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My 14 year-old daughter was doing flips into a shallow pool, landed on her head and is now quadriplegic. Will the fact that she knew she should not have been doing flips affect our ability to recover money damages?
This is a complicated case and will be subject to debate with the insurance company.
Even if the pool did have "No Diving" signs, or other informational warnings concerning the depth or dangers associated with diving into shallow water, your daughter’s age, her familiarity with the pool and proficiency in the water make it unlikely that your daughter would have heeded them. Even a 14-year-old knows not to dive into a shallow pool. In fact, it is likely that the court will rule against you.
The next issue would be that she wasn’t actually diving and it would have been unreasonable to expect the owner to post a "no flipping" warning. It is another story, if flipping into this shallow pool was encouraged by the pool owner or the person supervising your child. Was your daughter at camp or under the supervision of some adult who should have prohibited her from what proved to be an extremely dangerous activity? If so, you may be able sue the person who was supposed to be supervising your child.
If you can prove that another party was liable for your daughter’s injuries, the damage amount will most likely be reduced because of her own negligence - doing flips into the shallow water. In most circumstances, state tort law requires children to act with the same amount of care as children of similar age, judgment and experience. Consequently, when determining whether your daughter was negligent, a court would look at your child's age, intelligence and experiences. The court would also consider your child's capacity to understand and avoid the danger to which she was exposed by doing flips into a shallow pool. You have already stated that your daughter knew she wasn’t supposed to be doing the flips. It is likely her negligence in flipping in the pool will diminish her possible recovery.
The amount of the other party’s responsibility would be compared with your daughter’s. And it is this percentage that determines the percentage of the dollar value that will be paid. This rule is called "comparative negligence” or “comparative fault.” For example, if your daughter were 25% at fault and the other party was 75% at fault, the other party would pay (through their insurance company) 75% of the fair compensation for your daughter’s injuries.
In a few states, you cannot recover at all if your own carelessness substantially contributed to the accident ("contributory negligence") in any way, however small.
If you haven't already done so, see an experienced personal injury lawyer right away. |
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