Can Employers in the Business of LifeGuarding, Enforce Depraved Indifference to Certain Human Lives?
Just a .02, and to try to not mix issues, for that often makes muckmire.
I’d just say, if the facts are a person was drowning having drifted or swam out of bounds as often happens in big water currents, and regardless of how they got themselves in that situation, and a person who is trained to save lives, saved the person from peril… then KUDOS are in order, not kicking around a person of such decent moral character and a protector of human life.
There’s been a stir-up about a 21 year old lifeguard, Tomás Lopez, fired from his job in Hallandale Beach Florida, from and by the outsourcing company that is not resident in Hallandale Beach [Broward County]… “Jeff Ellis and Associates.” Tomás was fired for running outside of the boundaries he was patrolling– in order to help save the life of a drowning person.
Three other lifeguards were on duty at the beach watching the appointed territory while Tomás sprinted about 1400 feet down the beach to help. “Jeff Ellis and Associates” contract to patrol the Hallandale Beach beach with four lifeguards and one supervisor is $334,000 annually, for short hours 365 days a year. They also lifeguard a couple pools in the community. The life guard’s pay is $8.25 an hour, and without benefits.
Though the lifeguards are on the beach each day, their hours are actually short, hardly what I’d think of as total coverage for the swimmers who surely swim before 9:15 am and after 5:30 pm, especially those who work and have families:
9:15am – 4:45 pm October 1 – March 31
10:00am – 5:30 pm April 1 – September 30
(from the Hallandale Beach website as of today)
What I do know, is the COMMUNITY of Hallandale Beach, led by mayor Joy Cooper (who early on was said to be out of town and unavailable for comment) –in the midst of this squall– ought use this event to examine both contractor and any current or subsequen contractor’s employment contracts to make sure they are up to the moral, ethical and legal standards of protection they want… for their community, for other souls who are not of their community.
As it stands, it appears the employer’s current contract opens the community for all manner of law suits, charges of unethical behavior, and moral turpitude.
1. (only one of several legal issues). I’d like to know if employment contract is, as they are in the state I live in, “at employer’s will/pleasure.” Meaning one can be fired for anything employer deems, including unjust firing. When employed at will, any kind of firing is justified. However, this alone would not protect the citizens/families of Hallandale Beach town from law suits for other reasons that have to do with care and protection and safety of human life.
2. (only one of several ethical issues) Many hold ethics as a higher standard than the law often. I’d want to know the employers’ ethical stance about seeing life in peril of perishing– and literaly insisting their employees do nothing about it when one is equipped to do everything about it–and how that jibes with their legal stance in employment contracts. And how that jibes with the Hallandale Beach families.
3. Community: I’d like to have the entire community polled to ask first of all, are they glad or are they mad about a life being saved that stands outside their boundaried area of protection. If it were one of their kids swimming outside of bounds, would this change any conclusion. What guideline would they like inserted in employment contracts re lifeguards so THEY dont be sued should some person they know or dont know, swim out of bounds, and was seen in distress, and no one did anything to try to help.
Just my .02, there are literally hundreds of thousands of men and women who daily attempt to protect other human beings and creatures, in ways that are outside the exact perameters of their job descriptions.
4. Which brings me to this: it can be guaranteed that any human being of heart, who sees another innocent human being in peril– and who could intervene but does not– will open themselves to winding up with a lifetime case of severe PTSD if there is no subsequent intervention.
5. In another world, had lifeguards not rescued a drowning person outside their boundaries made by their employers, it would be an interesting legal point to argue in a law suit against the employer that the employer’s policies forcing employees NOT to rescue a drowning human being [via the employer's threat of termination of employment], thereby caused the lifeguards lifelong damage, loss of ability to work, and loss of income.
I would also like to think about in such scenario, that an employer’s allegedly morally indifferent policy could be argued strongly as ‘depraved indifference to the value of human life.’ [so deficient in a moral sense of concern, so lacking in regard for the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes a crime. Depraved indifference focuses on the risk created by the defendant’s conduct, not the injuries actually resulting.]
Joe Windish has covered the story here.
CODA
Jeff Ellis, of the outsourced lifeguarding contract said:
While he does not doubt that Lopez was “good intentioned,” Ellis said the company’s first responsibility is to ensure that service for its zone is not disrupted, potentially endangering beachgoers there and opening up the company to liability issues.
“We are not a fire-rescue operation. We are strictly a lifeguard organization,” he said. “We limit what we do to the protected swimming zones that we’ve agreed to service.”
That’ potentially endangering beachgoers’ sounds like, while potentially putting all citizens of the city in the path of lawsuits, esp since in protest of the firing of Tomás, one other lifeguard quit with more rumored to be thinking over resignation too. So much for keeping beachgoers safe.
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Also, Hallandale Beach city is former Seminole hunting and gathering land as well as sacred water …
This below is the City’s history as written by someone for the city’s website. {also from today}. It carries the very old bias that a place is ‘unsettled’ until/unless a certain folk show up who are not native to the land.
Additionally, if one Googles the city on news sites, one sees an embattled city council and mayor about other issues such as transparency about how much is being paid a certain advisor to the city, etc, the usual small-town that grew too fast, merry go round)
City of Hallandale Beach – City of Choice
Town of Hallandale Beach
Hallandale officially became a town on May 14, 1927. By that time, there were 1,500 residents, street lights, and electricity in the community. In 1947, Hallandale was reincorporated as a city, and was allowed to annex land to the east. In August of 1999, the city officially changed its name to Hallandale Beach.Original Indian Hunting & Gathering Area
The area that is now known as Hallandale Beach was not even settled until the late 1800′s, when Henry Morrison Flagler expanded the Florida East Coast Railway to Palm Beach in 1895. Before then, there wasn’t much to Hallandale Beach except swamp and a gray, sandy soil called marl. The Seminole Indians would hunt in the area and gather cootie root, which was used to produce starchy dough.First Settlement
Flagler recruited Luther Halland, son of a Swedish minister and brother-in-law to one of Flagler’s agents, to start a Swedish settlement south of the Danish settlement of Dania. With the assistance of an immigrant named Olaf Zetterlund, Halland began promoting the frost-free subtropical climate and cheap land of Halland (later to be named Hallandale). Halland set up a small trading post in the new community and became its first postmaster.Farming Community
Settlement was slow, with only a dozen families in town by 1900 – seven Swedish, three English, and two black. The first school was built in 1904 and had only ten students. The first church, Bethlehem Lutheran, was established in 1906. Originally, Hallandale was a farming community, with farmers using the beach only for recreation.
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I’m not sure where you’re from, but if you knew anything about living on the ocean, you’d know that there’s hardly anyone in the water after 5pm, and the reason why.
You can’t have lifeguards on duty just in case someone decides to swim. Lifeguard hours are posted and those who decide to swim in the middle of the night, do so at their own risk.
That being said, this has opened a can of worms for us who live on the beach, who assumed lifeguards, when on duty, were there to rescue.
There are a couple of issues that don’t seem to get mentioned. You can go on and on about morality but the litigious nature of today’s society means everyone has to stop and thing before acting. We all want to help but if you have responsibilities and people depending on you you have to think and be concerned about the possible consequences of actions. Then we have the actual event in question. I don’t know all the details but we do know that a lifeguard left his post to go see if someone needed aid. The area he went to is a swim at own risk area and the company the lifeguard worked for was contracted for a specific area. I can see several issues right off the bat. One the liabilities are obvious. Operating outside the scope of duties so insurance may not cover his actions. Two left his post so if something happens while he is gone there is that issue. He may actually be violating the contract his company has with the city adding even more liability. If he got injured who would be responsible? Since he was acting outside his duties workers comp, other insurance, may well not cover anything and how much would the company be obligated or even able to cover. It’s all well and good to assume every corporation is some giant monster but many are small mom and pop businesses who just want to make sure their house is safe. And then we have the fact that he actually wasn’t needed and did nothing ending up leaving his post without doing a thing. People haven’t developed these rules in a vacume. Heck it’s good press why wouldn’t they want people to rescue anyone possible. It’s because people get sued. All the time, for stupid reasons, getting absurd amounts of money. We trained these corps so we shouldn’t whine when they do exactly what we beat into them.
I agree that Tort reform is needed in this country, not just for this incident, but when Obamacare rolls out. You can insure everyone, but you can’t force doctors to take on new patients unless you address their increased risk.
Even so, the company should have anticipated the public outcry at the firing of a lifeguard for saving someone. So short-sighted.
We have become a nation of lawyers, which is why there’s no common sense anymore.
First, Florida has a Good Samaritan Law, Florida Statute 768.13 that legally protects those who assist in an emergency. It is directed primarily at medical professionals and quasi-professional, but the language covers anyone who assists.
Second, from personal experience: the best way to succeed in court is to do the right thing in life. I’d much rather defend this lifeguard for what he did or was prepared to do [he did not pull the victim from the surf but only tended to him with an off duty nurse while awaiting the ambulance] than defend him for refusing to assist when he could have helped.
Just my .02 – as the Archangel would say.
Thank you, Dr. E
In my book the irresistible, god-given, natural impulse to save a human being at risk will always trump any “litigious nature”. Thank God for that. And no man (or woman) should be made to pay for that.
Opinions expressed regarding concerns of liability must be uninformed about:
If anything it would seem that the company would have left themselves more open to litigation by NOT responding to a life threatening incident that their employee knew about.
I grew up on big water “justTrish” and there is nothing, NOTHING that keeps a baby, or a teen or any person of any age from being in the shallows or wandering around during tides. When we lived on the Gulf, the same is true. Being wise clearly does not apply to all. Google tells the tale of unending deaths in the ocean and in big waters re beaches, after 5pm.
JT, I lived on the beach and in the water. Those of us that “live” in the water have a code. We look out for one another…period. The ocean is a very dangerous place and even the most experienced of us can get into serious trouble quite quickly.
ee. Tomás did help/ not sure what news sources you are reading. Read my article, there were three other lifeguards fully present at all times during Tomás’ short time away. The amount of money the lifeguards are paid vs the amount of the contract, make the outsource agency no ‘mom and pop’ business as you say.
Seems difficult to glean the size of the company from the information available. They provide 4 lifeguards, plus supervisor at this beach during all hours the beach is open. Even at the low hourly rates, it’s probably $50/hr total for the five people…and they provide services at city pools as well…and do so year round. Doing the math, with their $334,000 annual contract, doesn’t leave a huge profit.
On the other hand, this may be one of many such contracts which could mean a much bigger company. What got me thinking Mom & Pop [EEllis isn’t the only one} is that the reports I read had the company CEO and the supervisor both with the same last name.
Anyway, I’ll revise my prior assertion that this is a Mom & Pop to say instead that there isn’t enough info to tell for sure.
tidbits
Update: the other lifeguards quit. All were offered their jobs back and refused. THAT is how America is supposed to work. We see injustice and refuse to give in to it.
EEllis: “We all want to help but if you have responsibilities and people depending on you you have to think and be concerned about the possible consequences of actions.”
There were no other emergencies at the time. I’m sure if someone was drowning in the lifeguard’s zone, he would have helped out.
So… if you’re saying the employee is supposed to think about lawsuits…. what if there are two people on the beach. One is a good samaritan, always helps others and very easy to get along with. The other is known for filing lawsuits at every little thing. Let’s say that the good samaritan is drowning. Should the lifeguard help him (knowing he will never file a lawsuit)? Or wait to see if Mr. Litigation is going to run into trouble in the water… and if he does run into trouble, then he would definitely sue if no one helps?
I feel that is the point you are making…. that one has responsibilities to ensure their employer is not sued and one has to weigh the risks (and lawsuit potential) when making decisions. If that’s not the point, then it should be a brainless decision to help someone who is drowning and save a life.
The fact is that there was no one else in trouble. The lifeguard did what he was trained to do. Furthermore why should an employee have to choose between saving someone’s life (which I will point out for the people who seem to have forgotten… is IRREPLACEABLE) and saving his company’s ass from a lawsuit?
I’m not sure why there is even a discussion on whether the company which employs the lifeguards is is a “mom and pop” business or large corporation. I would think that a “mom and pop” business would be much more attuned to the community than a large business. If the company IS a mom and pop business then that just makes them seem even more heartless for disregarding the safety and health of the people in their own community.
I think the lifeguard did the right thing and the company was wrong to fire him. However Tomas was a trained lifeguard being paid to be a lifeguard at the time of the rescue, and those implying neither he nor his employer had any legal risk are a little unrealistic.
I usually cringe when people talk about wishing for “the good old times”, but in this case I wish we could go back to “the good old times”… when people took care of each other as a community and no one would sue another because they were saving a life.
Update: Two other lifeguards didn’t quit, they were FIRED by the same asshole manager.
http://www.miamiherald.com/2012/07/05/2882904/company-reviewing-firing-of-lifeguard.html
It appears this is bigger than a mom and pop company. This incident caused the loss of at least six lifeguards. Seems the guards are more morale and humane the the company…
The company that pulled this PR fiasco isn’t a mom an pop firm. Check out the company web site. It’s a multi state corporation…
http://www.jeffellismanagement.com/about-us/our-clients
More Halliburton than the corner store.
“Someone was in danger,” explained Mr. Lopez, 21, who lives in Davie, in Broward County, and started his lifeguard job four months ago. “I wasn’t going to choose my job over someone in danger. My job is to help people in distress. It was a moronic rule in my opinion that they set up. I understand the liability issues, but. …”
(NYT)
Good for you, Mr. Lopez
Well first what would they say? “Sorry your kids were in danger the whole time?” Sure there were 3 other guards covering how much area? You do know that every rescue must have at least 2 guards so ……… Basically the idea that there was not some lowering of ability to respond is absurd on it’s face. It’s if it is worth the cost that would be the issue. And mind you this guard did absolutely nothing, had zero effect at all, while leaving his area. Second $334,000, if this is the only location for the business then it sure is a mom and pop. Could be a nation wide corp also but the idea that this is some vast money maker is out of touch with reality. Someone could make a living off this contract but they would be working and they would not be a 1%’er.
In this case the company needs to think about lawsuits. The reason being that we as a nation sue over and about everything.
He was 5 football feilds away from the edge of his area so unless he moves much faster than I he was unavailable for quite some time.
They have a massive 26 contracts in 3 states I’m sure almost all seasonal. If you think that’s Halliburton…….
Honestly this seems to be a pretty small business. This would be one guy getting a solid middle class living out of the business as well as providing employment for a few other people. The guy may be a prick but we really don’t know what went down there.
They have a massive 26 contracts in 3 states I’m sure almost all seasonal.
Please show me where this came from. This company seems to have two web sites which show that the company is multinational in scope.
http://www.jeffellismanagement.com/about-us/jem-history
https://www.jellis.com/about-us.html
Isn’t Bahrain and Dubai suburbs of Miami?
Yes, just a mom and pop outfit that is scheduled to have a booth in Singapore at a trade show.
http://s15.a2zinc.net/clients/IAAPA/AAE2013/Public/Booth.aspx?BoothID=122302
I wonder what kind of salary JE and the board pull in. Probably just a little more than $8.25 an hour. But $8.25 an hour goes far in Singapore…
Sure the 21 year old kid(hero) can afford a $550 per night room at the casino in Singapore.
http://www.agoda.com/asia/singapore/singapore/marina_bay_sands.html
@tidbits, I put a pix of Florida sec of state record on Jeff Ellis and Assoc at bottom of CODA above; I havenet read the full records yet. Ellis and Assoc seem to have operated or are operating under three different points re business names, and appear to have a large presence, and domicile in Texas perhaps rather than Fla.
@E.ellis, re Jeff Ellis and Assoc’s work being seasonal as you thought, in Florida their contract is 365 days a year, as written in the article. It is not seasonal work in Florida because it is in that area, warm all year.
Thanks, Dr. E.
Looks like one LLC in FL. The other Fl corp shows as inactive. Based on your comment, it appears there is a TX corp that is registered to do business in FL.
From this and other references in the thread, I’d say the company is bigger than Mom&Pop, but smaller than Halliburton (considerably smaller).
I’d also guess that, given this fiasco, the size of the company is likely to shrink in the foreseeable future.
Has anyone interviewed the person who was drowning and gotten a reaction about one of his rescuers being fired over rescuing him? I haven’t seen that, but if anyone has, it would be of some interest.
Don’t know if anyone has interviewed the man rescued, but he may have something to say on July 9:
“On July 9, Hallandale Beach officials will present former lifeguard Tomas Lopez, 21, and his co-workers who supported him, with the keys to the city for their courageous actions.
According to the press release, the man Lopez and his fellow lifeguards helped to save in the near-drowning incident on July 2 will meet his rescuers for the first time.”
@thanks Tidbits for those insights on the Sec of State’s roster image. I’m not sure what mom and pop ideal is in 2012. I know what it was up to 1977 as my dad has his own shop. I’d have to trackforward from what I knew he made back then and age it. To me, m/p outfit means struggle to pay rent, keep customers, go up against larger outfits who constantly try to trounce lowballing prices to your customers, act competitively without losing shirt (there’s only so much a mom and pop outfit can do to hold on when the ‘hardball’ players see they have turf and come in and undersell them as has been corp strategy since forever), and feed family, pay for car and insurance, try to stay well. And onward.
@thanks Dorian for the update on that stunning irony. re keys to city. Smart mayor.
Doing a little google fu reportedly Jeff Ellis was a life guard for many years who then transitioned into consulting for primarily water parks and ended up being a pretty big deal in that industry. That would be Ellis & Assoc. Much later He opened a different company that provided personnel for lifeguards on contract.