Tort/Negligence – Dual-Role Requirement for Lifeguards – Standard of Care

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There was plentiful evidence that Lack’s Beach Service repeatedly and knowingly breached the standard of care for professional lifeguards in multiple ways.

We affirmed the judgment of the trial court.

In this wrongful death action involving a drowning, Lack’s Beach Service appealed a jury award of approximately $20 million in damages to Meswaet Abel and her four children.

Among other things, Lack’s argued the trial court erred in denying its motions for a directed verdict and JNOV because the dual-role arrangement for its lifeguards was expressly permitted by its contract with the City and pursuant to section 5-7-145 of the South Carolina Code (2004). Further, Lack’s asserted “the applicable standard of care in this case was set forth in the Franchise Agreement.” It also argued Abel did not produce any direct evidence that would “allow the jury to conclude that the relevant lifeguards were engaged in commercial activity at the time of the drowning.” We disagreed. Although the Franchise Agreement appears to acknowledge that some of Lack’s lifeguards would engage in a dual role because it specifically provides for a subcategory of “Lifeguard Onlys” (LGOs), it merely implies that dual roles will exist; it does not “expressly” approve the dual-role set up. Additionally, the Franchise Agreement does not set forth any standards or guidelines for how Lack’s dual-role employees should perform their duties.

Abel presented expert testimony regarding the standard of care for professional lifeguards and asserted that Lack’s breached that standard by requiring its lifeguards to sell merchandise and clean the beach in addition to their lifeguarding duties. Abel further presented bystander testimony that the L-22 lifeguard was sitting on the back of the stand, facing away from the ocean, talking to two people near the “umbrella line” five to ten minutes before bystanders rendered aid to Abel’s fiancé. Abel also introduced sales revenue data showing that the lifeguards at L-20, L-21, and L-22 made approximately $1,100 in combined sales on the day of the incident. Moreover, Abel introduced evidence of correspondence between Lack’s and USLA regarding Lack’s certification. Significantly, based on the correspondence alone, we found the jury could conclude that Lack’s knew the dual-role requirement was an unsafe practice and in violation of the accepted standard of care in the industry. Therefore, we held the trial court properly submitted to the jury the issue of whether the lifeguards’ dual role breached the standard of care and was a factor in the death, and we affirmed the denial of the JNOV and directed verdict motions as to this ground.

Lack’s argued the trial court erred in denying its motions for a directed verdict and JNOV because the evidence failed to establish that Lack’s breached the standard of care or proximately caused the drowning. We disagreed. Although Lack’s disputed whether it did in fact provide sufficient coverage for the vacant stand, we found the evidence was such that it could yield “more than one reasonable inference,” and therefore, we affirmed the denial of the motions for a directed verdict and JNOV on this ground.

Lack’s argued the trial court erred in submitting Abel’s survival claim to the jury because there was no evidence of conscious pain and suffering. We disagreed. Although we could not locate any South Carolina cases directly on point, common sense dictates that the struggle to “escape the drowning” is, in fact, part of the active drowning process. Further, we could not locate any authority supporting Lack’s proposition that expert testimony is required in South Carolina in order to submit the issue of pain and suffering to a jury. Thus, we held the testimony from eyewitnesses to the drowning was sufficient to submit the survival claim to the jury.

Finally, Lack’s argued the trial court erred in refusing to grant a new trial absolute as a result of the jury’s $7-million-dollar punitive damages award because Abel “did not identify any willful, wanton, or reckless action by Lack’s.” It further asserts that because Lack’s presented evidence that it had a negative net worth, the punitive damages award amounts to “economic bankruptcy” and demonstrates the jury had an improper motive. We disagreed. There was plentiful evidence that Lack’s repeatedly and knowingly breached the standard of care for professional lifeguards in multiple ways; thus, there was sufficient evidence to submit the issue of punitive damages to the jury.

Affirmed.

Abel v. Lack’s Beach Service (Lawyers’ Weekly No. 011-028-25, 24 pp.) (Matthew P. Turner, J.) Appealed from Horry County Circuit Court (Kristi F. Curtis, J.) C. Mitchell Brown and Blake Terence Williams, both of Nelson Mullins Riley & Scarborough, LLP, of Columbia; Joseph DuRant Thompson, III, of Hall Booth Smith, PC, of Mount Pleasant; and Elizabeth Fulton Morrison, of Whelan Mellen & Norris, LLC, of Charleston, all for Appellant. William Mullins McLeod, Jr., and Harry Cooper Wilson, III, both of McLeod Law Group, LLC, of Charleston; George Murrell Smith, Jr., of Smith Robinson Holler DuBose Morgan, LLC, of Sumter; Austin Tyler Reed and Frederick Newman Hanna, Jr., both of Smith Robinson Holler DuBose Morgan, LLC, of Columbia; and John Christopher Pracht, V, of Pracht Injury Lawyers, LLP, of Anderson, all for Respondent. South Carolina Court of Appeals