Governmental immunity applies in drowning case regardless of gross negligence.

Byline: Kelly Caplan

Where a disabled man drowned in a swimming pool at a community center operated by the City of Troy, the city is entitled to governmental immunity regardless of any gross negligence of its employees, a panel of the Michigan Court of Appeals has ruled.

The panel reversed the trial court's orders denying defendants' motions for summary disposition, but remanded to provide plaintiff an opportunity to seek leave to amend her complaint.

The unpublished per curiam opinion, Estate of Tschirhart v. City of Troy (MiLW 08-101748, 9 pages), was issued by Judges Karen M. Fort Hood, Deborah A. Servitto, and Mark T. Boonstra.

Plaintiff's counsel Mark R. Bendure, of Bendure & Thomas in Grosse Pointe Park, said he and his client are considering their options in going forward.

"I am troubled that the court declared that the inattention of the guards could not have been a proximate cause when there has been no discovery about how the drowning occurred, why the guards were inattentive, how long it took before the decedent could no longer be saved, and a variety of other important details necessary to make an informed decision on causation," he said.

Julie Quinlan Dufrane, assistant city attorney for defendant City of Troy, could not offer comment due to the remand and the potential for continuing litigation.

Background

Thirty-two-year-old Shaun Tschirhart, who had a history of epilepsy, was participating in a recreational program for disabled adults provided by the City of Troy at a swimming pool at the Troy Community Center.

Tschirhart submerged himself in the pool and likely suffered an epileptic seizure. He was underwater for approximately 50 seconds before anyone noticed he was in danger. He was removed from the pool, and it was approximately 90 seconds before defendants started CPR, according to the COA opinion.

Tschirhart was taken by ambulance to a hospital where he was pronounced dead. The medical examiner determined the cause of death was "drowning due to epileptic seizures disorder."

Plaintiff sued the City of Troy, the lifeguards on duty, club attendants, and the pool manager for wrongful death in Oakland Circuit Court, alleging they were grossly negligent in failing to supervise and timely intervene.

Defendants moved for summary disposition, arguing they were entitled to immunity under the governmental tort liability act (GTLA), and further alleging that plaintiff failed to plead facts in avoidance of immunity.

Defendant Susan...