Auston Wingo (left) in a Pulaski County Public Schools memorial fund photo, the Pulaski County YMCA pool, as seen in a virtual tour video (YMCA/Jessie Woods screengrab)
A lawsuit was filed against a YMCA in Virginia nearly two years to the day that 5-year-old Auston Wingo, Jr., drowned in the deep end of a pool. Though an investigation of the Dec. 6, 2021, drowning ended with no criminal charges, the lawsuit seeking $15 million in compensatory damages and $5 million in punitive damages for gross negligence on the part of Pulaski County YMCA employees on duty that day.
An investigation of Wingo’s death established that 38 children were at the YMCA, an “increased number was due to Pulaski County Public Schools conducting virtual learning on that day,” and a majority of those kids were playing in the pool. There was one lifeguard and three child care workers on duty.
Auston Wingo did not know how to swim, employees should have been watching him, and only having one lifeguard on duty was an “extremely dangerous risk,” the Dec. 4 lawsuit filed by Contessa Gallimore alleged.
The lawsuit claimed that the lifeguard had an “unobstructed view” of the deep end of the pool where Wingo drowned but was looking at a cell phone while 34 children were in the pool. Meanwhile, the child care workers “were not properly stationed on the pool deck so as to be able to supervise the children in the pool,” the suit said.
Two children were the first to notice Wingo drowning in water 8 feet deep, the plaintiff said, “approximately thirty-six (36) feet in front of the lifeguard stand, without being noticed by any of the Defendants.”
Bedford Commonwealth’s Attorney Wes Nance, the special prosecutor who investigated whether Wingo’s death was a criminal matter, ultimately concluded that no charges should be brought.
Wingo’s death was “clearly not intentional,” so murder and voluntary manslaughter charges didn’t apply, and “failure to see the child in need of aid or saving” did not rise to the level of involuntary manslaughter, Nance said.
“What the legal precedent reflects is that mere negligence, or mere oversight, is not enough for there to be criminal liability. To be more specific to this tragic fact scenario, the failure to see the child in need of aid or saving is not sufficient for criminal liability,” Nance wrote in a February 2022 report. “Seeing the child in need and failing to act, or failing to even keep the proper lookout for a child having difficultly, would be enough to warrant criminal charges. In this case, however, the facts collected show the adults in question were keeping lookout on the pool, were fulfilling their legal responsibility, but unfortunately failed to see the child before it was too late.”
In December 2021, Pulaski County Public Schools and Critzer Elementary School said they were “devastated” by Wingo’s death.
“Auston was a kindhearted kid who exhibited unshakable optimism and an incredible love for his family, especially his older sister Tatyana,” one post said, encouraging donations to a memorial fund. “He will be missed far beyond what words can convey.”
Pulaski County YMCA CEO Dave Adkins told local CBS affiliate WDBJ that staffers and volunteers were also “devastated” by Wingo’s death and that the YMCA is “fully cooperating” in the legal process.
“The YMCA of Pulaski County staff and volunteers were devastated when Auston Wingo passed away following an incident in our pool in December 2021,” Adkins reportedly said. “We are aware that the YMCA of Pulaski County has been named in a lawsuit stemming from his death. While we cannot comment on pending litigation, the Y takes all allegations of misdoing very seriously and are fully cooperating in all facets of the legal process.”
Read the lawsuit here.
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