I-Team: Jury will hear Cowabunga Bay case after 6-year-old’s brain injury

I-Team Special Reports

LAS VEGAS (KLAS) — After four years of legal wrangling, a jury will finally get to hear the case of Leland Gardner, a 6-year-old boy who suffered severe neurological damage at a Las Vegas valley water park.

Complicated and emotional issues were in play on Wednesday as attorneys for Cowabunga Bay and other defendants tried again to get a judge to dismiss the case before it is ever heard by a jury.

This time, after years of motions and countermotions, Clark County District Court Judge Jerry A. Wiese II ruled the matter should be settled by a jury.

The judge set a trial date for October.

The case against Cowabunga Bay, first reported by the 8NewsNow I-Team in 2015, has gone to the Nevada Supreme Court — twice — without ever going to trial.

Leland Gardner receives treatment at home. (Matt Adams/KLAS-TV)

Leland was a happy, healthy 6-year-old when he visited Cowabunga Bay water park in May 2015. That all changed as Leland’s seemingly lifeless body was pulled out of the deep end of the park’s wave pool. He was revived but the damage was done. He suffered permanent catastrophic brain injury, and will need round-the-clock attention for the rest of his life.

Attorneys for the Gardner family say the water park displayed a callous disregard for public safety because while state law required 17 lifeguards to be on duty at a turbulent water feature of this size, only three were on duty at the time. The park’s general manager admitted they had never met the legal standard for lifeguard staffing at the wave pool.

The I-Team learned the Southern Nevada Health District had never bothered to inspect the park while it was open. Even after Leland’s accident, the park still didn’t assign 17 lifeguards to the wave pool. Plaintiff’s attorneys say it is too much to expect only three lifeguards to scan such a large, noisy, active environment.

“Ordinarily, if there were enough lifeguards there, he’d be concentrating on an area like this,” said Don Campbell, attorney for the Gardner family. “Instead, he’s concentrating on an area like this,” he said, gesturing wider with his arms. “That makes a big difference on his perception.”

This photo provided by the Gardner family shows Leland before the accident.

Health district inspectors visited the park after the accident. After finding again there were not enough lifeguards again, a $118 fine was levied. Months later, the district decided to lower the required number of lifeguards.

Defense attorneys have argued the lifeguard who pulled Leland from the pool got to him within 15 seconds. But the Gardners say the brain damage indicates he was underwater for several minutes. Lawyers for Cowabunga Bay told the court the 6-year-old may have suffered a heart attack while swimming and that there is no proof the lack of lifeguards had anything to do with the damage caused. They said this is a case that should never be heard by a jury.

Leland Gardner receives treatment at home. (Matt Adams/KLAS-TV)

“Just by seeing him, they will want to give him money,” Cowabunga Bay attorney Brett Godfrey said.

The average lay juror is dangerously likely to take one look at Leland Gardner, find out he was injured at a water park, assume the water park is owned by a corporation, and just want to give money to that family.

Brett Godfrey, attorney for Cowabunga Bay

Plaintiffs agree there are corporate owners, and that the park was directed to cut staff because it was under financial pressure at the time.

Leland had no history of heart trouble, before or after, they argued, and said the lifeguard on duty wasn’t legally certified but signed a false certification form after the accident.

“All of these facts demonstrate from Day One a consistent pattern of denial, deflection, and deceit by the defendants in this action,” Campbell said.

Defendants say there is simply no way to prove that having more lifeguards would have made any difference.

In court on Wednesday, attorneys said there have been 12 rescues performed at Cowabunga Bay over a one-year period. All 12 were in the wave pool.

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