neutral

DRD - 2009-07-09 16:39:40

I used to work for DRD, years ago, as a life guard. It is a great company that does its best to prevent things like this from happening. I am sad to read this.

unhide Comment hidden due to low ranking. Why is this comment hidden?

William Cooke - Baltimore, MD - Karma: Neutral

Just wondering - 2009-07-09 16:10:59

Did the parents also sue the family friend that was supposed to be watching the boy? He took off the life jacket, and then lost track of this 5 year old child long enough that he not only finished using the bathroom, but got back into the water and was in there long enough to drown. Sounds extremely negligent to me. I understand accidents happen, but if the parents want to hold the pool liable for not seeing and protecting their son, shouldn't they hold their friend to the same standard?

unhide Comment hidden due to low ranking. Why is this comment hidden?

Erik J. - , - Karma: Neutral

Brought up the right way. - 2009-07-09 14:35:39

Nice to see a five-year-old flashing gang symbols.

unhide Comment hidden due to low ranking. Why is this comment hidden?

G. Reich - Annapolis, MD - Karma: Neutral

What will the money be used for? - 2009-07-09 14:01:47

Looks like somebody has had WAY TOO much plastic surgery. I sure hope this is not what the money from the lawsuit will be used for. Quit why you are a head babe.

unhide Comment hidden due to low ranking. Why is this comment hidden?

Jamie H. - Annapolis, MD - Karma: Terrible