Who Is Liable for a Drowning or Pool Accident?

Property owners, pool operators, and supervising adults can be liable for drowning or pool accidents. Under premises liability laws, property owners are responsible for unsafe conditions on their property, including swimming pools without proper safety protections. Minimum safety precautions can include posted signage, pool covers, self-latching gates, perimeter fencing, and anti-entrapment drain covers.

Parents and adults responsible for supervising children in a pool area may also be liable for negligence, including failing to supervise or being intoxicated while watching young swimmers. For more information about liability for drowning and pool accidents, talk to a local personal injury attorney.

Can You Sue for Drowning Accidents?

You can file a wrongful death lawsuit when your loved one dies in a drowning accident caused by negligence. You can also file a personal injury lawsuit if you suffer serious injuries after a pool accident or near-drowning event. A personal injury lawsuit holds responsible parties liable for their negligence and compensates injury victims and their families.

Most drowning accident claims are based on negligence. To prove negligence, you must show the defendant owed the victim a duty of care, breached their duty of care by failing to act reasonably, and caused the victim’s injuries or death.

Other drowning accident claims are based on premises liability or product liability. Premises liability holds the property owner responsible for failing to keep the premises safe. Product liability claims hold the manufacturer responsible for putting a defective or dangerous product on the market that causes injury or death.

Who Is Responsible for Drowning and Pool Accidents?

Most swimming pool drowning accidents involve children. A child’s parent or other adult responsible for supervising children who swim may be liable if failing to monitor them amounts to negligence.

Lack of supervision can involve parents under the influence of alcohol, leaving children unsupervised, or other distractions. Even if it is an accident, supervising adults are generally liable for accidental drowning and pool accidents.

Pool accidents can result from negligence by the property owner or intentional acts. Non-drowning-related accidents can include slip and fall injuries, chemical burns from pool chemicals, and shallow water head injuries.

Pool Owners’ Duty of Care

Under premises liability laws, property owners owe visitors a duty of care to keep the property safe. The level of care residential pool owners must maintain can depend on state law and whether the person using the pool is a social visitor or someone invited to use the pool.

Generally, homeowners must keep their property reasonably safe. In most situations, homeowners must inspect their property for dangers, fix hazardous conditions, and warn visitors about safety risks. For pool owners, this means ensuring the water is safe for swimming, repairing trip hazards, and complying with local pool safety requirements.

Protective Safety Measures for Children

Pool owners owe a special duty of care to children who are not invited to use their pool. Courts do not treat child trespassers the same as adults in premises liability cases.

Swimming pools, playground equipment, and similar features may be attractive nuisances. Property owners must take additional safety measures if they have a swimming pool, even when children may come onto the property without an invitation.

Some cities and municipalities also have zoning laws that require minimum safety measures for swimming pools. Local laws may require minimum fencing enclosures, self-closing and self-latching gates, and approved pool covers. Pools without the required safety measures can be used as evidence of per se negligence in a personal injury claim.

Swimming pool drain covers can pose a risk to small children when clothing or hair gets caught in the drain, trapping children under the water. Since 2008, the Virginia Graeme Baker Pool and Safety Act requires all public pools to use anti-entrapment drain covers that meet established safety standards. Public pools with a single drain must also have secondary safety devices.

Public Pools and Beach Drownings

Cities, counties, and states generally maintain public pools and swimming areas. Local governments also owe the public a duty of care to ensure swimming pools are safe, which may include providing trained lifeguards to monitor swimmers and keep the areas safe.

Failing to provide enough lifeguards, enforce pool safety rules, or hire trained lifeguards can increase the risk of a drowning accident at a public swimming pool or beach. Injury victims and their families can file a claim against the government agency responsible for the public swimming pool.

If a pool lifeguard or employee is negligent because of inadequate supervision, the government is still liable for damages. Employers are vicariously liable for the negligence of their employees while acting in the course of their job duties. The pool operator may also be liable for negligent hiring or failing to train their employees properly.

Injury claims against government entities often have a shorter notice timeline than claims against private parties. States, cities, and other government agencies may require you to file a notice of claim within 90 days or less, depending on local laws. Contact a personal injury lawyer as soon as possible after a drowning accident to make sure you can file your claim in time.

Waterparks and Private Pool Drownings

Waterparks, hotel swimming pools and hot tubs, and pools at apartment complexes are private property. Some of these pools, including waterparks, have a lifeguard on duty. However, hotel pools and health club pools are often unmonitored, with warning signs that tell users to “swim at your own risk.”

You may have a negligence claim against the business or property owner for pool accidents, but many companies require guests to agree to liability waivers to use the pool. Courts generally enforce liability waivers against ordinary negligence that causes a pool accident. However, liability waivers may not protect the company against intentional harm or gross negligence.

Boating Accident Drownings

In a boating accident drowning, multiple parties can be liable for drowning accidents and injuries. The boat operator is generally responsible for boat safety and watching out for swimmers. The boat owner may be liable for failing to maintain the boat and provide required safety gear.

Other passengers may be liable for impairment or reckless behavior that is a substantial factor in causing the accident.

Defective Pool and Safety Equipment

Defective pool and swimming safety equipment can also contribute to drowning accidents. Under product liability laws, manufacturers and sellers are liable for defects that cause injury. These include design, manufacturing, and warning defects.

For example, a defective pool alarm could fail to notify parents when their child falls into the pool. A defective suction cover could hold a child underwater, causing them to drown. When these defective products cause a drowning or pool accident, victims and their families can hold the manufacturer liable.

Common Causes of Drowning Accidents

According to the Centers for Disease Control and Prevention (CDC), over 4,500 people died from drowning each year from 2020 to 2022. Drowning is the number one cause of death for children aged one to four in the United States. Drowning deaths can occur in the home, lakes or ponds, public swimming pools, and hot tubs.

Swimming lessons for children can reduce the risk of drowning death, but even strong swimmers can drown. Other ways to reduce drowning risk include learning basic water safety skills, using fences and self-latching gates around pools, and wearing a life jacket.

Many adult swimming pool accidents and unintentional drownings involve swimmers under the influence of alcohol. Avoiding alcohol or other impairing substances can reduce the risk of swimming and boating accidents.

Defenses To Drowning Accident Claims

Pool owners are not liable for all accidental drownings that take place on their property. Property owners have many legal defenses against drowning injury claims.

In a personal injury lawsuit, the defendant can assert these legal defenses to avoid liability for pool accidents. Talk to your drowning accident lawyer about potential legal defenses.

Assumption of the Risk

Swimming and water activities involve inherent risks. When adults enter the water at a pool, river, or beach, they generally accept the inherent risks of swimming. For an assumption of risk defense, the defendant must show the victim knew and understood the risks and voluntarily chose to enter the water.

Contributory Negligence

When the injury victim also contributes to the accident, their contributory negligence can reduce their chance of recovering damages. When multiple causes contribute to an accident, the court or jury can assign percentages of fault that total 100%. The victim’s percentage of fault can determine whether they can recover compensation and the amount of the award.

Contributory negligence in pool accidents depends on state law, with some states denying any compensation if the victim was at all responsible. Most states reduce available compensation based on the victim’s percentage of fault.

For example, a community pool has a sign that says no running, and the lifeguard warned the swimmer to stop running by the pool. The swimmer continued to run around the pool and tripped on a broken drain, falling and suffering a head injury. The swimmer suffered $10,000 in damages. The jury found the community pool 60% at fault and the swimmer 40% at fault.

In a pure contributory negligence state, the swimmer recovers nothing because they are partially at fault. In a comparative negligence state, the swimmer can recover $6,000 in damages from the community pool. However, in some comparative negligence states, the swimmer cannot recover damages if they are 50% or 51% or more at fault.

Lower Duty of Care To Trespassers

In many states, property owners owe trespassers a lower duty of care. Property owners do not need to warn trespassers about dangers, including risks associated with swimming pools.

However, special precautions apply when trespassers are children attracted to the swimming pool. Under the attractive nuisance doctrine, pool owners must take precautions to prevent children from drowning or being injured, even if they are not invited.

File a Lawsuit To Prevent Further Drowning Deaths

A drowning-related wrongful death lawsuit cannot bring back your child, but it can hold the negligent parties responsible for their actions and help prevent other children from suffering drowning deaths. Compensation in a wrongful death claim can also help provide for you and your family after the tragic event.

Compensation in a drowning accident claim can depend on the age of the victim, extent of damages, and other factors. Economic and non-economic damages in a personal injury claim can include medical expenses, lost wages, and pain and suffering. In a wrongful death lawsuit, damages can include funeral expenses, loss of support, and loss of companionship.

An experienced personal injury lawyer can explain your legal options and help you through the process. Contact a personal injury lawyer for legal advice about drowning and swimming pool accident claims.