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What Laws Apply to Drowning Accident Cases?

More than 3,500 people unintentionally drown each year in non-boating-related incidents, and 20 percent of drowning victims are under the age of 15. That translates to 10 drowning fatalities every day, two of whom are children — a rate which makes drowning the second leading cause of death among those under 15. In addition, the Centers for Disease Control and Prevention (CDC) reports that for each child who dies from drowning, five children receive treatment in emergency rooms for non-fatal, near-drowning injuries.

More than half of drowning victims who survive need more care and are admitted to a hospital. The injuries sustained in near-drowning incidents can cause serious and significant health complications that have lifelong consequences. Non-fatal drowning accidents often cause extended loss of oxygen flow to the brain, which in turn can cause long-term mental disabilities, loss of basic cognitive function, or impaired memory and reasoning. Physical injuries like broken bones, severed spinal cord, or traumatic brain injuries (TBI) can also result from pool-related incidents.

By now, you should be getting the picture: drowning and near-drowning accidents at pools lead to severe physical, mental, emotional, and financial strains on victims and their families. The following is an explanation of the laws that exist to protect victims of drowning or near-drowning.

Negligence and Liability in Drowning Accidents

Negligence is frequently cited as a cause of drowning incidents. Here are a few examples of the types of negligent behavior that can lead to drowning accidents:

  • Failure to sufficiently secure pools with a locking gate or other barrier
  • Failure to properly manage pools and ensure safe swimming conditions by removing hazards, installing drain covers, and maintaining appropriate water and chemical levels
  • Failure to post warnings about any safety hazards that could lead to drowning or injury
  • Failure to properly train staff to ensure the pool and surrounding area are safe

The two most prominent categories of law that apply in a drowning accident case are product liability and premises liability.

Product Liability as a Cause of Drowning

When it comes to pools, product liability issues may arise due to problems with the pool’s mechanics, structure, or operation. Designers, manufacturers, retailers, and installers all may be potentially held liable when a defective pool causes injury, depending on how the defect originated. Some product defect and liability issues that may play a role in drowning cases include:

  • Pool Drains and Pumps
    Defective pool drains and pumps can cause suction entrapment, where a pool occupant becomes stuck after their hair or suit is sucked into the drain because of the strength of the suction. When this happens, swimmers are often stuck under water. A 2007 federal law, The Virginia Graeme Baker Pool and Spa Safety Act, requires that pool owners and manufacturers maintain certain safety standards when it comes to pool drains. This law was enacted to protect swimmers from defective and dangerous pool drains.
  • Pool Filters
    Defective pool filters can sometimes malfunction and explode due to compressed air in the filter. Contents of the filter can launch several feet in the pool, shooting sharp filter components toward swimmers.
  • Pool Accessories
    Defective pool accessories, like diving boards, slides, or ladders, can often be manufactured or installed incorrectly or installed in an inappropriate place. For example, a diving board installed in a shallow area of the pool or a ladder that rusts and breaks can lead to serious injuries or drowning.
  • Pool Gates
    Latching, secure pool gates are a necessity to protect children from accessing pools. Pool gates can fail at two distinct points: the overall integrity of the gate structure and the latching mechanism. If the gate’s integrity is compromised, it might be easy for a child to break the gate or crawl between posts. If the latching mechanism isn’t secure or working properly, children will be able to access the pool without supervision.
  • Safety Gear
    Pool safety gear, such as life jackets, ring buoys, and alarms, are necessary in case of emergencies. A defective alarm that doesn’t sound when something or someone falls in the pool unexpectedly or a ring buoy that doesn’t properly float when someone needs support in the pool can result in catastrophic consequences.

Some aspects of product liability—like improper placement of pool accessories, knowingly keeping defective pool components, or not following the Virginia Graeme Baker Pool and Spa Safety Act—also relate closely to premises liability.

Premises Liability and Drowning

Because the pool is part of a property, the property owner has a duty to ensure that the pool doesn’t pose an unreasonable hazard to others. The property owner must use reasonable care and take seriously his or her responsibility to post proper signage, restrict access to the pool, and provide adequate emergency safety equipment.

When a property owner intentionally neglects to fix safety issues or property damage, post proper signage, hire trained lifeguards (if required by law), or when they purposefully violate municipal ordinances or state laws, they are making themselves and their property vulnerable to a premises liability lawsuit in the event of an injury or drowning accident.

Swimmers bear some personal responsibility to watch out for their own safety by practicing a reasonable amount of care in a pool area; however, this degree of personal responsibility does not extend to children. Children cannot be expected to mind their own safety in the way that adults can, and they are protected by the attractive nuisance doctrine, which states that a property owner is liable for injuries that result if they fail to adequately safeguard their property from children. For example, a pool without barriers is very appealing to a child, especially if it is easily accessible. If a child were to gain access to such a pool and sustain a submersion injury or drown, the property owner would be liable for the harm that results.

If your child or loved one has drowned or suffered other injuries due to someone else’s negligence, you may be entitled to compensation for your hardships stemming from the accident, including:

  • Current, ongoing, and future medical expenses for the injury or any resulting disability
  • Current and future lost wages or lack of income/earning potential
  • Emotional pain and suffering

If the unthinkable happens and your loved one suffers from a drowning or near-drowning accident, it is important to get all the medical care and emotional support you need. Be sure to keep track of all documents relating to the accident (bills, receipts, insurance files, paystubs, etc.), refrain from posting about the incident on social media, and contact an experienced personal injury attorney who can help you navigate this difficult time.

Contact Perry Charnoff PLLC for Drowning Accident Representation in Virginia, Maryland, and Washington D.C.

If you or a loved one has been affected by a drowning or near-drowning submersion injury, contact the attorneys at Perry Charnoff PLLC today. We use trial experience and network of medical experts to aggressively fight for justice on our clients’ behalf. Call us today at (703) 291-6650 or fill out our online contact form, and we’ll schedule a free initial consultation to evaluate your case and discuss your legal options.

References

Unintentional drowning: Get the facts. (2016, April 28). Centers for Disease Control and Prevention. Retrieved from https://www.cdc.gov/homeandrecreationalsafety/water-safety/waterinjuries-factsheet.html

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.