Teen Off the Hook for Friend's Drowning

     (CN) - A boy who believed his friend was horsing around in a New Jersey lake when he flailed his arms and cried for help is not liable for the child's drowning, a federal judge ruled.
     John Toribio had been friends with his classmate, Anthony Dioscon, for three years when the 14-year-olds traveled with Toribio's mother and stepfather, Heather and Timothy Miller, to Sea Isle City for a weekend in August 2010.
     The teens often swam together in the Millers' pool, with adult supervision, despite a slight deformity in John's hand, and the Millers warned the boys before the weekend getaway not to go near any water without a parent present.
     It was soon after dinner on Aug. 8, after a day of supervised swimming in the ocean, that the teens went for another dip, this time by themselves, in the lake at the Pine Haven Campground with a third teen, Michelle Wheeler.
     Wheeler testified that they all splashed around for a few minutes before she and Dioscon swam ahead of John to the middle of the lake.
     At this point Wheeler allegedly turned to see John flailing his arms a few feet behind her, and she and Dioscon heard John call out "help."
     Dioscon said he assured Wheeler that John was alright, thinking John "was in control of everything" and just "messing around."
     The pair testified they when they reached the other side of the lake and could not see John, they walked back to the spot where John left his clothes. Finding those belongings untouched, Wheeler and Dioscon checked with other kids at the nearby basketball courts and then conducted an hour-long search for John with up to 10 other teenagers.
     Soon after Dioscon told his mother at around 10 p.m. that John was missing and may have drowned, she called 911 and John's mother. Divers found John's lifeless body in 15 feet of water about 35 feet from the lakeshore a few hours later.
     Ocean View-based Pine Haven faces a lawsuit from John's mother, Betania Toribio, but filed a third-party complaint against Dioscon, the Millers and Wheeler because it believed that they should share in any liability.
     U.S. District Judge Joseph Irenas awarded Wheeler summary judgment May 15, and did the same for the remaining third-party defendants last week.
     "Nothing in Pine Haven's rules imposes liability on a renter, the Millers, because of the decedent's alleged breach of the campground's rules or regulations," the Aug. 5 ruling states. "There is therefore no basis to establish that the Millers failed to perform that obligation."
     Irenas later added: "Though the Millers failed to accompany Dioscon and the decedent to the lake in the evening on Aug. 8, this action is not prohibited by Pine Haven's rules, which only prohibit unaccompanied children at the pool. In addition, there is no dispute that the Millers did not actually permit the boys to swim after dark, as the undisputed record demonstrates that the boys were repeatedly warned not to swim alone."
     The judge also tossed aside the campground's claims against the Millers' son.
     "As with Wheeler, there is no basis to conclude that Dioscon owed the decedent a duty of care to rescue the decedent while they swam together," Irenas wrote. "As Pine Haven essentially conceded at oral argument, the undisputed record demonstrates only that Wheeler suggested the group of teenagers should swim together, and that Dioscon and the decedent were close friends. As a matter of law, such friendship is insufficient to establish a special relationship, even where the danger is obvious and foreseeable, as it was with the friends who watched a teenager play Russian roulette with a loaded firearm in Theobald."