December 2016 - Parks & Recreation - 23

substituted as the party in interest to pursue his negligence and premises liability
claims and appeal against DEM.
The director of DEM at the time of the
incident, W. Michael Sullivan, testified that
the man-made pond was " filled mechanically " and " treated much like a swimming
pool. " Sullivan testified that, in June 2008,
he made the decision to fill the pond. Sullivan had explained that, in February 2008,
World War II Veterans Memorial Park had
been " slated for closure " in the budget presented to the legislature that year. However, at the end of June, after local officials
expressed concern, he made the decision
as the director of DEM to fill the pond.
Sullivan testified, in July 2008, there
were " no swimming " signs posted, but
DEM " expected that there would be people using the park. " Sullivan explained
that facilities such as the bathhouses
were open, but he stated that he " did
not ever consider the beach to be open. "
Sullivan agreed that it was prohibited under DEM rules to operate the pond on a
" swim-at-your-own-risk " basis.
Moreover, Sullivan explained that, " If
there were not lifeguards present at a swimming facility, that the swimming facility was
closed. " Further, Sullivan explained that, in
July 2008, staff on-site at the park had been
directed " to tell people that the beach -
that the water was closed to swimming, to
point to signage and refer them to that, but
it was not expected that they would stand
there and order people out of the water. "
Too Shallow for Diving
The Associate Director of Natural Resources for DEM, Larry Mouradjian,
also testified at trial. He described the
pond, explaining that there was a designated lap pool, a swim area and a diving
platform. He testified that he had seen
the pond with and without water, and,
based on his opinion, diving near the
wall into the lap pool would be dangerous because it was too shallow. Mourad-

jian testified that the pond was typically
not filled " until such time as we were
able to fully staff the swim area and invite the public to swim at the pond. "
Mouradjian stated that he thought the
decision to fill the pond was untimely " because the things normally done to prepare
the pond to be open to the public had not
been done. " He testified that he had spoken to Sullivan and recommended that the
pond be drained or left empty until DEM
" began to acquire the resources necessary. "

manager for DEM in 2008, testified that
there was no " system that was in place to
warn people of the depth of the water. "
However, he stated that " if a patron asked
an employee, they would advise them as to
the depth of the water, and if they asked
about diving, they would tell them the
rules and regulations. " Mitchell agreed
that Roy's injury was " generally " the type
of thing that he could foresee and he was
concerned that it was the kind of injury
that would happen when he was told to fill

In determining landowner liability for injuries in a natural
or man-made body of water, the applicable legal standard
of care will generally depend on whether or not the area
was designated for swimming.
Shallow Water Risk
The DEM Chief of the Rhode Island Division of Parks and Recreation, Robert
Paquette, and the Deputy Chief, John
Faltus, also testified at trial. Paquette
confirmed that Mouradjian was hesitant
to open the pond and that Mouradjian
told him, " We should really look into
this. " However, Paquette testified that
Sullivan was ordering him to open up
the facility. Paquette also testified that he
had never been told that " there was ever
a problem with shallow water " along the
wall of the pond.
Faltus testified that he was never " officially informed " that people were diving
at the pond, but he had " heard hearsay
that there's possible diving activity after
hours. " Faltus stated that generally they
did not allow diving at any state swimming area. However, he also admitted
that people were " allowed to possibly do
some shallow-entry dives, " explaining
that whether diving was allowed " depends on how you define 'dive.' "
William Mitchell Jr., the regional park

the pond before lifeguards had been hired.
Peter Lambert, a DEM caretaker supervisor who was employed at the World War
II Veterans Memorial Park from 1990 to
2008, testified about the diving policies at
the pond. He stated that diving had never
been allowed. However, he admitted to
seeing people periodically dive off of the
wall on the pool area, but not during hours
that the pond was in operation.
No Swimming/Diving Ignored
Kenneth Henderson, a seasonal laborer
for DEM who worked as a groundskeeper at the park in 2008, testified at trial
that he was working on July 10, 2008.
Henderson stated that he saw " about
half a dozen " people swimming in the
pond that day but did not tell them that
swimming was prohibited because, in his
words, he had " no authority. "
Laura Oliver and Carol Gear had also
been at the park on July 10, 2008, and testified at trial. Oliver testified that on July 10
there were no lifeguards, lifeguard chairs
or buoy lines in the pond and the foun-

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December 2016 - Parks & Recreation

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