A lawsuit that could have major consequences for
the burgeoning wave pool industry.
On September 21, 2018, Fabrizio Stabile died from a
brain-eating amoeba after visiting BSR Cable Park.
The following year, Stabile’s parents filed a wrongful death
suit against BSR in April of 2019, seeking more than one million
dollars.
The original complaint, filed April 9, 2019, alleged gross
negligence on behalf of BSR for a failure to keep the water safe.
Stabile’s family alleged that BSR had “actual subjective awareness
of the risks” but proceeded “with conscious indifference to the
rights, safety, and/or welfare of others.”
Stuart Parsons, the owner of BSR Cable Park, initiated
discussions to sell the assets of BSR in May 2019, less than a
month after the initial suit. The sale would have kept the
liabilities in shell corporations owned by Parsons but lacking
assets.
It was scheduled to close on January 6, 2020.
According to a motion filed by Stabile’s family in December
2019, BSR had a “paltry” $1.5 million liability insurance
policy.
The motion also alleged that a jury trial would result “in a
judgement of $15-20” million.
Fearing that they would lose the ability to collect on the
judgement, in December of 2019 the Stabile family requested that
the court protect the revenue generated from the sale. The family
claimed that the pending transfer was fraudulent, as it was made
with “actual intent to hinder, delay, or defraud” the Stabiles.
The family also alleged that Parsons and BSR engaged in numerous
acts to destroy evidence.
They claimed that BSR attempted to destroy any evidence of the
amoeba “through a massive chlorination of the surf pool” one day
before a scheduled CDC inspection. In a report, the CDC admitted
that BSR performed “high-level chlorination” which may have skewed
the water quality results.
They also claimed that Parsons “dropped his phone in Lake
Whitney just before being required to produce the text messages in
discovery.”
The motion also contained an email from The
Inertia to Stuart Parsons. The motion reads in
relevant part, “a reporter for The
Inertia, which calls itself ‘the definitive voice
of surf and outdoors,’ e-mailed Stuart Parsons.” Not exactly a
relevant point, but I thought it warranted mentioning that the The
Inertia’s tag line appeared in a 600-page legal document.
Later that month, BSR responded to the motion, asserting that
the claims of fraud and efforts to destroy evidence lacked any
evidence.
Emails within the court record from the Texas Dept. of State
Health Services stated that the amoeba was found in some of the
pools “but not the surf pool, presumably because it was heavily
chlorinated before samples were taken.”
They also stated that “there were extremely high counts of E.
coli throughout.”
On December 21, 2019, the court granted the Stabile family’s
motion to protect the cash sale proceeds, effectively stopping the
sale.
BSR sought to overrule the injunction, appealing to the Tenth
Court of Appeals in Waco, Texas.
A brief filed by BSR in January 2020 notably pushed back on the
assumption that Stabile was infected while at BSR. It alleged that
there was no judicial finding that Stabile was infected at BSR and
raised the possibility that Stabile encountered the amoeba while
working at the New Jersey Department of Environmental Protection,
which “involved collect[ing] water samples.”
On February 24, 2020, the Tenth Court of Appeals ordered that
the case be sent to mediation.
BSR objected the mediation, arguing that the issues surrounding
the injunction blocking the sale of BSR made “mediation of the
appellate issues impractical.”
In a brief filed by BSR in March 2020, BSR also recognized that
the parties had not been able to agree on a mediator and “further
time to consider mediators [would] not aid in an agreement.”
As of August 10, 2020, the suit is ongoing and the parties have
requested “oral argument.”
In July of 2019, another man drowned at the BSR wave pool,
though there is no evidence of a concurrent lawsuit.
This suit could have major consequences for the burgeoning wave
pool industry.
Many of the newer wave pools boast slabbing waves breaking over
shallow bottoms. Water quality or unsafe conditions could lead to a
myriad of wrongful death suits. Liability appears to be widespread
in these pools, ranging from the actions of the pool owner and
operator to the actions of fellow surfers.
A rise in wave pool litigation will likely lead to changes in
ocean lineups as well.
Surfing has largely remained shielded from legal intervention,
as courts have been hesitant to implement their own legal
standards. But, if courts are forced to adopt standards of care for
wave pool lineups, it’s likely that those same rules will apply to
ocean lineups.
Our unwritten rules may soon be legal jargon.
