Who is Responsible for a Swimming Pool Drowning?
The question of liability in a swimming pool drowning depends upon the nature of the accident itself.
There are three legal theories that could be involved: 1) premises liability, 2) negligence, and 3) products liability.
1. Premises Liability
A claim that says a property owner is liable for injuries caused by a dangerous or hazardous condition on the property that the owner knew about or should have known about. In the case of a public pool drowning, pool owners have a responsibility to take reasonable precautions to make safety a priority for their users, or anyone else on the property.
In California law, the landowner must take steps to protect and prevent harm to anyone entering the property (even a trespasser).
The owner is negligent if he or she fails to take reasonable precautions to prevent a drowning.
The liability applies to:
- Owners of residential and private pools.
- Owners of property with private or commercial pools used for the benefit of guests, members, or tenants (such as motels, campgrounds, health clubs, or apartment complexes).
- Owners of government property (discussed below), such as municipal swimming pools open to the community or school swimming pools.
- Possessors or operators of the property. For example, someone who rents the property could also be liable for damages in a drowning where he or she failed to take reasonable precautions to protect guests from serious injury.
The negligent party can be at fault for the inadequacies in pool maintenance and the surrounding pool area by their owners, or the supervision of their pool users. Some of these pool safety inadequacies in a drowning case could include the following:
- Lack of fencing.According to the CPSC, in-ground pools without complete fencing are 60 percent more likely to involve a drowning than fenced pools. A pool owner may be liable after a drowning if it can be shown that a reasonably prudent pool owner would have installed pool safety features such as fencing and locked gates.
- Warning signs.Property owners may also be liable for a drowning if they failed to post warning signs. An owner must warn swimmers of possible dangers, such as posting signs indicating the depth of the water or a “swim at your own risk” sign in the absence of a lifeguard. However, if a drowning occurs and safety signs are hidden or unreadable, pool owners may be liable. Some dangers are “open and obvious” and a court may not find liability because a reasonable person would have common knowledge of the dangers of swimming without a lifeguard on duty or that shallow depths are not for diving.
- Negligent supervision.The owner of a private residence can be liable for a drowning for failing to supervise guests, especially if they represented that they would be watching a child. A private commercial landowner that has a pool open to the public as part of their business has a greater degree of duty to protect swimmers and may face liability if no lifeguard is provided, or if warning signs are lacking, despite some dangers being open and obvious. If a lifeguard is negligent in his or her supervision, the employer and/or owner of the property can be held liable for drownings.
- Lack of maintenance.Property owners can be liable if they failed to maintain the pool or safety equipment in a reasonably safe condition. For example, a pool that is only partially filled may give rise to liability if someone strikes their head on the bottom and is injured or drowns. If the water becomes murky and the bottom slippery from debris, a property owner could be liable for a drowning if someone under the water could not be seen, or if a victim could not get out of a pool due to slippery sides and bottom.
2. Negligence
Under the negligence basis for a drowning claim, a person is liable if they were negligent in causing the accident. Negligence is the failure to do what a normal person would do under the circ*mstances. A property owner’s negligence in failing to make the property safe establishes his or her liability. Other parties may also be liable if their negligence leads to a drowning. For example, if pool equipment was improperly installed, resulting in a drowning, there might be a cause of action in negligence against the installers. An employer might be liable if unqualified or improperly trained lifeguards were hired, or if the lifeguard’s supervision leads to a drowning.
Another form of negligence is called negligence per se, or strict liability. Under this theory of recovery, a party is liable if they have violated a law. California and many of its cities and towns have passed laws or ordinances that impose restrictions and requirements on the construction and maintenance of residential swimming pools in order to prevent accidents. These laws may require special pool covers, locked gates, and fencing that completely surrounds a pool. Failure to follow such ordinances will result in the property owner’s liability in the event of a death.
3. Products Liability
Products liability is a strict liability claim and is not dependent upon someone’s negligence. Under this basis for recovery, a manufacturer or seller of a defective pool or related equipment is responsible for releasing a defective product.
When a faulty pool or equipment is the cause of a drowning, many people could be responsible:
- The pool manufacturer (or the manufacturer of a component part),
- The wholesaler,
- The retail store that sold the pool to the customer, and
- The assemblers or installers
Additionally, there are three types of defects:
- Design defects that are present in the design of the product before it is made,
- Manufacturing defects that occur in the manufacturing process, and
- Marketing defects, such as inadequate safety warnings.
As an example, suppose a child comes in contact with an underwater pool drain and the suction from the pump is so strong that the child either cannot pull free or is entrapped when a foot or hand becomes stuck in the drain grate. If the child is injured or drowns, a product liability action could be filed against the pool manufacturer, who may be liable for a design defect. Sometimes, the design of the entire pool itself may be faulty. For example, a dangerous condition might exist where the shallow and deep areas are not clearly marked or if it is difficult to see where the pool is deep enough for diving.
Products used in or around the pool can also be defective and extremely dangerous. Water slides could have weak spots from a manufacturing defect that results in falls. Flotation devices for children could be defective because of a lack of adequate instructions for safe use, clearly indicating a marketing defect.
