No charges have been filed against a father and a homeowner after two children died in a swimming pool. According to authorities who investigated the situation, it was a tragic accident that led to their death. The children were allowed to dive into the pool using scuba equipment including a scuba tank. Somehow, the tank was not filled with air, but rather helium. The children could not breathe and were thus drowned. The parent and homeowner were not watching as the children struggled for their lives.
While criminal charges against parents who allow their children to die of neglect do occur, the prosecution must establish culpable negligence which has a higher standard of proof than simple negligence in personal injury lawsuits. Culpable negligence requires the willful disregard for the health and safety of another party. In terms of parents, this can include neglect, abuse, and other conduct which results in preventable injury. Part of the proof for culpable negligence is foreknowledge. In this case, the prosecutors did not see enough reason to believe that the individuals could have predicted that the tanks would be filled with helium instead of air.
Family demands the case be reopened
Family members who were not there when the children were killed expressed outrage that no one is being held accountable for this tragedy. Prosecutors stated that while they sympathize with the aggrieved parties, there is no basis in law to pursue a criminal prosecution. Civil attorneys for the mother were privy to a discussion with family members to address concerns. Prosecutors released a statement that the criminal justice system was not the proper forum to hold any of these parties accountable.
Nonetheless, the owner of the pool has a serious problem. He handed two children tanks filled with helium to prevent them from drowning. That is a negligent act, perhaps even a grossly negligent act. The family can file a lawsuit against the property owner and name the father in the suit as well. Ultimately, this will be their only avenue of recovery.
Torts involving wrongful deaths would be filed against the property owner directly. The property owner’s homeowner’s insurance policy would cover some of the claims, perhaps up to $100,000 depending on the policy. The rest of the judgment would be entered directly against the homeowner who would then be on the hook for the remainder. The homeowner, however, could discharge the judgment in bankruptcy but they would likely have to liquidate valuable assets to do so.
Ultimately, there is no good resolution to this and many questions remain unanswered. While the prosecutor’s office has declined to press criminal charges, there is no clear explanation for how the helium ended up in the scuba tank. Non-recreational divers employ a mixture of helium, nitrogen, and oxygen but only to achieve depths of over 30m. Never would you find only helium in a scuba tank.
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