N.J. Teen Not Liable for Peer’s 2010 Drowning

(CN) - A New Jersey campground cannot sue a teen who swam away from a boy she heard cry "help" while "flailing his arms" in the lake, and who later drowned, a federal judge ruled.

The dispute stems from a wrongful death suit Betania Toribio filed against the Pine Haven Campground in Ocean View, N.J., where her son John, 14, was found dead in 2010.

The owners, in turn, filed a third party complaint against the teens who swam with John moments before his death, including then 14-year-old Michelle Wheeler.

Wheeler testified that soon after arriving around 4 p.m. to spend the evening with her family on Aug. 8, 2010, she swam with her cousin and friend, and then walked over to a nearby basketball court, where she met John and his friend, defendant Anthony Dioscon, for the first time.

The trio headed to the lake about half an hour later, and began splashing each other before swimming away from shore, Dioscon and Wheeler said.

After the pair swam ahead of John for two minutes, Wheeler allegedly turned to see John flailing his arms a few feet behind her in the middle of the lake, and heard him call out "help."

Though Wheeler and Dioscon claim they saw John "splashing around" and "flailing his arms up and down," Dioscon said he assured Wheeler that John was alright, thinking John "was in control of everything" and just "messing around."

They then swam to the other side of the lake, according to their testimonies. But when they arrived, Wheeler and Dioscon could not see John in the water, and soon found his belongings near where they first entered the lake, Dioscon testified.

When no one at the basketball courts said they had seen John recently, Wheeler, Dioscon, and eight to ten other teens searched for John around the lake for about an hour, the pair said.

Soon after Wheeler told her parents John was missing, state police responded to a possible drowning report filed by Dioscon's mother at about 10:30 p.m.

Divers found John's body in 15 feet of water about 35 feet from the lakeshore, and he was pronounced dead at the scene at 1:42 a.m.

Pine Haven LLC and Pine Haven Holdings LLC, sued Wheeler and Dioscon for negligence and indemnification in 2013, about five months after Toribio filed her wrongful death suit against them. Wheeler moved for summary judgment in the third party suit on March 28, 2014.

U.S. District Judge Joseph Irenas granted the unopposed motion May 15.

"Here, there is no basis to conclude that Wheeler could foresee John Toribio's risk of injury by swimming in the Pine Haven Campground lake," Irenas wrote. "The undisputed record reflects that Wheeler met John approximately 30 minutes before his death on Aug. 8, 2010. Though Wheeler initially suggested that the small group of teenagers should go swimming, given their limited interaction, Wheeler could not foresee that John would struggle to swim on his own and ultimately drown in the same lake that Wheeler swam in with her family earlier that day. In other words, there is no basis to conclude that Wheeler and John, over the course of their 30 minutes of conversation before his death, entered into some kind of special relationship due to the foreseeability of a risk of injury that might therefore give rise to a duty of care. As a result, Wheeler owed no duty to John and therefore is not liable under principles of negligence."

Though the court also rejected Pine Haven's indemnification claim, it dismissed Wheeler's state-law cross-claims for contribution, as she is not a tortfeasor eligible for recovery.

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