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Brain-damaged woman to get $7 million County settling lawsuit in near-drowning blamed on poor safeguards at W. Side pool

Erie County will pay $7 million to a Buffalo woman who suffered brain damage after she nearly drowned in a West Side pool in August 2009.

The payment -- one of the largest of its kind by the county in recent years -- will settle a personal-injury lawsuit that blamed the county for not properly training or supervising lifeguards at the city-owned pool that the county operated at the time.

The woman, Jannette Morales, then 37, was pulled out of the water by her son after he found her floating in the crowded Rees Street pool on a summer afternoon.

Two lifeguards on duty, according to the lawsuit and court documents filed by attorney Jed Dietrich, failed to see she was in trouble and didn't help the son as he tried to rescue her.

County Attorney Jeremy A. Colby said jury verdicts in similar personal-injury cases led county officials to believe that the settlement was less than what a jury might have awarded.

"If this had gone to trial in January when it was scheduled to go to trial, it could very well have been a very high verdict," Colby said.

County Comptroller Mark C. Poloncarz, who will be sworn in as county executive in January, has asked the Legislature to approve borrowing the money to pay the $7 million settlement.

However, county attorneys will likely continue to pursue their claim that it is the city, not the county, that should pay the settlement.

"There is a dispute between the county and city over who should pay the $7 million," Colby said.

At the time of the incident, the city and the county had an agreement in which the county maintained and operated city parks and pools, including the Rees-Allison Pool where the incident occurred. County attorneys have argued that a clause in the contract requires the city to repay the county for the legal settlement.

The city disagreed, and State Supreme Court Justice Frederick J. Marshall sided with the city. County attorneys have filed notice that they plan to appeal that decision and seek to recoup the $7 million from the city. "We agree with the lower court's finding," said Timothy A. Ball, assistant corporation counsel for the city. "We're confident in the [city's] chances of success on appeal."

Meanwhile, county attorneys reached a stipulated settlement in early December with Dietrich, who represented Morales and the legal guardian who filed suit on her behalf.

Dietrich was unavailable Tuesday to comment on the settlement. But a memorandum of law he filed in July stated that deposition testimony found that two lifeguards that were poolside on the afternoon of the incident were "inattentive, engaged in conversation or speaking and texting on their telephones, despite the fact that the pool was extremely crowded and that many of those in the pool were rowdy and engaged in prohibited activity."

Dietrich, in that document, alleged that "had the lifeguards properly monitored the pool and provided prompt assistance," Morales "would have received CPR in a more timely manner and her severe injuries would have been averted or significantly lessened."

Instead, it was her son who pulled her out of the pool and began CPR before emergency medical technicians arrived, according to the legal documents.

The county, according to court documents, planned to present testimony that a history of seizures in Morales' past might have contributed to the incident and that she failed to notify lifeguards of the seizures or comply with her doctor's orders. In legal documents, Dietrich disputed that contention.

The settlement agreement was unavailable Tuesday, but the amount was disclosed in documents sent to county legislators. The Legislature must authorize the county to issue bonds to pay the $7 million, a vote that will likely be taken in January.

The decision to ask the Legislature to borrow money for the settlement rather than pay it in cash comes after lawmakers finalized a 2012 budget in early December that set aside less money next year for the county's "risk retention fund" for legal settlements.

That fund currently has about $6 million in it, and County Executive Chris Collins had proposed putting another $3 million in that fund next year. County legislators, at Poloncarz's suggestion, reduced that $3 million contribution in order to restore other items to the budget.

Grant J. Loomis, a spokesman for Collins, said the county executive signed off on the settlement amount but would have preferred to see the county pay it in cash.

"Certainly, we felt it was appropriate to consult the incoming administration, given the size of the settlement and the fact that we were near the end of our term," Loomis said. "Mr. Poloncarz made it clear that he would feel comfortable with the amount if it were bonded."

Given the upcoming transition and the fact that the year-end finances are still in flux, Poloncarz will seek approval to borrow the money.

"Right now, it just seems like the judgment bond is the best way to go for this single, unanticipated lump-sum payment," said Mark Cornell, a Poloncarz spokesman.