City being sued over sunburn
Vivian Schwammel never thought for a moment that her grandson would be in danger during a day camp trip to the beach. But when she returned seven hours later to retrieve the 7-year-old, she was shocked. Her grandson’s fair skin matched his red hair, and he radiated heat from a second-degree sunburn on his back and arms.
“I really thought we could trust them,” Schwammel said referring to South Lake Tahoe’s parks and recreation department Camp Tadaka/Camp Radical. The summer program is open to first- through eighth-graders and offers recreation and field trips Monday through Friday.
Vivian and her husband Wayne signed-up Tyler Bedard, their grandson, for the camp during a six-week visit. The day trip involved a full day at Sand Harbor in July 1998.
The Schwammels claim they provided Tyler with sunscreen and an extra T-shirt that the counselors failed to use.
Jodi Stine, Tyler’s mother, filed a suit against the city in January on behalf of her son, claiming personal injury, pain and suffering, and mental and emotional distress. On June 4, El Dorado County Superior Court Judge Suzanne Kingsbury released a tentative ruling in favor of the city stating that the duty of a governmental agency can only be created by statute and Tyler’s attorney, Lawrence Samelson of the law firm Laub and Laub, failed to specifically name the statute.
Samelson, who has 30 days to respond, said he plans to amend the complaint to name the specific code section. In the lawsuit, Samelson argued that when a public entity voluntarily assumes a protective duty toward a member of the public it can be held to the same standard of care as a private person. Furthermore, Samelson said the city can be held liable for the actions of its employees who are acting in the capacity of their jobs.
“If the city is going to run a child care center they should be held to the same level of responsibility as a private child care center,” Samelson said. “In the brochure for the camp they claim to provide a ‘safe and secure environment’ and ‘high-quality, convenient child care at a fair price.’ If this happened in a private, child care setting there is not question that they would be negligent.”
City attorney Catherine DiCamillo said although Tyler’s burn was unfortunate it is not the city’s responsibility. In response to the complaint DiCamillo argued, “no statue exists which imposes liability on a public entity to protect a person from the effects of the sun.”
Through the Government Tort Claims Act, public agencies enjoy certain immunities that private individuals can not claim.
“It seems that the grandparents were unaware of the dynamics of going to the beach all day. They should have taken more steps to ensure his safety, for example not allowing him to go at all,” DiCamillo said.
In response to the Schwammel’s first complaint to the city, Gretchen Abravanel, the city’s risk management coordinator, wrote back stating that the camp’s literature stresses the importance of sunscreen, and “If asked, we do apply sunscreen on the child, but Tyler never asked.” Abravanel went on to point out that the site at Sand Harbor also provided access to shade.
Samelson scoffed at Abravanel’s reasoning.
“What 7-year-old is going to go sit in the shade when all the other kids are playing in the water?” he asked. “And what 7-year-old is going to know when he has had enough sun?”
Vivian said her grandson did put sunscreen on the areas he could reach himself and his face and chest were relatively unaffected.
“He could not reach his back. He is just in first grade and at that age they can’t do those things for themselves. We had to take him to urgent care and it was a week of painful recovery,” she said. “The pigmentation on his back has changed color and we still have to find out how this might affect him in the future. If nothing else, hopefully, this lawsuit will make the city more careful in the future so another child won’t have to go through what Tyler did.”
DiCamillo said besides some minor filing fees the case has not been an expense to the city. The city is self insured up to $250,000, after that any settlement the city might be held liable for would be handled by insurance which pays up to $10 million.
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