Every day approximately two children under the age of 14 drown and drowning ranks as the fifth leading cause of unintentional injury or death in the United States. Just this year, an 8-year-old boy drowned in a community pool located in San Diego’s Mission Valley neighborhood.
In another case, a 2-year-old boy was transported in critical condition after being found unconscious in a swimming pool. These stories are tragic and perhaps what makes them even more so is that they are preventable. Given San Diego’s great weather, children are at risk of injury in local pools everyday. If your child has been hurt, call Injury Trial Lawyers, APC to discuss your personal injury case. We have helped San Diego residents recover millions of dollars.
CDC Info on Drowning
The CDC lists the following risk factors that most often lead to drowning in people of all ages:
- Not knowing how to swim
- Inappropriate or absent pool fencing or other barrier
- Lack of close supervision
- Location and type of water body
- Failure to wear life jackets
- Alcohol use in drowning victim
- Medical disorder such as seizures
Of these reasons for drowning, lack of appropriate barrier surrounding the pool or body of water and lack of close supervision are actionable in a court of law. Studies show that appropriate fencing surrounding an entire pool can reduce a child’s risk of drowning by 83% compared to fencing that does not fully enclose the pool. There is no doubt that close supervision or even the presence of a lifeguard increases pool safety.
Who is Responsible for a Drowning Death or Injury and Why?
The issue of responsibility for a personal injury or death that has occurred is multi-faceted. With the two situations discussed above, fencing and supervision, the proximate cause of the drowning injury or death will dictate the legal argument used in the case. California’s Pool Safety Act sets forth the codified pool requirements and definitions for the state, providing that a pool must have an enclosure and must be equipped with an approved pool cover.
Additionally, certain gate latching requirements apply. There are exceptions to this law, and not all pools fall within its parameters. For example, the Act does not apply to public swimming pools, apartment complexes, or pools within a subdivision so long as that subdivision has adopted pool safety rules. That being said, just because a particular swimming pool may not be regulated by the Pool Safety Act does not mean you do not have a legal remedy.
If a child was hurt or killed due to poor supervision, rather than an improperly maintained pool area, then the cause of action in a lawsuit will be negligence. To establish a negligence claim, you must prove that someone owed a duty to the victim, that he or she breached that duty, and that the breach of the duty was the cause of the harm. Oftentimes kids attend pool parties or other events where their parents or legal guardians may not be present.
Generally, the host of such an event has a duty to supervise the other patrons, especially if they have consented to do so. If a pool has employed lifeguards, then the lifeguard and the employer may be held liable if a lifeguard’s negligence results in injury or death. Furthermore, sometimes municipalities can be held liable if the pool in which the incident took place was a public pool. Special rules apply to bringing action against a governmental body and we have discussed that in more detail here.
If the incident happens because the pool does not have adequate fencing or because the pool is poorly maintained in some other manner, then the legal issue is a matter of premise liability. Many times a property owner is negligent in maintaining conditions around his or her pool. Rather than a duty of supervision, the owner has a duty to keep his or her premises safe. In a premise liability lawsuit, the property owner is liable for hazardous conditions that he or she should have known about. In the case of a rental property, even the tenant can not be held liable for hazardous and dangerous conditions that he or she failed to remediate.
What is a Drowning or Near Drowning Case Worth?
Besides the emotional aspect of experiencing a catastrophic injury or enduring the pain of losing a loved one, the financial burdens that arise from such tragedies can be devastating.
Commonly, a near-drowning experience will lead to severe brain damage as a result of the lack of oxygen. Although costs vary depending on the severity of the brain damage, reports show that the average cost of a brain injury sustained from a near drowning experience can be as high as almost $200 thousand per year. This number does not even consider the effect of lost wages going forward.
If a child dies as a result of drowning, a parent may bring a wrongful death case. In most wrongful death actions, the individual bringing the suit must be able to show economic loss. That is to say, they somehow depended on the victim in a financial way. When a child dies, the parent’s economic claim is limited to direct expenses such as funeral or hospital bills. Additionally, the parent can claim loss of companionship. Factors in calculating the cost of loss of companionship are complicated and require experienced professionals.
It is important to note that in California, comparative fault can be an affirmative defense made by the party you are suing. This means they may claim that your actions somehow contributed to the death or injury. Sound legal counsel will help you move your case forward despite claims of contributory negligence.
Drowning Injuries or Deaths are Tragic, but You Do Not Have to Go Through it Alone
If you have lost a child or are now caring for an injured child, then you are probably feeling overwhelmed by the emotional loss and the expenses that pile up when these tragedies happen. On top of it all, you have a legal battle ahead of you that may seem insurmountable. At Injury Trial Lawyers, APC we understand the burdens on your plate and with years of experience in not only premises liability, but also child injuries and wrongful death, we will provide you with the utmost level of professional legal help.