Swimming Accidents: Drowning, Injuries and Liability
Every year the joys of summer are marred by tragedy when swimmers drown or are permanently injured in near-drowning accidents. It takes only five minutes and less than two inches of water for a small child to drown, and it may all happen silently. It can be over in the time it takes to answer the telephone. It has been estimated that as many as 350 children under the age of 5 drown in pools each year and another 2,600 are treated for near-drowning incidents.
There are other dangers too, especially of spinal injuries or paralysis from diving into too shallow water or injury from slips and falls. Cases involving swimming injuries on private or commercial property fall into three general categories, while claims against governmental entities are somewhat different.
Some swimming-related injuries are caused by poorly designed or faulty products. In legal terms, a lawsuit based on this kind of injury is called a product liability case, and it can be brought against the manufacturer of the faulty product, a component manufacturer, or various parties involved in marketing the product. Faulty products can include things like a drain cover that catches a foot and causes a swimmer to drown, a pool cover with sharp edges that causes cuts or abrasions, a gas heater that explodes, or a sump pump that shorts and causes electrocution. Sometimes the design of the pool itself has been found faulty, especially when it is difficult to see where the pool is deep enough to dive or when the shallow and deep areas are not clearly marked on the pool.
Products used in and around the pool can also cause drowning or serious injury. Water slides, for example, can cause injuries if they have attachments where people can become entangled or have weak areas that may give way and result in falls. Flotation devices for babies and small children sometimes have faulty fasteners or weak areas that cause children to fall into the water. These should never be used without an adult standing next to the child. Children are sometimes impaled on sharp diving toys or injured by toys like water guns if pieces of the toy can become projectiles.
Injuries in or around swimming pools often happen because the owner or operator of the property hasn’t maintained the property or equipment in a reasonably safe condition. In legal terms, liability for this kind of carelessness is called premises liability. Both the owner of the land and the operator or possessor of the land is sometimes named as a defendant in this kind of case. Interpretations of what is a reasonably safe condition differ from state to state, and some states have different rules about the duty of the landowner to protect people who have been invited; people who haven’t been invited, but are there legally (i.e. a meter reader); and trespassers, who don’t have right to be on the property at all. Be sure to find out the specific interpretations used in your locality. The same standard is usually applied to both private homes and commercial areas.
Examples of situations that could result in liability because of poor maintenance include a poorly repaired area around the pool that causes someone to slip and fall, broken life-saving equipment that results in a drowning or serious injury, a loose ladder or stairs that cause a fall or a cut, an improperly maintained fence or pool cover that allows a young child to get into the pool and drown, or contamination in a pool that hasn’t been treated properly with chemicals that causes a serious illness.
Many states have laws—called recreational use laws—that exempt landowners from liability for accidental injuries if they open their land to the public for no charge. The duties of a landowner under these statutes differ from state to state. Some states include private swimming pools under these laws, and some don’t. If you’re a landowner, be sure you know what your state requires.
Many accidents in and around swimming pools and other swimming areas happen because the owner or possessor (tenant or management company) of the land has been careless and hasn’t taken enough care to protect the people swimming or otherwise using the area for recreation. The legal term for this carelessness is “negligence,” and this kind of case can be brought against the owner and or the possessor of the property. Accidents not caused by poor maintenance often involve a failure to properly supervise swimmers. In commercial facilities or places like public pools or camps where lifeguards are provided, the lifeguards must be on duty and attentive all the time that the pool is in use. Deaths and severe injuries have happened when lifeguards were lying down, reading, had their eyes closed, or were on a bathroom break.
Small children are the most frequent victims of drowning accidents, and the pool owner or operator, public or private, has a duty to protect them. This may involve: 1 Fencing to prevent small children from entering; 2 A gate with a latch too high for them to reach; 3 A cover when the pool isn’t in use; 4 Motion alarms to alert the owner that children are present. Some states, for example Arizona, California, and Oregon, require fencing around private pools to keep small children out. Be sure you know what your state requires.
Pool owners should have safety equipment like a shepherd’s hook and a ring buoy in good condition and quickly available. It would be a good idea to also have a first aid kit and a spinal board available, since diving accidents often cause spinal injuries.
Clear signs should be posted warning of all dangers, and it is a good idea to post and enforce prohibitions on diving, running, swimming while intoxicated, or swimming without supervision (for both adults and children). Pool owners should clearly inform visiting parents that children are not allowed to swim without adult supervision and that the parents are responsible for that supervision.
Owners of property with natural swimming areas like rivers, ponds, or lakes have a duty to remove hazards like broken glass or wood with old nails and to warn people about possible natural dangers like whirlpools, swift currents, or unclean water. State recreational use statutes may relieve them of some or all of this duty if they open the area to the public for free.
Different rules apply when you’re suing a local, state, or federal government entity as opposed to a private party. Governments generally have the same duty to maintain government-owned property in a safe condition or to avoid carelessness as private and commercial landowners. The difference is in the procedures for suing them and the amounts of money that can be collected for damages.
The federal government and all states have laws that set out how governments can be sued. The federal law is called the Federal Torts Claim Act (FTCA). These statutes often have special procedural requirements for lawsuits and may have different time deadlines than apply to other cases.
Under the FTCA the federal government is legally responsible for injuries in the same way private landowners would be in the location where the accident happened. So if you are injured on federal land because of government negligence, it would be the tort liability law of the state where the land is located that would govern your case (not federal law), but you would need to follow all the procedural requirements of the FTCA, such as when and where to file the lawsuit, and with what paperwork. Seek the advice of an attorney (see below) if you are suing a government entity.
State laws in this area differ widely. Some states apply recreation use statutes and hold that governments aren’t liable for injuries on land open to the public for free, while other states have decided that those laws don’t apply to governments. A few states have passed special laws that protect governments from liability on public lands. Some states also have limits on the amount of damages that can be collected for injuries on public land. You need to check both your state’s tort claims laws and its recreational use laws if you are injured on land owned by a state or a local government.
It’s good to keep in mind that it wouldn’t be possible to protect people from all the hazards in parks and natural areas or to warn them of every swimming hazard in rivers, lakes and reservoirs. Governments may only be liable for injuries if they operate an area for swimming and recreation. You should always be wary of swimming in unfamiliar waters and not assume that all hazards will be posted.
Swimming accidents can trigger a number of complex legal issues, such as product liability, negligence and premises liability. This coupled with the fact that injured parties only have a certain amount of time to sue (the state’s statute of limitations) or they lose their right to sue for their injuries, makes it important to seek the advice of an attorney if you believe you are entitled to compensation for medical bills, pain and suffering, and the like.