If a 5 Year Old Drowns And No One Saw It Did He Suffer?

Posted on July 10, 2009 by Greenberg & Bederman

 

“If a tree falls in a forest and no one is there to hear it, what sound does it make?”

That’s an old Zen Buddhist koan (or fable) that is meant to be used as an intellectual exercise. The idea is to ask an unanswerable question, which is supposed to send your mind into a transcendental state.

A version of this koan also appears to be a defense strategy for a law firm in Maryland. It goes like this:

“If a five year old boy drowns in a pool and nobody saw it, did he suffer?”

Whether that strategy sends the minds of a jury into a transcendental state remains to be seen, but we are of the opinion that drowning is a horrible and painful way for someone to lose his life, regardless of whether there are witnesses to that suffering or not.

On June 22nd, 2006, a five year old boy named Connor Freed went swimming with two friends and an adult at the Crofton Country Club. The adult who was in charge of watching him removed Connor’s life jacket so the child could use the bathroom. The adult continued to watch the other two boys. Unbeknownst to the adult, Connor came out of the bathroom and ended up in the crowded pool without his life jacket, where he drowned.

 

As bad as that sounds, the trial was even worse. Connor’s parents, Thomas Freed and Debra Neagle Webber, were awarded $2,000,000 apiece for their loss, but Maryland’s cap on non-economic damages automatically lowered the award to $1,000,000. Since it is doubtful that a five year old boy is much of a money earner, $1,000,000 is all that the death of a child is worth in Maryland. That verdict was secured without much of a struggle. The child was found floating face down, with no hue and cry raised by the lifeguards or anyone else.  It is clear that the lifeguards were not doing the important job that they were hired to do.

But even with that insulting, arbitrary limit on the worth of the child, what is now at issue in this case is that the company in charge of pool maintenance and providing the lifeguards is claiming that since nobody actually witnessed the child drown, there is no evidence that he suffered. This is important, because the estate of Connor Freed is attempting to secure compensation for pain and suffering, not for the pain and suffering that the parents went through (which we imagine is considerable,) but for the pain and suffering that Connor Freed went through when he drowned. After an initial ruling by an Anne Arundel County circuit judge agreed with that defense and ruled that there was no reason to put the question of Connor’s suffering in front of a jury. Connor Freed’s parents appealed that ruling and won, and now the matter of this five year old boy’s painful death will finally be heard.

It seems absurd to say that suffering does not exist if nobody is there to see it. And the idea that drowning is an easy and peaceful way to die seems equally absurd. An article from Illinois Parks and Recreation which includes an interview with a drowning survivor puts that myth to bed directly:

"...When the cramp hit me, I sank to the bottom of the lake 12 feet down, in a doubled-up position. Compounding the wracking pain in my trunk was a mounting choking sensation. (Try holding your mouth and nose after taking a deep breath. Hold your breath until it becomes unbearable; then try holding it a few seconds past the unbearable point. It's a horrible sensation and would give you a dim idea of just one aspect of how it feels to drown.) The pressure of the water caused a stabbing pain in my eyes and ears... try to keep your head when water begins to seep into your already tortured lungs and your body is a mass of pain and you know you are dying... I remember that I screamed down there against a solid wall of water. I remember that I threshed and bobbed, but only succeeded in burrowing my head into the slime of the lake floor...."

That does not sound like a painless way to die.

According to the Center for Disease Control, there is an average of ten drowning deaths per day in the United States. Among children ages 1 to 14, drowning is the second leading cause of unintentional injury-related death. It is not a freak occurrence, and it certainly is not something that happens without suffering.

We can only hope that the jury that is seated to hear this case will see things the same way.

If you or a loved one has been injured due to a case of negligence in Maryland, Virginia or Washington, D.C., contact Greenberg and Bederman for a free legal consultation today.

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