MYRTLE BEACH, S.C. (WBTW) — A lifeguard company hired by the city of Myrtle Beach is asking for a new trial and a reduced judgment after a drowning victim’s family was awarded more than $20 million in a case accusing the company of focusing more on renting beach equipment than swimmers’ safety.
In court documents, Lack’s Beach Service said if a new trial is not granted, at the very least, the $20.7 million awarded to the family should be reduced to $300,000. Lack’s Beach Service claims that because the company was contracted by the city of Myrtle Beach, the South Carolina Tort Claims Act applies to it, which caps awards for actual damages at $300,000 and doesn’t allow for punitive damages to be recovered.
Under the law, state and political subdivisions, and employees, are “immune from liability while acting within the scope of official duty except as waived by the SCTCA,” according to the documents. Lack’s Beach Service argues that because the company was contracted by a government agency, “derivative sovereign immunity applies.”
The city of Myrtle Beach, which was included in the initial lawsuit, was dismissed from it before the trial. The lawsuit was filed in 2019 by Maswaet Abel, who the lawsuit said was the fiancé of Zurihun Wolde at the time of his drowning death in 2018.
In asking for a new trial, Lack’s Beach Service claims the victim’s family never offered any direct or indirect evidence that their lifeguards were performing commercial duties, such as renting out equipment, at the time of the drowning.
“To charge the lifeguards with distraction or delay in response, Plaintiff needed to establish: (1) that there was enough time for a fully attentive, on-duty lifeguard to observe Wolde and (2) get to him in time to change the outcome,” the filling reads.
Lack’s argues that none of the evidence provided traces “back to the transaction of commercial activity by any lifeguard.”
Lack’s Beach Service claims that the victim’s family and a water safety expert in court never proved that the outcome would’ve been any different with a fully attentive lifeguard.
“It was fundamentally unfair and unjust to charge LBS with a delayed response when there was absolutely no evidence of the passage of time for any of the relevant events,” according to the filing.
The company argues that the lifeguards could’ve been doing any other approved lifeguard duty, such as “scanning the water where the incident occurred yet initially missed what could have been a very fast drowning event,” providing the public with information about the surf, tides and currents, intervening in a beach conflict or helping with a lost child.
The company said without specific evidence of what the lifeguards were doing, there are too many possibilities for what they could have been doing, including any of the other approved lifeguard duties.
Lack’s Beach Service also calls into question one of the family’s experts who said the water should’ve been closed on the day of the drowning. The filing claims the expert admitted to never visiting Myrtle Beach and being unfamiliar with the weather on that day.
Lack’s Beach Service said the jury decided the case “based on speculation, sympathy and passion” and delivered “an excessive verdict,” according to documents. The company claims the jury failed to follow instructions from the court.
Lack’s Beach Service claims the judge wrongly allowed certain evidence into the case, including financial information for Lack’s Beach Service.
“None of this evidence was relevant to any issue in the case and was highly prejudicial to Defendant, especially in the manner in which Plaintiff’s counsel used the evidence throughout the trial and in his closing argument,” according to documents.
“The inescapable conclusion is that the jury ignored the evidence and rendered a verdict based purely on passion, prejudice, improper motives, speculation, and at the urging of improper arguments of Plaintiff’s counsel,” Lack’s Beach Service said in the documents.
“The jury was specifically instructed that it could not affect economic bankruptcy on LBS — yet, after hearing the net worth of LBS and available insurance coverage (which was effectively exhausted by the jury’s compensatory damages award), the jury did exactly what they were instructed not to do — render a punitive damages award that would, effectively, bankrupt LBS.”
On Monday, the victim’s family filed a response in court objecting to Lack’s Beach Service’s claims and reasoning for a reduced judgment. The family claims that no court has ever accepted Lack’s argument of derivative immunity.
“It is also contrary to the public policy, legislative intent, and plain language of the Tort Claims Act, i.e., to insulate government entities from liability for ordinary negligence — not to provide unlimited immunity to private parties, like Lacks, whose willful and reckless conduct threatens the safety of the public,” court documents read.
The family claims Lack’s waived its “right to assert any limitations of liability under the SCTCA.” The family claims Lack’s never used the SCTCA as a defense or claimed any immunities under it.
“Lack’s further waived this purported affirmative defense by litigating this action for almost three years without putting the Plaintiff on notice that Lack’s was asserting this defense,” documents read.
Even had Lack’s claimed that defense, the family said the act doesn’t allow derivative immunity for “private for-profit businesses that contract with state entities.”