In a previous post, a drowning accident discussed the issue of liability for deaths that occur during floods. In today’s post, the drowning accident lawyer will review the question of liability for drowning deaths involving active duty military personnel during deployment or during training exercises. Before continuing, consider the following information:
- A study published in the journal Military Medicine in 2007 revealed 71 confirmed deaths due to drowning during the first two years of the American military presence in Iraq. Of those deaths, it was determined that 52 personnel drowned after motor vehicle accidents in Iraq during the period 2003 – 2005.
- In May of 2016 Navy SEAL candidate James Derek Lovelace drowned during a training exercise where candidates are expected to tread water while their hands and feet are bound. According to a video recording of the training session, a SEAL instructor repeatedly pushed Lovelace underwater over the course of five minutes after the candidate showed obvious signs of physical distress. The San Diego (CA) medical examiner found evidence of a previously undetected heart abnormality but ruled that “… the actions, and inactions, of the instructors and other individuals involved were excessive and directly contributed to the death, and the manner of death is best classified as a homicide.” The Navy later declined to press charges against the SEAL instructor.
- On the evening of June 2, 2016 nine soldiers assigned to the 1st Cavalry Division at Fort Hood, Texas drowned after their Light Medium Tactical Vehicle overturned while attempting to cross a flooded creek during a training exercise. Although the accident occurred at a “designated low water crossing area,” no one recognized that the creek was swollen with water from heavy rain in the area and that flash flood warnings had been issued earlier that day that included the Fort Hood training range where the accident occurred.
It is an accepted principal of law that a combatant cannot sue a superior for any injuries received in a combat zone, even if the death was the result of a “friendly fire” incident in which artillery fire or an air strike is misdirected and causes casualties among “friendly” forces rather than an “enemy.” In the latter case, the superior commanding personnel are said to be immune to a civil lawsuit. The law isn’t quite as clear when a death or an injury occurs during a training exercise outside an active combat zone.
It can be argued that a member of the armed forces, being a volunteer in the first place, accepts the risks associated with training for a possible deployment to a combat zone and has thus waived their right to sue another service member or a branch of service. This argument falls apart upon a closer examination of the fundamental aspects of personal injury law.
In any type of training the trainer has a duty to protect the trainee from undue risk of harm, even if the training is meant to simulate actual combat conditions. Admittedly, this can be difficult to accomplish without some risk entering to a training scenario. However, since a branch of service will not be well-served by an injured trainee, much less one that has died from injuries, it is in the branch’s best interests to limit the potential for harm to a trainee by establishing safety protocols that must be strictly followed.
It is also in a service branch’s best interests to allow deviations from protocol if, in the opinion of the supervising personnel, such deviations are necessary and will not lead to the risk of injury. In the third example given above, it was the responsibility of the senior staff member to examine local conditions for safety hazards and a failure to detect greater than normal flow in the creek could be interpreted as a failure of the duty to protect.
Finally, training supervisors have an obligation to report any and all accidents in a timely and accurate manner. This allows for the identification of potentially harmful or dangerous training practices that may need modification in the future. Unfortunately, many training personnel feel that such reporting can be seen as a hindrance to career advancement and will often fail to report anything other than an accident that leads to a hospitalization.
In summary, it is accepted that accidents will occur during military training exercises, even in the presence of the most exacting supervision and safety requirements. However, there have been numerous reports of instructors “cooking the books” by either understating the seriousness of an accident or, in some cases, a deliberate failure to report an event. Since the military branch conducting a training has a duty to protect the safety of trainees participating in these exercises, any accidental drowning death occurring outside an active combat zone should be carefully scrutinized by trained accident investigators.
Any breach of this duty to protect, such as a deliberate attempt to falsify an accident report, may be considered as an indication that negligence has played a role in a drowning death and thus expose the supervising service members, and the service branch, to the possibility of being named as defendants in a civil wrongful death lawsuit.