What’s the problem?
Each year in the U.S., more than 3,000 people drown and many more suffer serious, irreversible injuries in near-drowning incidents, according to the U.S. Centers for Disease Control and Prevention (CDC). In fact, drowning is the leading cause of all accidental deaths among small children (1 to 4 years of age) and the 2nd leading cause among all children from 1 to 14 years of age, following only motor vehicle accidents.
Drowning can occur in a number of places, including at private and public swimming pools, open recreational waterways such as lakes and ponds, spas, hot tubs, and even in bathtubs. In non-fatal cases, with brain damage generally resulting after 4 minutes of submersion, an estimated 20% of victims suffer severe, permanent neurological disability. Negligence plays a part in many drownings and near-drowning cases, whether the cause is lack of supervision or a problem with the premises.
According to the CDC, for every fatal drowning accident involving a child 14 years or younger, 3 children require emergency room treatment for submersion injuries and 40% of those require hospitalization. Non-fatal incidents can cause brain damage that results in long-term disability ranging from memory problems to the victim being left in a vegetative state.
Pool Drownings Caused by Poor Maintenance
Unfortunately, injuries in and around swimming pools often happen because the owner or operator of the property hasn’t maintained the equipment in a reasonably safe condition.
In legal terms, liability for pool drownings caused by poor maintenance is called premises liability. Both the owner & operator of the land can be named as defendants in this type 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.
Examples of situations that could result in liability because of poor maintenance include (but are not limited to):
- 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 cut or fall
- An improperly maintained fence or pool cover that allows a young child to get into the pool and drown
- Contamination in a pool that hasn’t been treated with chemicals that causes a serious illness
Many states have recreational use laws that exempt landowners for accidental injuries if they open their land to the public for no charge. The duties of a landowner in these situations differs from state to state, so if you’re a landowner, be sure you know what your state requires.
Pool Drownings Resulting From Improper Supervision
Those whose job it is to supervise, protect, and help swimmers during moments of trouble must always focus on their tasks at hand and avoid any potential distractions. Unfortunately, it is far too common for these people to fail in their duties and allow accidents to happen to innocent people.
Regardless of whether the accident occurs in a private pool or a public beach, there always needs to be a responsible person on the lookout for potential accidents or dangers. If not, there could be legal repercussions against those who failed to act for the safety of the general public.
If careless or improper supervision led you or someone you know to suffer a water-related accident, you may have the right to pursue legal action. Do not hesitate to pursue your case, for the law limits the amount of time you have to claim damages. Contact a team of experienced and dedicated lawyers who will fight for you.
Pool Drownings on Government Land
Governments generally have the same duty to maintain property in a safe condition and to avoid carelessness as private and commercial landowners. The difference, however, lies 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 in the Federal Torts Claims Act (FTCA). 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, but you would still need to follow all the procedural requirements of the FTCA.
Unfortunately, it isn’t 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. For your safety, always be wary of swimming in unfamiliar waters and never assume that all hazards will be posted.
Pool Drownings Caused by Carelessness
The legal term for carelessness is “negligence,” and this kind of case can be brought against the owner and / or the possessor of the property. These types of accidents often involve a failure to properly supervise swimmers. In public pools or camps where lifeguards are provided, lifeguards must be on duty and attentive at all times when the pool is being used. Deaths and severe injuries have occurred when lifeguards are lying down, reading, had their eyes closed, or were on a bathroom break.
Unfortunately, small children are the most frequent victims of drowning accidents, and the pool owner / operator has a duty to protect them. This may involve:
- Fencing to prevent small children from entering the pool area
- A gate with a latch too high for them to reach
- A cover when the pool isn’t in use
- Motion alarms to alert the owner that children are present
- Safety equipment like a shepherd’s hook and a ring buoy in good condition and quickly available
- First aid kit and a spinal board available, since diving accidents often cause spinal injuries
- Clear signs should be posted warning of all dangers (diving, running, swimming while intoxicated / without supervision)
CPSC Reports on In-Home Drownings & Non-Fatal Submersions
Between 2006 and 2010, the U.S. Consumer Products Safety Commission (CPSC) documented 684 drowning and submersion incidents involving children under the age of 5. Of these:
- 434 were fatal drownings (an average of 87 a year);
- 233 were injured;
- 17 incidents occurred with no known injuries.
According to the CPSC, 82% of the victims were under the age of 2, and 81% of the incidents occurred in bathtubs or bath-related products. After swimming pools, bathtubs were found to be the 2nd leading location were children accidentally drowned. Additionally, the commission found that 92% of the fatalities occurred in residential settings.
Of the reported drowning deaths:
- 28% involved a situation where the child was momentarily unsupervised;
- 23% occurred when the victim was being watched by another child, who was usually older;
- 10% occurred in a product outside the home, such as a bucket or decorative yard equipment;
- 3% occurred inside the home in a bucket or trash container that was being used for cleaning.
According to the CPSC, the following tips can make all the difference in avoiding accidental drownings:
- Never leave young children alone near any water or tub or basin with fluid. Young children can drown in even small amounts of liquid.
- Always keep a young child within arm’s reach in a bathtub. If you must leave, take the child with you.
- Don’t leave a baby or young child in a bathtub under the care of another child.
- Never leave a bucket containing even a small amount of liquid unattended. Toddlers are top heavy and they can fall headfirst into buckets and drown. After using a bucket, always empty and store it where young children cannot reach it. Don’t leave buckets outside where they can collect rainwater.
- Consider placing locks on toilet seat covers in case a young child wanders into the bathroom.
- Learn CPR (cardiopulmonary resuscitation). It can be a lifesaver when seconds count.
CPSC Reports Nearly 140 Children Drowned in Swimming Pools, Spas During Summer 2012 Season
The CPSC has issued a press release stating that at least 137 children under the age of 15 drowned in a pool or spa during the summer 2012 season, which began on Memorial Day (May 28) and ended on Labor Day (Sept. 3). In addition to the fatalities, another 168 children required emergency medical treatment for accidents that occurred in pools and spas during that period. Nationwide, drowning is the leading cause of unintentional death among children 1 to 4 years of age.
Of the 137 swimming pool drownings of the summer 2012 season, 54 occurred soon after the children left the supervision of an adult who was in their immediate vicinity, and 31 drowned despite being in the presence of others around the pool. Additionally, the year’s statistics appear to be consistent with CPSC’s annual reports in showing that young children and toddlers are particularly vulnerable to drowning. At least 100 of the 137 fatalities occurred in children under the age of 5.
Each May, CPSC releases data on drownings and other non-fatal pool-related injuries for children under the age of 15. Between 2007 and 2009, an average of 243 children drowned in pools or spas during the summer months, which accounts for approximately 63% of the average annual drowning figures for these years. About 5,200 pool or spa-related emergency department-treated injuries occur on average each year for children younger than 15, according to the submersion report.
CPSC recommends the following simple steps to ensure that children and adults stay safe around pools and spas:
- Stay close, be alert and watch children in and around the pool. Never leave children unattended in a pool or spa; always watch children closely around all bodies of water; teach children basic water safety tips; and keep children away from pool drains, pipes and other openings.
- Learn and practice water safety skills. Every family member should know how to swim. Learn how to perform CPR on both children and adults.
- Have appropriate equipment for your pool or spa. This includes pool fencing, a lockable safety cover for spas, proper drain covers to avoid entrapments, and lifesaving equipment such as life rings and a reaching pole.
CPSC Pool Safely Campaign Partners With Industry on Education and Outreach
The CPSC has announced a strategic partnership with the Association of Pool and Spa Professionals (APSP) for the agency’s Pool Safely program: Simple Steps Save Lives public safety campaign.
As the newest Campaign Safety Partner, APSP will play an important role in helping to reduce the number of drowning, near-drowning, and entrapment incidents each year by working with its members and customers to make compliance with the Virginia Graeme Baker Pool & Spa Safety Act and education priorities.
Starting at the International Pool, Spa, & Patio Expo, APSP will provide Pool Safely materials at industry events, in publications, on industry videos, on its website, and through social media channels, such as Facebook and Twitter. In addition, as APSP develops new safety videos for its industry members, it will incorporate Pool Safely messaging and materials into the production of the videos.
Pool Safety Public Service Announcements from CPSC
CPSC debuted a series of Public Service Announcements (PSAs) about their ‘Pool Safely’ campaign illustrating how simple steps saves lives at pools and spas. Partnering with the American Red Cross and the YMCA, the CPSC produced broadcast, print and radio PSAs that are being distributed to media outlets across the country.
The PSAs introduce 4 families and stories about the simple steps that save lives: door alarms, knowledge of CPR, fencing around pools, and spas and safety drain covers in spas. The characters in the broadcast PSA are also featured in the print versions. The radio PSAs promote the importance of swimming lessons as a simple step that saves lives.
The broadcast PSAs will be rolled out through the summer in markets across the country. They will be distributed to more than 1,200 local television and 500 cable stations, as well as to more than 500 radio stations. The PSAs will also be available on the Pool Safely YouTube channel. Campaign partners and supporters will feature them on their websites and promote them through their networks.
California Swimming Pool Safety Act of 1996
Under the California Swimming Pool Act of 1996, swimming pools must be equipped with at least 1 of the following safety features:
- The pool must be equipped with an approved safety pool cover
- The residence shall be equipped with exit alarms on those doors providing access to the pool
- All doors providing direct access from the home to the pool shall be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor
- The pool shall be isolated from access to a home by an enclosure that meets the requirements of section 115923 (reprinted below)
- Other means of protection, if the degree of protection afforded is equal to or greater than that afforded by any of the devices set forth in the California Swimming Pool Safety Act, as determined by the building official of the jurisdiction issuing the application building permit.
Pool enclosures that meet the California swimming pool safety act under section 115923 must have all of the following characteristics:
- Any access gates through the enclosure must open away from the swimming pool, and must be self-closing with a self-latching device placed no lower than 60 inches above the ground
- The enclosure must be a minimum height of 60 inches
- The enclosure must have a maximum vertical clearance from the ground to the bottom of the enclosure of 2 inches
- Gaps or voids, if any, in the enclosure must not allow passage of a sphere equal to or greater than 4 inches in diameter
- The enclosure must have an outside surface free of protrusions, cavities, or other physical characteristics that would serve as handholds or footholds that could enable a child below the age of 5 years to climb over
Pool Accidents Caused by Faulty Products
In legal terms, a lawsuit based on pool accidents caused by faulty products 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
- A sump pump that shorts and causes electrocution
Sometimes the design of the pool can even be 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 and 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 adult supervision.
Defective Swimming Pool Accidents
Unfortunately, drowning is the second leading cause of death among children under 14 years of age, and is a real danger for young children that live near unsecured pools. Defective swimming pool drains, unfenced swimming pools, and inadequately monitored swimming rides can be extremely dangerous and cause serious injuries and even death.
Consumer safety groups and organizations including the CPSC have become aware of the many dangers posed by defectively designed and roped pools, and have issued several safety warnings about the importance of pool safety.
Additionally, there have been an increasing number of stories in the news where defective swimming pool drains have caused serious injuries to small children. These defective pool and spa drain accidents have caused several children to have been seriously injured or killed due to having body parts entrapped by the drain of a swimming pool, wading pool, or spa. Under normal working conditions, pipes leading from a pool’s drain, or into the pool’s pumps, draw water from the pool to create suction. If something blocks the normal function of a pool drain, the amount of suction can increase as the pump draws water past the obstruction. This increased suction can entrap a small child or person, causing the individual to be held underwater, which often leads to brain damage or hypoxia. In extreme situations, defective drains in wading pools have caused a child sitting on the drain outlet to be disemboweled by extreme suction.
Summer Pool Safety: Facts & Myths
The following are some of the biggest misconceptions about popular summertime pool activities:
Myth: So long as adults are around, pool parties are safe.
Fact: Many drownings occur when adults are close by. The problem is too much commotion. There should always be a designated adult watching the water because that is where the danger is.
Myth: Floaties keep little ones safe in the water.
Fact: Floaties are designed for fun, not safety. They give a false sense of security, can deflate, and slip off.
Myth: Children only need to drink when they are thirsty.
Fact: By the time a child is thirsty, he or she is already dehydrated. If a child weighs 100 pounds or less, he or she should be drinking 5 or 6 ounces of water or sports drink every 15 minutes.
Myth: The kids will be fine in the pool for the short time it takes to answer the phone or get a cold drink.
Fact: It takes less than a minute for a child to go under water. In two to three minutes, a child can lose consciousness. In four or five, a child can suffer irreversible brain damage.
What Should I Do After a Swimming Pool Drowning Accident?
If you or someone you love has been unfortunate enough to be involved in a swimming pool accident or drowning, you should:
Preserve evidence – Whenever possible, write down the names, addresses, and phone numbers of all potential witnesses to the accident. Take photographs of the accident scene including anything that may have contributed to the event (surrounding conditions, defective equipment, fences & gates, as well as the specific location the accident took place).
Document the events and your injuries – Write down all events surrounding the accident. Obtain police reports concerning the incident and records from the hospital emergency room. Keep notes of all conversation with police, witnesses, emergency medical personnel, and hospital doctors.
Contact an experienced swimming pool drowning lawyer – In the aftermath of such a tragic event, hiring a lawyer may not seem like a top priority. However, complex legal and safety issues may be involved and it is essential to consult an attorney as soon as possible after the accident. In the event of a swimming pool drowning, it is difficult for a grieving family to think about legal issues. An experienced swimming pool drowning lawyer will be able to protect your rights during such a traumatic and emotional time.
Do I have a Swimming Pool Drowning Accident Lawsuit?
The Personal Injury & Premise Liability Litigation Group at our law firm is an experienced team of trial lawyers that focus exclusively on the representation of plaintiffs in swimming pool drowning accident lawsuits. We are handling individual litigation nationwide and currently accepting new cases in all 50 states.