Babysitter spared sentencing after 4-year-old drowns in apartment pool

A babysitter indicted on charges of failing to properly watch over a 4-year-old child who drowned in an apartment swimming pool in Busan had her sentencing suspended.

According to the legal community Tuesday, Judge Jang Ki-seok, presiding alone over Busan District Court's Criminal Division 7, suspended sentencing for a Kazakhstani woman in her 20s, identified as A. She was indicted on charges of professional negligence resulting in death and given a 2 million won ($1,490) fine, whose sentencing was suspended.

A was indicted on charges of failing to prevent the drowning of a 4-year-old boy, referred to as B, whom she was watching. The incident occurred at an apartment swimming pool in Busanjin-gu on Feb. 8, 2023.

B, who stood 109 centimeters tall, was playing in the water with another child in an adult pool with a depth of 120 to 124 centimeters while wearing a flotation device. He went underwater after the device became caught at the bottom of the pool ladder.

However, the investigation found that A had put a swimsuit and flotation device on B, then sat in a chair by the pool, wearing earphones and watching videos on her phone.

Another child who was swimming with B repeatedly asked the swimming instructor for help, but no immediate rescue was carried out. B remained submerged for about 2 minutes and 44 seconds and was in cardiac arrest when he was taken to a hospital, where he died despite treatment.

The trial focused on whether A, as the babysitter, had a duty to watch over B during his swimming lesson.

A's side argued that her duties as a babysitter were limited to taking B to and from the swimming lesson. Observing and protecting the child during the lesson itself, they said, was not part of her contracted work.

The court also found it difficult to conclude that the babysitting contract included a duty to observe and protect the child during the lesson. It cited testimony that B's guardian had asked A to accompany him to and from the lesson and to wait until it ended.

However, the court found that, separate from her contractual duties, A had a "duty of care under the circumstances" to prevent the accident.

The court noted that A had taken on the task of accompanying B to and preparing him for the swimming lesson, which carried inherent risks, in place of his guardian. It also noted that she remained at the pool throughout. The court also weighed A's location and behavior at the time of the accident, the other child's request for help, and how long B was left in the water. It also considered the absence of a separate safety officer, concluding that A had a duty of care to prevent the accident.

The court held A responsible for professional negligence resulting in death, saying she should have watched B from an appropriate position to ensure his safety and prevent the accident.

Earlier, the swimming instructor who was also indicted over the accident was sentenced to one year in prison, suspended for two years. The official responsible for pool safety management was fined 5 million won.

Regarding A, the court said it considered that her degree of negligence was less severe than her co-defendants' and that the victim's guardian did not actively seek punishment for her. It suspended sentencing on her fine.