At the height of a balmy California summer, there is nothing more delightful than a dip in a brisk pool. Unfortunately, these water-filled luxuries are also extremely dangerous. Each year, thousands of people die tragically in accidental pool drowning accidents. Even more troubling is that the youngest and most vulnerable in our society are substantially more likely to die in a drowning accident—drowning is the second leading cause of death among children under 14, and African American and Latinx children are 3 to 5 times more likely to drown than white children, according to the CDC.
Many of these swimming pool drownings could been prevented if swimming lessons were more accessible and pool owners took appropriate safety precautions. However, lacking stronger safety enforcement and infrastructure investment, Californians are at a particularly high risk. Here’s what you need to know about swimming pool drowning, according to a the Los Angeles personal injury lawyers at The Dominguez Firm.
Who is responsible for a swimming pool drowning?
The question of legal liability for a swimming pool drowning depends on the specific facts of a given case.
The first factor to take into consideration is who owns and operates the pool.
Privately Owned Swimming Pools
If the pool is privately owned, the pool owner may be liable for any injuries that take place in their pool under the parameters of premises liability. Property owners have what is called a “duty of care” in relation to visitors to their property—in other words, they have a legal responsibility to ensure the safety of guests and take proper safety precautions to prevent accidents and injuries.
This duty increases when someone is on the property for the benefit of the property owner, for example if they are providing requested services like gardening or childcare. Likewise, property owners owe an extra duty of care when minors are invited to their property and must ensure that all children are adequately supervised when around the pool. If, for example, you invite your neighbors to a barbeque and one of their children accidentally drowns in your pool, you may face a lawsuit for negligence from the child’s parents.
In order to be successfully sued under premises liability, the petitioner must demonstrate that the pool owner was negligent in their duty of care to guests. At the most basic level, negligence occurs when someone fails to do what a reasonable person should, in a given situation.
An owner may be found to have negligently if, for example, they failed to install fencing around their in-ground pool, they failed to provide adequate supervision to guests, or they did not properly maintain their pool.
Adults on the property who are not invited guests or conscripted service providers—in other words, trespassers—are generally not owed a duty of care by the property owner and are thus legally responsible for their own injuries they incur while on private property. However, pools are considered an “attractive nuisance,” and pool owners owe a duty of care to minors even if they have accessed the property illegally. Private pool owners should take steps to prevent access to underage trespassers.
Publicly Owned Swimming Pools
Technically speaking, public pool operators are subject to the same premises liability as private pool owners; however, many public pool operators will require that guests sign a liability waiver as a condition of being granted access to the pool. Another common practice is for public pool owners to post signs stipulating that pool users waive liability, obviating even the request that patrons sign a paper waiver.
Whether or not these waivers are legally enforceable is an open and contested question. In general, guests cannot waive a pool owner’s liability for accidents resulting from gross negligence or recklessness on the part of the owner. For example, if the pool owner intentionally pushed you into the pool, you still have grounds to sue even if you signed a liability waiver.
The inclusion of language like “users waive all liability” in waivers is misleading in this regard, and in some instances pool guests may still be able to file a successful lawsuit even if they signed a waiver. If you find yourself in a complicated pool liability case, consult with one of our experienced swimming pool drowning lawyers to decide how best to move forward.
Government swimming pool
What about government-owned pools, for example those operated through your municipal Parks & Recreation Department? Although government pools are subject to the same principles of premises liability. However, a private citizen cannot directly file a conventional civil lawsuit against the government. Instead, you must follow the protocols set under the California Tort Claims Act specifically relating to claims filed against government entities. This procedure is much different from filing a conventional lawsuit, including a stricter timeline and certain restrictions. Again, it is always best to consult with a lawyer before pursuing any sort of legal claim.
Causes of swimming pool drownings
Swimming pool drownings can be caused by a variety of factors, most of which are entirely preventable. According to the CDC, men, children, and African Americans have the highest risk of unintentional drowning.
Some of the most common immediate causes of swimming pool drownings include:
- Lack of swimming ability. Over-confident swimmers may exceed their physical capacities while untrained swimmers may not realize the risks involved. Most schools do not require swim education, and undeserved communities have limited access to public pools. This results in high numbers of non-swimmers which increases the risk of drowning, especially for members of these communities.
- Lack of protective barriers or fencing around the pool. Especially in the case of in-ground pools, children or inattentive adults may not see the pool and accidentally fall in.
- Lack of supervision. This is especially the case with young children who do not yet know how to swim. While you don’t necessarily need a licensed lifeguard on duty 24/7 at your home pool, you do need to be sure that someone always has their eyes on any children in the vicinity of the pool.
- Slip-and-falls. Lifeguard exhortations that pool-goers not run on deck are well-warranted. Decks are often made of materials that can be slippery when wet, and victims are at risk of hitting their head on the hard deck during a fall. Such head trauma may result in loss of consciousness, which can significantly increase the risk of drowning.
- Panic while in the water. Very often, unconfident swimmers will panic while in the water. This panic can lead to hyperventilation and thrashing movements that increase the likelihood that the swimmer will inhale water or sink below the surface.
- Concussions, seizures, or heart attacks. Sometimes, swimmers will suffer an unrelated health event while in the water, leading to water inhalation and temporary paralysis.
- Use of alcohol or other impairing substances around a pool. Most accidental drownings among adults and adolescents involve the consumption of alcohol. Alcohol impairs judgment, slows reaction times, and significantly affects coordination and basic motor skills—all factors that significantly increase the risk of drowning.
Compensation for swimming pool drownings
As with all personal injury claims, victims injured in non-fatal drowning incidents can expect to be compensated based on the severity of their injuries and any residual disability. In general, a victim can claim compensation for:
- Medical bills, including post-emergency follow-up appointments
- Physical and occupational therapy
- Psychiatric counseling
- Loss of wages
- Loss of earning capacity
- Pain and suffering
- Permanent disfigurement
- Loss of consortium (if the claimants injuries impact her ability to enjoy companionship, moral support, or intimacy with her spouse or domestic partner)
In incidents involving a drowning death, the victim’s family may file a wrongful death claim. A wrongful death lawsuit may claim compensation for:
- Funeral and burial expenses
- Income that the deceased would have earned, had they not passed away.
- Loss of support and companionship
The lawyer team at The Dominguez Firm are experienced in handling swimming pool drowning cases and can advise you of your best options for pursuing legal compensation.
Swimming pool drowning and injury statistics
- Approximately 3,500 Americans die each year in drowning incidents—that’s roughly 10 drowning deaths per day.
- Drowning is the second leading cause of death for toddlers aged 1 to 4 and children ages 10 to 14.
- Approximately 830 children under 14 die per year in drowning accidents.
- Approximately 3,600 children per year suffer non-fatal drowning related injuries.
- More than half of drowning victims treated in emergency room require hospitalization or further care
- California had the third-highest number of fatal child pool and spa drownings during the summer of 2018—behind Texas and Florida.
After a swimming pool drowning or injury accident, what should you do?
With any sort of accident resulting in traumatic injury, time is of the essence. The more quickly you act, the better the outcomes for the injury victim.
- Call 911 or seek medical attention. Have someone call 911 immediately and provide a full accounting of the situation. If you are at a pool with a lifeguard, they will be trained in CPR and first aid. This sort of training is required for many professions and activities, so inquire widely as to whether anyone is CPR trained. *Note: avoid administering CPR if you are untrained, as you may cause additional harm to the victim.
- Get contact information from everyone on the scene or who may have witnessed the incident. If the accident occurred at a public pool, request to file an incident report with the management. Take photographs of the deck and pool area where the incident took place, including any possibly defective equipment that may have contributed to the accident. Consider filing a police report, especially in cases of wrongful death or gross negligence on the part of the pool operator.
- Once the victim has been stabilized, document all injuries that resulted from the accident. Take photographs of visible injuries and take notes of any non-visible symptoms. Be sure to keep copies of all documentation you receive related to the victim’s treatment, including medical bills, diagnostic test reports, prescription information, emergency room records, etc. Consider keeping notes relating to all conversations you have with doctors or medical professionals, police officers, witnesses, and related parties.
- Contact an experienced swimming pool drowning lawyer. Be sure to have all the foregoing documentation available to best inform your lawyer of the facts of the situation and the strength of your evidence. Avoid talking to representatives of any insurance firm without your lawyer present. The Dominguez Firm brings decades of experience in personal injury litigation to the negotiating table and can help you to construct a robust legal claim, as well as navigate the complicated claims process.
What if the injury or drowning occurs at a family or friends
An already difficult situation is made even more so when an accident occurs at the home of a friend or family member. Unfortunately, research suggests that guests at friends’ or family members’ pools are up to six times more likely to experience a drowning incident than at a public pool. This may be because we feel safe in the spaces and company of trusted intimates and therefore let our guards down.
So how should you handle the aftermath of a drowning injury that occurs at a friend’s or family member’s home? If it is the case that the property owner carries homeowner’s insurance, then their policy may cover accidental injuries on their property—though will be less likely to cover wrongful death.
If they do not carry an insurance policy or their policy doesn’t cover the accident, and you are unable to come to a settlement privately, your only recourse to collect compensation would be through filing a legal claim. This, of course, presents unique challenges to your personal relationships.
Ultimately, the decision about whether to pursue a legal claim will come down to your personal judgment and situation. Should you choose to pursue a legal or insurance claim, consult with a personal injury attorney to find out how best to pursue your claim.
Help Proving Liability
Proving liability for a swimming pool injury accident is often very complex and typically includes proving negligence or premises liability against a private individual or entity such as a health or athletic club. Building and safety codes may require pool owners to have safety gate so children do not have unsupervised access to a pool.
In other cases, if a public entity, such as city, county, or school, then you must adhere to governmental torts claim rules, which have many quick deadlines and pitfalls.
If you or a loved one has been injured or killed as a result of a swimming pool accident, please do not hesitate to call us for a free consultation at 800-818-1818. We are experienced swimming pool accident injury lawyers that will fight to get you the justice and compensation you deserve.