Lawsuit claims Danville teacher on cell phone as student drowned in PE class

DANVILLE, Calif. (KGO) -- The parents of a teen who drowned during a PE class last May, filed a lawsuit against the district and the teacher on Tuesday.

"It's unheard of that someone, 15-years-old, would drown in a swim class," says attorney Andy Schwartz.

RELATED: Danville teen's drowning death ruled accidental

Schwartz is presenting the family of the Benjamin Curry, the 15-year-old who drowned. He says the family was finally able to watch the surveillance video of the incident.

Schwartz claims the video allegedly shows the teacher, Aaron Becker, who teaches at San Ramon Valley High School in Danville, using his cell phone as Ben drowned.

"It appears to us that the teacher had his cell phone in his hand and was looking at his cell phone. As he was supervising the children. We're not certain it's the cell phone, but it sure looks like the cell phone," claims Schwartz.

According to police reports, back in May, 2018, 57 students in Becker's 4th period PE class were told to tread water for three minutes. But then he added on another 30-seconds because one of the students touched a lane rope. Some say that suggests the teacher was paying attention.

But Schwartz says the surveillance footage suggests it was closer to four minutes, and that video also shows Ben was clearly struggling to stay afloat.

"You got to remember-- this wasn't the swim team or a water polo team. This was a PE class," says Schwartz.

Schwartz says every student in that class was interviewed by police, but that he was given redacted statement to look at. He says part of the lawsuit's purpose is to get answers to the "many unanswered questions."

The wrongful death lawsuit alleges that the San Ramon Valley High School teacher was negligent, saying Becker had "minimal training in water safety" and that his lifeguard certification had expired on March 16, 2018. It also points out that no lifeguards were present.

"Most other school districts don't allow these types of classes without other teachers and lifeguards," claims Schwartz. He also says Becker didn't take roll after the class.

Ben's body was found almost an hour later by another teacher.

Parent Bob Tharalsen says he's worked with teachers at the school over 30 years, and its teachers are very well qualified.

"I'm absolutely shocked. We have known the teachers for years, and they are so conscientious, that it is beyond my comprehension that this could happen," says Tharalsen.

In an email to ABC7 News, the San Ramon Valley Unified School District says it can't comment on pending litigation. But it did confirm that Becker is still teaching and coaching at the school.

The email reads in part:

The District has been and will continue to be in contact with the Curry family attorney to address their legal claim.

This event was and will remain a tragedy in our hearts and minds forever. The District sincerely apologizes to the Curry family and all community members. There are no words to describe the collective sorrow following the loss of Ben.

The District continues its internal review on policies and procedures related to SRVUSD pools. The District recognizes its responsibility to safeguard all students. Since the tragedy, the District has suspended the use of pools for all district physical education classes. The District also instituted a requirement that every time District pools are in use, dedicated and certified lifeguards will be present.

Schwartz says the family is not seeking criminal charges, adding that would be up to the district attorney.