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Common Council to mull $1 million payment for near-drowning at pool

The scene at the Buffalo public swimming pool where 37-year-old Jannette Morales nearly drowned in 2009 looked chaotic.

Children ran around the pool deck; a half dozen teenagers tackled each other into the water, and then did backflips off the lifeguard stand.

No one listened when told to stop running.

“The lifeguards gave up, didn’t pursue it anymore,” recounted Kevin Wyatt, a witness.

Meanwhile, one lifeguard talked on her cellphone and another sat on the pool’s edge with his feet in the water, talking to two girls.

In the midst of all this on Aug. 21, 2009, Morales was floating face down next to the lifeguard stand at the Rees Street pool.

Angel Gonzales saw his mother and screamed for help.

He struggled to pull her to the side of the pool and called to the teenagers doing backflips for help getting her onto the pool deck.

With his mother turning purple, Gonzales performed CPR as the lifeguards watched, according to witness statements.

The Common Council is expected to vote today on a $1 million payment to Erie County, which operated city parks at the time of the 2009 incident and has already paid a $7 million settlement, reached in 2011, to Morales. Last week, the Council’s Claims Committee recommended the full Council approve the $1 million payment.

The county and city had argued in State Supreme Court and at the Appellate Division over responsibility for paying the settlement.

The sides eventually agreed the city would pay $1 million of the $7 million.

Since taking back control of its pools in 2010, the city has put in place policies to avoid a repeat of what happened on that August 2009 day, said city Public Works Commissioner Steven J. Stepniak.

The city requires additional lifeguard training beyond the required Red Cross certification.

“Lifeguards are prohibited from using cellphones while on duty,” he said in a statement. “Furthermore the city has security officers at each site. And we’ve spent millions of dollars in upgrades to the facilities city wide.”

Morales’ lawsuit, filed by attorney Joseph E. Dietrich III, alleged Erie County and the city of Buffalo were negligent for allowing unruly behavior at the pool and not providing proper supervision.

Morales is now “profoundly and permanently disabled,” according to court documents.

She suffered brain damage, lost full use of the right side of her body, and suffered loss of speech, according to the suit. She can answer yes or no to simple questions, but she cannot move around or function independently.

Morales incurred more than $250,000 in medical bills.

One witness said the lifeguards did not scan the pool as they should have, nor did they help get Morales out of the pool.

By the time her son called for help, one lifeguard had been in a cellphone conversation for at least 15 minutes, Wyatt said in a deposition.

Two other lifeguard stands were empty, one for an entire hour before the near-drowning.

In front of the other empty stand, a lifeguard sat at the edge of the pool, flirting with two girls, according to the deposition.

On-duty lifeguards were not allowed to have cellphones with them. Phone records show a 17-year-old lifeguard was on her cellphone before the accident and also sent or received 24 text messages in the hour before the accident.

She was texting a friend in the Albany area whom she met on MySpace.

After the near-drowning, the pool staff could be overheard conferring over the importance of getting their “story straight,” Wyatt said.