Liability in a Pool Accident Explained

Swimming pools provide a great way to beat the Southern California heat. Most of the time, you can swim and enjoy yourself without incident. Unfortunately, however, nine people drown in the United States every day! In fact, drowning is the second-leading cause of accidental injury-related death among children aged 1-14. For each death, there are up to four non-fatal incidents that are serious enough that the victim requires hospitalization.

When a day at the pool results in accident, injury or death, you may wonder who is at fault and whether you may be able to receive compensation to help pay your medical bills and other expenses. Each case is different, and a Southern California injury attorney can advise you on the merits of taking legal action if you or a loved one has been injured in a swimming pool accident.

Who is Responsible?

Liability for swimming pool accidents typically depends on the premises liability law of your state. In California, state law requires property owners to take reasonable care toward any person entering their properties. California premises liability lawsuits typically stem from a property owner who failed to ensure guest safety, such as failing to install fencing or post warning signs around the pool. Property owners also must ensure pools are properly supervised and receive routine, required maintenance.

In some cases, you may be responsible for your own injuries. If, for example, you were engaging in horseplay and suffered an injury as a result, the fault may be your own. However, the owner or operator of the pool may be liable if you became injured because the pool area was improperly maintained. Sometimes liability is shared, and you as well as another party are legally responsible for your injuries.

Premises Liability Rules Usually Apply

Since a pool is considered part of the property it is located on, premises liability rules will typically apply in a pool injury lawsuit. “Premises liability” is the short-hand term for the set of laws used to determine who (if anyone) is liable when a particular condition or use of a building, land or other premises causes an injury.

If premises liability is the rule that will apply, the law will next determine what type of “entrant” used the facility. Invitees are those that paid to use the pool, which is typically the case of a patron that visited a public pool. Licensees are usually referred to as guests that were invited to use a private pool. The third category of entrants is trespassers and they are not typically covered under premises liability laws. The possible exception might be a young child who got into the pool because there were not sufficient barriers to keep him safely out, such as fences or alarms.

Patrons of pools that are open to the public, whether for a fee or free of charge, are usually classified as “invitees.” Pool owners are under a duty to do a reasonable job maintaining and repairing the pool so that invitees are not injured. Social guests using a pool on private property are usually classified as “licensees.” Pool owners are under a duty to warn licensees of dangers that are not obvious to the average person. A pool owner does not owe a trespasser a duty of care, other than to refrain from causing the trespasser intentional harm. A major exception to this rule is when the trespasser is a child.

When the accident occurs in a public pool or a pool owned by a private club, product liability and negligence may also be factors in a pool accident. Product liability may be cited if there was an actual problem with the pool or pool equipment that contributed to the accident. Negligence refers to an action that may have contributed to the accident. This could apply to someone that built or serviced the pool or employees of the pool that are responsible for ensuring the safety of patrons.

Public Pool Liability

Generally, the owner and operator of a public pool are responsible for maintaining safe premises for guests who have permission to be on the property. A public pool owner can be held liable for failing to provide emergency safety equipment at a public pool if an invitee is injured. A public pool owner may also be held liable for broken equipment at the pool or a lack of adequate supervision or lifeguards. If a particular type of equipment or supervision is required by law, and the lack of them causes an accident, an inference of negligence may be created in certain states that follow the doctrine of negligence per se.

In addition to keeping a public pool safe and complying with state and federal regulations, a public pool owner may need to warn invitees of any hidden dangers. For example, if it is not obvious that a pool is too shallow for diving, an owner may be liable for failing to warn when an invitee is injured.

Residential Pool Liability

Homeowners can be held responsible for injuries that take place in and around their pools. They are responsible for creating a safe environment for their guests as well as taking steps to keep people from trespassing on their property and becoming injured in their pool. Since a pool can create what is legally known as an “attractive nuisance,” a homeowner should take steps to secure their pool behind a four-sided fence and have alarms and other safety measures in place. This can prevent children from coming into the pool area without permission and suffering an injury.

In states that follow the attractive nuisance doctrine, both public pool owners and private pool owners must keep a pool safe from being accessed by young children who are not supervised, since they do not understand the danger of drowning. The pool owner will need to erect a fence or other barrier to keep young children from falling into it.

Most swimming pool-related premises liability claims involve inadequate pool maintenance or supervision. The California Pool Safety Act requires pool owners to take reasonable safety precautions for guests invited to the property. Most wrongful death and personal injury victims file lawsuits alleging the property owner failed to ensure safety for guests.

A property owner can be held liable for:

•  Lack of fencing
• Non-installation of warning signs.
• Negligent supervision
• Lack of maintenance

Swimming Pool Injuries

Approximately 10 people die from unintentional drowning every day in the US according to the CDC. Roughly 20% of these people are children under the age of 14.

Of course, swimming accidents don’t always end in death. For every person who dies from drowning, 5 people receive emergency department care for nonfatal submersion injuries. These injuries range from minor to severe and include:

• Brain damage. When a person is drowning, water enters their lungs and deprives the brain of oxygen. The part of the brain that controls thinking and memory is the first area of the brain to be harmed as a result of oxygen deprivation. As a result, victims of near-drowning accidents often suffer debilitating memory loss, seizures, learning disabilities, paralysis, and may even slip into a permanent vegetative state. In most cases, brain damage begins to occur after 5 minutes of oxygen deprivation.
• Recreational Water Illnesses (RWIs). RWIs are caused by germs spread by swallowing, breathing in mists or aerosols from, or having contact with contaminated recreational water. Recreational water includes water in swimming pools, hot tubs, water parks, water play areas, interactive fountains, lakes, rivers, or oceans. The most commonly reported RWI is diarrhea.
• Aspiration pneumonia. Aspiration pneumonia is a lung infection that develops after a person inhales water into their lungs.
• Acute respiratory distress syndrome (ARDS). ARDS occurs when fluid builds up in the tiny, elastic air sacs (alveoli) in your lungs. The fluid keeps your lungs from filling with enough air, which means less oxygen reaches your bloodstream. This deprives your organs of the oxygen they need to function.
• Hypothermia. Hypothermia occurs when your body loses heat faster than it can produce heat. Believe it or not, a person can get hypothermia even when it’s hot outside and the water is relatively warm. To avoid hypothermia, keep an eye out for the signs (shivering, altered judgment, blueness of the fingers, toes, or lips) and get out of the water when they appear.

What Evidence Will My Swimming Pool Accident Lawyer Need to Prove Liability?

The answer depends on the cause of your injury and the circumstances of your accident. As a general rule, the more evidence your attorney has to prove liability and the stronger it is, the less likely the opposing party or insurance company will be to dispute your claim.

This is why it’s so important to hire a lawyer who has the right experience to handle your case. An attorney who is familiar with swimming pool accident claims will know the types of evidence to gather and how to approach the investigation.

Depending on the facts surrounding your case, the following evidence may help your lawyer prove liability:

• Photos of the hazard that caused your injuries
• The police and/or incident report
• Eyewitness testimony
• Swimming pool maintenance records
• Surveillance footage of the incident
• Testimony from experts regarding the cause of your accident. For example, if you were injured due to defective swimming pool equipment, your lawyer may bring in an expert who specializes in the design and manufacturing of that equipment.

At the Law Offices of Brent A. Duque, we maintain a staff of a highly professional, knowledgeable, aggressive and successful Premises Liability Attorneys who represent injured people through our offices all across Southern California. Contact us today at 1-877-241-9554 to learn more about your legal options. A free consultation is just a phone call away.