Lifeguard’s family reaches settlement with town

Dec. 31--ORLEANS -- The family of collegiate swimmer Jack Jakubek, 22, of Newburgh, New York, who died May 28 during the town's lifeguard tryouts at Pilgrim Lake, has reached a settlement with the town, according to the family's attorney, James Grumbach.

In addition, Orleans Fire Chief Anthony Pike said Friday that he expects to meet soon with Orleans Town Administrator John Kelly and Orleans Public Works and Natural Resources Director Thomas Daley to work on improved safety procedures for the lifeguard tryouts. "It's definitely being worked on," Pike said.

On July 22, the Jakubek family sent a demand letter for $100,000 to the town based on allegations of negligence in Jakubek's death.

Orleans Board of Selectmen Chairman Sims McGrath said he couldn't confirm a settlement has been reached, but selectmen had met in executive session about the issue with a representative of the town's insurance company. The Jakubek family's attorney has been in talks with the town's insurance company, McGrath said.

Kelly was on vacation Friday and did not respond to a request by email for confirmation of a settlement. The town's insurance provider is the Massachusetts Interlocal Insurance Association (MIIA), and a part of that association called Cabot Risk Strategies handles the town's property, liability and worker's compensation insurance, and also works as an agent for other types of insurance the town buys, said Orleans Assistant Town Administrator Myra Suchenicz. A request for information made to MIIA on Friday was not returned.

"This is in the hands of the town's insurer because it is the insurance policy money that will pay whatever the amount is that is agreed upon," McGrath said. "I have gone on the record as having said this should be settled as promptly as possible. We all understand that we all lament the tragedy of this. I hope that this can be closed as soon as possible so that whatever healing can be done can begin."

The state medical examiner's findings on Jakubek's death were not available as of Friday, Cape and Islands Assistant District Attorney Tara Miltimore said. Grumbach said he has not seen a medical examiner's report. An autopsy was being performed, according to the July 22 letter to the town.

"However, the parties have agreed to a settlement, although the paperwork has not yet been finalized," Grumbach said.

In the July 22 letter, Grumbach described Jakubek, who had graduated May 14 from the State University of New York Cortland, as an experienced and record-holding swimmer with a nocturnal epileptic condition that was being treated and was under control. Jakubek had been a lifeguard in two previous years on Cape Cod and had successfully completed lifeguard tests. In the town's lifeguard tryouts on May 28 at Pilgrim Lake, the one lifeguard who was floating on a paddleboard to monitor the tryouts saw Jakubek raise his arm and saw him go under the water but "nonetheless failed to respond or follow-up, believing that Jack was 'kidding,'" according to Grumbach's demand letter.

The Grumbach letter describes the town's lifeguard tryouts as lacking proper oversight and safety precautions as the candidates completed the test that involved a run, a swim and another run. The candidates were not provided flotation buoys, to be carried on their shoulders, as they had been in the past, and there was no "buddy system" in place, the letter stated. The swimming test was not conducted close to shore, and the water temperature of Pilgrim Lake was about 50 degrees, and "quite cold," the letter stated. Approximately 14 swimmers took the lifeguard test, all at the same time, and no one maintained a count of the candidates or marked them physically, to help identify who was who in the event of an emergency, the letter stated.

"Jack drowned during the swim, and his absence -- and his body -- were not discovered until the conclusion of the final 'run' portion of the test, more than 30 minutes later," Grumbach's letter stated.

Under state law, a municipality is liable for its negligence up to a cap of $100,000 in connection with a claim for personal injuries or wrongful death, according to Grumbach.

The lifeguard testing on May 28 had begun with a meeting at 8 a.m. at town hall, said Pike, one of four emergency rescuers at the pond to monitor the lifeguard fitness test. Pike said that during the test "it was determined that one of the individuals that had entered the water was missing." Jakubek was reported missing at 8:49 a.m., Pike and Orleans Deputy Fire Chief Geof Deering said. At that time a full fire department response began along with other agencies, including a county dive team.

Jakubek was found in 10 to 15 feet of water about 150 to 200 yards from the shore, Deering said. He was brought to the surface at 9:23 a.m., according to Orleans fire officials and the Cape and Islands District Attorney's Office, which led the investigation into his death. Divers tried to revive him as he was brought to shore on a boat, but he was declared dead after being taken to Cape Cod Hospital in Hyannis.

Pilgrim Lake covers 39 acres and has an average depth of 12 feet, according to a state report. It can be murky, Deering said.

The town of Orleans typically hires waterfront-certified lifeguards to work at Nauset and Skaket beaches from early June through early September, according to the town's website. The candidates are tested competitively, work 40 to 42 hours per week and are paid a starting salary of $14.65 per hour.

- Follow Mary Ann Bragg on Twitter: @maryannbraggCCT.

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