- Published on Wednesday, 09 July 2014 12:28
- Written by Super User
By WILLARD KILLOUGH III
CAROLINA BEACH - A lawsuit was filed against the Town of Carolina Beach in 2013 by the family of 19-year-old Geoffrey Okinyi Onguti of Raleigh who drown in the waters off Carolina Beach in 2011.
The case was voluntarily dismissed on April 30th of this year.
The suit was filed against the Town of Carolina Beach, former Police Chief William Younginer, former head of the lifeguards Alicia Lachance and head of the lifeguards, Elliot Bass. The suit was filed by the administrator of Okinyi's estate. The suit was filed on June 24, 2013 in New Hanover Superior Court Division of the General Court of Justice. The plaintiff Samson Okinyi lives in Raleigh, NC and is the father of Geoffrey Okinyi Onguti, deceased, who was born January 1, 1992 in Kenya and died June 26 in Carolina Beach. At the time of his death Okinyi lived with his parents including Plaintiff/Administrator Samson Okinyi, in Raleigh, NC.
The suit stated, "Defendant Town was charged, through its servants, agents and employees, in pertinent part, with hiring, training, supervising and retaining the Chief of Police, the Director of the Ocean Rescue Division, and police and rescue personnel."
The suit stated the Town operated their Ocean Rescue Division under the direction and supervision of the police department and, "At all times relevant herein. Defendant Town's Ocean Rescue Division was charged, through its servants, agents and employees, in pertinent part, with staffing approximately 14 lifeguard stands covering approximately 2-3 miles of beach strand from 9:30 am. to 5:00 p.m. seven days per week from Memorial weekend through Labor Day weekend."
The suit stated the Town's Ocean Rescue Division represented that it was a 'recognized certified agency of the USLA (United States Lifesaving Association).
The suit stated that former Police Chief Younginer and former Ocean Rescue Squad Director Alicia Lachance are being sued both in their official capacities and individual capacities and former Assistant Director of the Ocean Rescue Division Elliott Bass, "Is only being sued in his Official Capacity, as Assistant Rescue Squad Director for Defendant Town."
The suit alleged that on the 26th day of June, 2011, at approximately noon, Geoffrey Okinyi Onguti and about a dozen friends arrived at the Harper Avenue access to Carolina Beach. According to the Town's website as it existed then, "The Lifeguard season begins Memorial weekend and runs through Labor Day weekend. The Town of Carolina Beach places 14 lifeguard stands covering approximately two miles of beach strand... Lifeguards are on duty from 9:30 a.m. to 4:45 p.m. seven days a week."
The suit stated, "On another page of the Town's website as it existed then, they proclaimed that 33 seasonal lifeguards monitor three miles of beach strands from 11 am to 5pm. The website further states, "The Carolina Beach Ocean Rescue program is a recognized certified agency of the USLA (United States Lifesaving Association)."
The plaintiff alleged that, "Geoffrey and his friends chose Carolina Beach, in part, because of the presence of professional lifeguards" and upon arrival the weather was cloudy and rainy and Geoffrey and his friends elected to go eat at a nearby McDonald's to wait for the weather to clear.
The suit stated, "Geoffrey and his friends subsequently returned to the beach via the Harper Avenue access" and, "Upon information and belief, approximately 27 lifeguards reported for duty on the morning of June 26, 2011. beginning at approximately 8:00 a.m."
The plaintiff alleged the lifeguards were dispatched and in their assigned stands by approximately 9:45 a.m. that morning and two guards were assigned to the Harper Avenue area.
The suit stated, "Upon information and belief, because of its proximity to hotels and rental properties and its relatively high traffic, the Harper Avenue lifeguard stand is usually 'double-set" with two lifeguards at a time" and, "At approximately 11:45 am. on June 26. there was rain, thunder and lightning at the Beach."
The suit alleged that, "At approximately 12:30 p.m., the approximately 27 lifeguards were told to advise beach patrons to clear the water, to seek shelter and to monitor weather conditions" and that the timesheet for Defendant Bass, Assistant Rescue Squad Director, shows that he was not on duty on Sunday. June 26 and, "However, upon information and belief, at approximately 1:30 p.m., Bass, who is not a lifeguard, informed the lifeguards on duty that only 4-6 should remain for the rest of the day."
The plaintiff alleged that Bass received the order to release the guards from Director Alicia Lachance and, "Although official timesheets show Defendant Lachance was off work on Sunday June 26, until 2:30 p.m. following a Saturday "fundraiser," upon information and belief, she was contacted about the weather and made the determination to send home the vast majority of lifeguards."
The plaintiff alleged a Town employee made the decision to send the lifeguards home and the subsequent decision not to recall any lifeguards and, "Upon information and belief, only 4-6 lifeguards remained to cover the Town's approximately 15 towers; two were experienced, and four were "rookies."
The plaintiff alleged that, according to the Town's own signage, the Harper Avenue access area is subject to rip tides and rip tides may be active below a surface that appears calm.
The suit stated, "Rip tides create an additional hazard for beachgoers who get in the ocean" and, "The rainy conditions continued until approximately 2:00 p.m. At that time the sun came out and the surf appeared calm."
The plaintiff alleged that at 2:15 p.m., five of the six remaining guards went back on duty. None was assigned to sit in the chair/tower at the Harper Avenue access and, "Division protocol provides that lifeguards who are sent home due to weather conditions remain available for recall by telephone or radio" and, "No additional guards were recalled for duty until after the incident complained of herein."
The plaintiff alleged that approximately five lifeguards were on duty covering the 14 stands and, "Either Defendant Lachance or Defendant Bass should have recalled additional lifeguards after the storm passed and beachgoers resumed their activities."
The plaintiff alleged that, "Geoffrey and his friends were not informed by any Ocean Rescue personnel or by any signage that the Harper Avenue access was to remain unguarded when they returned after the storm" and that, "Geoffrey and his friends spoke with a young male lifeguard near the Harper stand; they asked him if they could take what appeared to be an abandoned chair and he said yes."
The suit stated, "Geoffrey and his friends believed that this lifeguard was remaining at the Harper Avenue access where they were swimming" and alleged that, "The Harper Avenue access was double-guarded prior to the storm."
According to the allegations, "At approximately 2:45 p.m., Geoffrey and a few of his friends were using a large donut-style raft/flotation device in the water" and, "The device measured approximately 5 feet in diameter and was purchased at a nearby beach store."
The suit stated, "The raft and its riders drifted from shore toward the North and toward deeper water" and, "A wave upended the raft, throwing several of the friends off into the water, including a female teen and Geoffrey."
The suit stated that an unidentified surfer approached and assisted the female to the shore and one witness yelled to his brother on shore to call 911 and joined others looking for Geoffrey. At 3:00 p.m., the first call regarding the incident was made to 911 by an unknown caller. Such call was disconnected before the caller was identified.
The plaintiff alleged that, "At 3:04 p.m.. another 911 call was made, regarding a missing person in the water" and, "Upon information and belief, three lifeguards convened at the Harper Avenue access and began to interview bystanders to find out what was happening. They subsequently began a "line search."
Basically lifeguards formed a line or human chain in the surf and searched north and south of the area.
The plaintiff alleged that another 911 call came in regarding a missing swimmer and that at 3:30 p.m. Kure Beach rescuers arrived to assist the Ocean Rescue staff and joined the line search.
The suit stated, "At 3:42 p.m.. Geoffrey's body was pulled from the water and CPR was attempted" and, "Geoffrey Ongun Okinyi was pronounced dead and transported to New Hanover Regional Medical Center in Wilmington."
The suit stated, "After Geoffrey was dead, 3-4 additional lifeguards were recalled for duty." At the time of his death. Geoffrey was survived by his parents, who are his sole heirs.
The suit stated, the defendants knew or should have known that summer storms can dissipate quickly and that visitors to the beach will return to the water and that after a storm, the ocean could be particularly turbulent, increasing the danger to swimmers in the ocean.
The suit states, "Defendants knew that withdrawing the lifeguards on a weekend day in June would substantially increase the dangers to those using the ocean, yet it reduced its lifeguarding force by approximately 80 percent" and, "Defendants failed to adequately notify those in attendance at the beach after the storm that only 4-6 guards of the original 27 were returning, and that as a result they would he in substantially increased danger."
The plaintiff alleged that officials gave the initial appearance of safety by providing full lifeguard staffing, but withdrew lifeguards and failed to recall them in accordance with policy- thereby "substantially increasing the risk to ocean bathers."
The suit stated that officials had a duty to supervise bathers at its beach and had a duty to minimize risk and to rescue bathers in distress at its beach, including Geoffrey.
The plaintiff alleged, "Defendant Bass warned Defendant Lachance about the danger of sending home so many guards on a busy Sunday afternoon in June when many citizens were enjoying the beach" and, "Plaintiff believes other lifeguards also warned Defendant Lachance about the dangers associated with her decision, and the same shall he further adduced at trial."
The suit stated, "Defendants' conduct was willful and wanton, with a conscious and reckless disregard of and indifference to the rights and safety of others, which Defendants knew or should have known, was likely to result in injury, damage, or other harm" and that conduct was condoned, "by the officers or managers of Defendant Town."
The suit stated, "As a result of such willful and wanton conduct which proximately caused the death of a nineteen year-old citizen. Plaintiff seeks punitive damages" because officials failed to protect Geoffrey from injury and death.
The plaintiff alleged, "Defendants failed to exercise reasonable care and diligence in the application of their knowledge and skill to Geoffrey; and otherwise failed to provide appropriate, reasonable, and prudent care, including rescue, to Geoffrey" and that, "Defendants' failure to have even a single lifeguard at the Harper Avenue access substantially delayed response time and prevented Geoffrey from being rescued."
The suit stated, "Defendants knowingly, and with conscious disregard for the safety of beachgoers, including Geoffrey, created a dangerous condition by permitting swimming without lifeguards during a peak swim time" and, "The death of a beachgoer, including Geoffrey, was a reasonably foreseeable consequence of the defendants' gross negligence and negligent acts or omissions as set forth herein."
The plaintiff sought to recover damages including expenses for care, treatment, and hospitalization incident to the injuries resulting in Geoffrey's death. Additionally, they sought compensation for Geoffrey's pain and suffering; the reasonable funeral expenses for Geoffrey, including transportation of his remains to Kenya for interment; the monetary value of Geoffrey to the persons entitled to receive the damages recovered including but not limited to compensation for the loss of the reasonably expected services, protection, care and assistance of Geoffrey as well as society, companionship, comfort, guidance, kindly offices and advice of Geoffrey.
The suit stated, "Plaintiff is entitled to recover compensatory damages in an amount in excess of Ten Thousand Dollars ($10,000.00) for the wrongful death of Geoffrey proximately caused by the defendants' gross negligence" and, "Plaintiff is entitled to recover punitive damages in an amount to be determined by the jury, for the wrongful death of Geoffrey proximately caused by the defendants' gross negligence."
The plaintiff alleged that at the time of Defendant Lachance's hiring by Defendant Younginer, or beginning thereafter, the two were engaged in an extramarital affair and, "Defendant Lachance was not qualified to direct the Ocean Rescue Squad" and that, "Defendant Younginer knew that Defendant Lachance was not qualified to direct the Ocean Rescue Squad.
The plaintiff alleged that, "Despite documented complaints and knowledge of the affair. Defendant Town continued to employ both Younginer and Lachance" and, "Lachance's lack of qualifications was ignored by Town and Younginer."
The plaintiff alleged that a lack of training for Lachance and Bass led to the decision to dismiss 22 of the 27 lifeguards that day and not recalling them that afternoon.
The suit stated, "Whether the decisions regarding staffing were made by Lachance or Bass, or by another Ocean Rescue employee, Defendant Town failed to ensure that properly hired, trained and supervised personnel with appropriate lifeguarding experience and credentials were managing beach operations on the date of Geoffrey's death."
The suit stated, "There is a need to punish the defendants for their egregiously wrongful acts described above and to deter them and others from committing similar wrongful acts in the future" and, "Plaintiff is therefore entitled to recover such punitive damages as may be awarded which bear a rational relationship to the sum reasonably needed to punish the defendants or to deter them and others from committing similar wrongful acts in the future."
The plaintiff sought a jury trial and to recover compensatory damages, in an amount in excess of $10,000.00; punitive damages. in an amount in excess of $10.000.00; the costs of the action, including reasonable attorneys' fees; and for other relief as the Court deemed just and proper.
Carolina Beach Town Attorney Noel Fox informed the Council the cased was voluntarily dismissed without prejudice April 30th, 2014 during their regular monthly meeting in May.