on details and monday morning quarterbacking as to what certified life guards did or didn't do when faced with an emergency situation created by the plaintiffs to seat an eric jones i plan to discuss the year in the trail core mission of what i call the england rules the internal policies and guidelines made up by douglas england was a property manager at the lake at that time i plan to talk about the failure of the evidence to support the element of proximate cause and then i plan to discuss the absence of evidence sufficient to prove willful and wanton misconduct on the part of the city especially when the england rules are taken out as we believe they should have been and i would urge you to reverse the truck court's judgment and her judgment now in favor of the city and against the plaintiff if time allows we will talk about the missing cousins i do not intend to waive any argument expressed in briefs by not mentioning them in this oral argument so first the internal rules the first question is what is the law really require of the city or somebody else managing a pool of this nature or lake of this nature per the regulations of the department health one and this is this is right out of the regulation they have to hire certified lifeguards the lifeguards come retraining the city did that too they have to staff the beach at a ratio of one guard per one hundred bathers which the city exceeded in this case and that's all the regulations that's all the law requires of the city  it doesn't say anything about how the lifeguards are supposed to do their job it's just that they're to be certified and that they're to be provided that that one to one hundred ratio there requires no training beyond by the municipality that the guards master in their certification process that's what the the training sort of cation process is to provide and a lot of municipalities a lot of private pool owners would have the resources to have ongoing training so the law requires you get the pre trained guards who are certified recertified and that way the public is protected that's why the law requires that there's been no showing whatsoever that the defendant by later the law the case was built almost entirely i understand what you say for me the difficulty came about because we have left a lot of required then we have this memo or i don't know it's a memo seems too formal given that it was just kind of scratched on some paper and then you had the practices or not is that staffing ratio is the fact that only certified by hired now the thrust if you will of mr rose testimony anyway was that we violated these law requires you hire certified lifeguards in the first place especially if you don't have the wherewithal to try to provide accommodation for the public like a nice swimming area but you can't provide some sort of training staff to continually be doing this i mean that public is protected by hiring those guards would seem to come down to this line not being formed quickly enough yes and wasn't that really more a part of the expert testimony yes but that gets back to that gets into the emergency action plan and which one is appropriate which and which i will say i can't find where i get object to the ha in the record so that doesn't exist however it was confusing about the way the emergency action plans were portrayed i think by the time it was all said and done the lawyers can look back through the record and say oh yeah here it's pretty clear and the point i emphasize frankly for the jury is pretty clear that when there is a situation where a bather is missing we don't know where this person is all we know as is in the water somewhere now he's gone you go to his last known reported area and you search there which is to me common sense i mean times of the essence you franticly then and that perhaps not frantically is not the best word but you assemble the search based on that location and that's what happened here there's pretty you overwhelming testimony from the other guards particularly that they were indicated that the body was let the person was last seen out by the sea wall you go there and they get essentially do with a line search at that about laxity in how quickly they responded or how they responded i mean forgetting the london rolls it would to say be responsible if the jury believed that the lifeguards have no matter how many of them there were no i don't believe that that was the case but assuming that were true if they weren't diligent i you know i don't think the law provides that they're required to go about the business of rescuing in a certain way if that makes any sense because we started where there used to be and it was a blanket immunity against any liability we've gone over to   when because you're like once you undertake a rescue you have to do it correctly so that well fine i want undertake the rescue therefore i don't have to do anything to me that's an absurd contention that the plaintiffs rest of this trial but you have to do so i guess under the the amended immunity statute you're immune you know unless you're guilty of willful one so if you want  help help i need help ok i'm going to go get a hot dog for you know something absurd like that right then i would see that there could be liability now factually do we have this in the scenario here in front of us i don't believe there's anything close to but i  think it is a possibility to have you know other words you can violate the law by not having certified lifeguards shoot the proper ratio or you can be willful and wanton in the execution of your job  the way if they were to adopt a policy which nonetheless would be an internal policy but they would say we intend to exceed the standards required by state off and then that's posted knife guards gre is that role would that be relevant only if it were adopted as an ordinance but ok you know because it has said the case ever light upon emphasize that an act and if it's just like in this case we don't have that situation but we have  know a guy a property manager said he's on his backside because of a complaint i hear is you know it well and they were never really apparently the rules because the lifeguards certainly had heard of them and i think they had better rules frankly when you  were the case was built on england rules that we said and the support to the supposed internal guidelines of the city and written piece of paper let me get up with my notes the substance of the policy is disputed and that is defendant's rules and internal guidelines that's a case that cited long after the ruling that was from bank six i think darling six or memories so counsel is it your position that basically the jury in hearing the england rules that you're calling them imposed a duty based on those rules and that's why it decided the way it did yesterday then that was the entire just a landscape and i kept reading over and over again  the docket entry from the judge in determining whether or not that evidence that in and the documentary says that the memorandum is evidence the trier of fact may consider to determine whether or not the defendant violated the ordinary standard of care or that it said that the memo did not impose a standard of here on the defendant or duty but that it can be used to see if there was a violation of the ordinary standard  really on point because there you know they spotted a guy who was drunk and you know so a railroad station it was cold and their policy was call the police they did that or their policy was also call your own security guards they didn't got all their own security guys and so liability was premised on that violation of their internal rules and the supreme court said no we're not going to do that blankenship the third district case i think is particularly  in this case because it's a swimming pool case it was cited by roads and the third district held the swimming pools internal rules could not be used by a plaintiff just as the way the play of using win rules here district internal rules which require at least one lifeguard to remain on duty during the adult swim period well the violation of a statute or an ordinance designed to protect human life or property is primus facia evidence of negligence a legal duty not normally established through rules or internal guidelines and the failure to comply with self imposed regulations does not necessarily impose upon me this will bodies or their employees of legal duty so these like i said were never inactive never given the force of law the city council said you know we passed these rules you were this is what you would do that would be a different sort of thing but that's not what we have in front so i knew it obviously great so fourth district case will pop vs midway's same thing here or its own policies as to when they shovel snow and things like that and property use those to create beauty young versus the operating procedures of the fire department do not impose a legal duty upon you his full entities or their employees and the public policy i think so i mean if you say today that you know these internal rules for safety there are going to set a standard here and many of those out tomorrow throw away all those internal rules that we've put because we wanted to be safer  you know if we're going to encourage say if we're going to encourage municipalities to be even safer than them then we can establish you know through public policy a rule that will force them by their own target they do so in a civil case like this proximate cause  this is a you know this is not in the intersectional case this is a difficult cases lake water it's muddy water you know one of the experts i think mines that look you can have a guy slip right in there and be watching where he's at and you may  there's been this this spring sumption that lifeguards guaranteed rest or lifeguards have a magic wand and they can just pull these people out in all circumstances and it's not case people drown all the time despite  care now in this case there's no evidence sufficient to support that anything these lifeguards did or didn't do was the proximate cause or a proximate cause of this gentleman's death we have the delay in reporting to the life bather then you lose all that opportunity so we don't believe the proximate cause has been shown either manifest weight if we take the england rules out i don't think that there's enough to support a cause of action  think it was justified court holds those rules room properly admitted if you look at all the other evidence i don't think we get to the point where a retrial would be necessary i think the court can say as a matter of law there was not staffed the beach with twice as many guards as the lower wired they they they were a fog out rules as to where they would said i mean the lifeguards himself said yeah well you can't really watch safely the bathers going off the board from the platform because the board itself is in the way much better to do it in this case he did sit here in this chair and watch this area so i mean these things are are not spontaneous they're not didn't what the witnesses said they didn't ignore them they emerged sleep emerge at least searched they didn't just blow it off they didn't blow the whistle that's been established over and over again and they use their from the point of view of the missing witnesses it really common i think when you have a family that doesn't come i think we're title negative inference when there's been no showing why they were there should be he was described to the jury in the jury instructions i had as a come in it comes in because it's evidence of the standard of care that the city would sadly give to follow in fulfilling or not fulfilling that duty similar to similar to the the rules the internal rules internal guidelines internal policies that you see in almost every case we've got we've got somebody in charge of the facility just you saw it first years ago in the value case that we cited where the hospital's internal the statute said we had to do and we we did better than that that means we did not violate it we did not a pilot standard care and that means before build our duty our response was to the jury what was your response they didn't follow their own evidence began really to focus on the training nobody knew what to do the people involved say we didn't know what to do and also on the rescue itself the what the would call be chaotic occurrence o circumstances surrounding the evidence that really work that's that's what really showed the jury what occurred here and if i can remind the court mr england was on the stand here and he said what was in that memo is what the what the but the guards were supposed to seek that out he's also the person that's in charge of the beach he's the only person that we can see on the record that's in charge of the beach he's the one that everybody each one of the lifeguards said mr lincoln's will be mr anglin is the one that told us what to do so if he tells them something correct we've never but yet you say you can use those in the alleged violation of those rules to say they violated the standard of care that's correct that's not going to be part of the standard of care if you cannot impose a duty care if it's a construction site you bring in the policies from the construction manager the construction company it's done all the time thomas standard construction if you have a trucking accident you bring in your bring in the trucking companies rules on how many hours how many hours you can drive but is it different here given that we have this statute that outlines what they are responsible to do this far as who they hire and how they conduct themselves and in the fact that you know this is a pool and basically wanting to encourage people musicality is to be safe but yet not impose liability on us it's a willful and wanton time that doesn't that make this a little bit different than what you're signing as far as instruction cases of that nature i think that it's the same in every and every event in the hospital construction site hudson the purpose of the entire internal rules in every case is to hopefully make things safer so we don't end up with  on a humanitarian side so we don't have people her running a business corporate side so we don't have to engage in litigation and if we look at the for example if you look at the hudson case the internal rules i police pursuit that limited the cars involved in a police pursuit are to prevent and they were certified but it turns out i understand the argument was what we did have to check and it turns out that they weren't trained in the lifeguards themselves the court will recall said we need to be trained we need to practice the p c emergency action plans and  they didn't know what they were supposed to have three people one each of the three chairs someone just did not know it because they never saw the memo and the other was the other response was they thought that they could better observe tell us was right one of them test we thought we could better observe the diving platform from this chair and the expert said well that's impossible you need you need to have somebody on that diving plan for so that was a question for the jury should be having should you have had a guard back here an hour to the chair or w as there also some somebody said there was a chair we never used that's correct there was a chair out on the great wall that was just never you the real question here was there should have been should have been three people i'm at that's a lot of people didn't stash it even requires that they have out there on that day based on the number of swimmers right that's correct on the other hand they did with the chairs there they put the chairs in each place i think if you come to the beach if you come to that beach you expect to have i believe people rely upon with their have a say system now the people on the beach don't know that there should be one here one here they just see chairs there but the experts have said here yes that's why you have them there so that the report general reliance of the public is fulfilled i don't know that we have to say that who of the public said that that the public here and we relied upon we only went there because we knew there were actually ferrets out there and the testimony was that if they had the number of lifeguard put apparently the whole country says you need to have these people out and they would have seen what was happening and what we needed here was really a recognition of what was going on or or more accurate recognition the emphasis was that we need to do this all the time because we need to be able to get from here to that water and next minute in x seconds and that's what the expert said was so critical and then the bottom line was the completely separate count i'm related to he testified they wouldn't do what i wanted them to do it would seem so they just stand there and looked at each other these are all young people seventeen eighteen years old i think but they're put out there to save lives and it's a serious business you need to know what you're doing and you need to be trained to know which that was the evidence not me it's experts that you need to be trained to know what you're doing so if this doesn't happen and there were train which is completely separate from the memo and they did not respond well even their understand what if they do what they were doing and then listen to what the testimony was they would have done a line search as the chair expert said you would have found him within seconds he would have had him out of the water a minute thirty five seconds and in terms of proximate cause our expert testified without objection that that he would have been saved because you can resuscitate somebody within three minutes of being submerged there was never any objection to that there was an objection it wasn't raised during the oral argument there was an objection in the motion to the lifeguards talking about whether in that you could save the person but there was no objection in the motion in limine a whether the experts could testify about what would be the result if you could rescue them within a fixed time frame so that came in without objection so of in terms of proximate cause the jury heard our expert say that if they had done this properly he would have been out of the water erik would have been out of water in a minute thirty five seconds and that you can resuscitate somebody within three minutes the other question that counsel raised was the the willful and wanton aspect of the case and again going back we did say that violation of that that that the duty itself was affected by we simply said was that when you have a circumstance where there's evidence that nobody trained them that alone i would think would send it to the jury because the x because the people involved said we need to be  trained we didn't do it properly it was chaotic which showed that they did know what they were doing and they were acting and that if it wasn't a lifeguard's fault it's those that change the picture because they should have been trained by the city but bottom line is that whatever whatever was done here by the city or by the lead guards where it whether it originated whether the chaos described by the words rooms originated in the training or in the inability of the lifeguards to respond as they were supposed to  the time that's what young say and more than young said because you need to get good that you need to do it in a timeframe and that wasn't done here and secondly that the emergency action plan is part of this and the lifeguards don't even know about that you have to follow the emergency action plan whether you're certified or not you still need to follow the e a p it's called they didn't do that here they did not form the line search immediately as they should have you don't recall even mr england admitted that under his he did beat that first you wanted to see where the person had been and then you should search the locker rooms and that's what they told the young man to do they go back and make sure he's not in the locker rooms and the standard of care for lifeguards certified or not the evidence was there is a standard of care they agreed you need to follow that plan they all agree this is what you should do and they did not that's the evidence from our part if they had done memo didn't create a duty it was a standard of care for his perpetuating the same circular argument that people who have to be smarter than me perhaps understand you but i don't know i mean i don't think that there's a real distinction between the terms that's why i think it's just used confusingly to try to avoid the strong line of precedent which says you can't use this type of evidence to show th do it's got to be something that's in acted like a law or like an ordinance for it to be admissible they're supposed to be a lifeguard in the shower they're supposed to be a life guard deep and the law doesn't say where you're supposed to be put that's just the way they do that they're both of these life or it's or frankly one of these lifeguards who serves only thirty five bathers present time could've been strolling up and down the beach as long as they were on duty to or thirty five they station them i think logically one in the deep end one in the ship shallow that was their understanding of the rules if there's one person on the shallow end we got to carry one person and do that and we got a guard there to  so i think that the city did above and beyond what we wired over to try to provide safety  we've seen that at the end that what i think was the intentional confusion of the issue trial perpetuated very b a p as each and every one of them putting the plane expert was you go to the last known place where the pay there was see that's the e a p for missing bather location ok you don't do a line search unless someone turns up missing and you didn't see where they went then you're doing a essentially a body recovery search you're doing lining up at some arbitrary point in the lake and starting a search to find where the body was that was never the scenario we saw that time and time again a trial and even here today