By Doyice Cotten
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The last post dealt with a risk management failure resulting in quadriplegia. This post also involves abysmal risk management – this time resulting in the death of a 62-year-old man (Miller v. YMCA of Cent. Mass., 2016 Mass. Super. LEXIS 323).
Another YMCA member tried to enter the steam room, found it locked, and looked though the window. He saw Thomas Miller lying unconscious on the steam room floor with hot steam blasting his body. He notified the desk; 911 was called and two employees went to the steam room to try to gain entry. Another employee present had a key, but refused to open the door because he was not authorized even though they could see Miller lying there with hot steam scalding him. EMS arrived and they tried to gain entry while Mr. McArthur, the only one authorized to open the door, watched. Finally, five minutes after EMS arrived, McArthur used his key and enabled them to enter.
An employee tried to use a defibrillator but it did not work because the pad was wet from the steam. They had only one pad. Miller suffered second-degree burns over 12-15 percent of his body, had multiple surgeries, but died three weeks later. Suit was filed for violation of the wrongful death statute 1) on behalf of his beneficiaries, 2) conscious pain and suffering, and 3) gross negligence.
In its defense, the YMCA claimed it was protected because it had a danger sign posted outside the steam room instructing clients to not use the steam room alone and Miller had signed a waiver of liability.
Risk Management Failures
- Failure to plan for immediate staff access to the steam room in the event of an emergency.
- No emergency alarm button inside the steam room.
- There was no steam room safety policy.
- No walk through locker room logs (it seems Miller entered the steam room more than an hour earlier).
- No regular staff inspections of the steam room; no inspection logs.
- No risk management classes for employees.
- No working defibrillator (as mandated by state law L.c. 93, section 78A) and the AED had only one pad instead of the usual two.
- The YMCA Director of Operations admitted he was responsible for the day-to-day training and supervision of employees in steam room safety and developing any safety protocol for the steam room at this Westborough branch.
- The YMCA President testified that she was the strategic leader of the facility whose duties included personally supervising staff responsible for safety programs.
- The President further stated that she never participated in the drafting of any safety plan, although she had the final authority to approve or disapprove of major policy changes.
Mr. Miller had joined the YMCA as a member of the Silver Sneaker program. He had signed a waiver that referred to the Silver Sneaker program but the YMCA was not named at all in the document. Hence the waiver provided no protection for the YMCA. The YMCA motion for summary judgment was denied and the case was remanded for trial. The same was true for the other defendants (the President and the Director of Operations).
Even if the YMCA had been named in the waiver, it would not have protected the entity from liability for gross negligence. Whether they will be found negligent or grossly negligent will be determined by the trial court. You can read the following definitions and decide which you think they are guilty of.
- Ordinary negligence is simply failing to act in a reasonably prudent or cautious manner under the circumstances; it involves acting without care or attention to others or to safety and is sometimes defined as the failure to exercise reasonable care.
- Gross negligence is exhibiting substantially less attention or care than that which is required by the circumstances. It is conduct that is just a step away from a reckless indifference or disregard for the probable consequences of one’s actions or omissions. It amounts to indifference to legal duty and utter forgetfulness of legal obligations so far as other persons may be affected. [Taken from the Massachusetts Supreme Court ruling in Altman v. Aronson, 231 Mass. 588, 591-592 (1919.]
The distinction between ordinary negligence and gross negligence is important in Massachusetts because Punitive Damages may be awarded in cases involving gross negligence. Punitive damages are damages exceeding simple compensation and awarded to punish the defendant.
Photo Credit: Thanks to Giglle via Flickr.