Injuries Or Death Resulting From A Swimming Pool Accident

Spending a relaxing day at a pool, spa or hot tub in someone’s backyard, at a private pool club or a municipal pool owned by either a federal, state or local municipality is an enjoyable activity for many families and friends. Various accidents in and around pools can cause injury or death, such as diving in shallow water, slipping on the pool deck and/or ingesting hazardous pool chemicals. Death by drowning is, unfortunately, a common occurrence. In the United States, only auto accidents cause more deaths to children under 5 years of age than drowning. According to the U.S. Consumer Product Safety Commission, about 500 children under 5 years of age drown in swimming pools every year, and about another 3,000 children under 5 years of age are treated annually at hospitals for near-drownings.

For those children who survive a drowning accident, 5% to 20% will have permanent and life-altering neurological damage since hypoxia (brain damage) generally occurs after having been submerged for only four minutes.

Common Causes Of Pool Accidents

• Failure to have nonslip surfacing at and around the pool and other areas
• Failure to have a lifeguard present
• Dangerous defects or improper maintenance of equipment inside pool or spa/hot tub
• Negligence committed by any lifeguard on duty
• Failure to properly supervise employees working at and around a pool, including maintenance staff
• Hotel negligence
• Water park negligence
• County pool negligence
• Resort negligence

The Question Of Liability

There are three legal theories that account for liability in the vast majority of swimming pool accidents and drowning cases:

Premises Liability

Premises liability can be understood as a body of law that deems the property owner liable for injuries caused by dangerous conditions on the property which the property owner was either aware of or should have been aware of. The owner of a swimming pool has a duty to exercise reasonable care in maintaining safety for those who use it as well as others on the property. If the swimming pool owner fails to perform that duty and this failure causes an injury, he or she is negligent. Premises liability in swimming pool accidents and drownings may apply to:

• Owners of residential or private pools
• Owners of property containing commercial or private pools that are used for the purposes of guests or tenants (hotel owners, apartment complex owners, health club owners, etc.)
• Governments that own municipal swimming pools open to the community or school swimming pools
• Renters of property containing swimming pools

Some common causes that result in pool accidents and pool drowning accidents creating premises liability include:

• Negligent supervision: The owner of private commercial property, municipal, residential home or other property containing a pool open to guests has the responsibility in ensuring the guests’ safety, and may prove to be liable in the event of a pool accident or drowning if there is no lifeguard supervision. If guests are not supervised, especially when the owners have knowledge of the presence of children, those owners may face liability in the event of any drowning or any other accident in and around the pool.
• Lack of maintenance: If a pool or its safety equipment is not properly maintained in a reasonably safe condition or routinely inspected, the property owner may be liable in the case of injuries or drowning. For example, if a property owner does not take proper care in cleaning the pool before use, he or she may be liable if someone drowns as a result of the inability to see under murky water or as a result of slippery pool surfaces that create a dangerous condition giving rise to unsafe footing or other dangers.
• Lack of fencing: The U.S. Consumer Product Safety Commission states that pool drownings are 60% more likely to occur at in-ground pools that lack complete fencing than at in-ground pools that have complete fencing. With this statistic in mind, in the event of a swimming pool drowning where it can be proven that a reasonable person would have installed a fence, the pool owner may be liable for the accident.
• Lack of or hidden warning signs: Common warning signs you may see at various swimming pools such as “no running,” “swim at your own risk” (if there is no lifeguard present) and indicators of pool depth that show where it is acceptable to dive are important features of pool safety. A pool owner is not practicing reasonable care when he or she fails to use warning signs that have the purpose of preventing potential harm to others and may be liable in the event of an accident in or around the pool, including a pool drowning. Even if the warning signs are present but hidden or unreadable, the pool owner still may be liable.

Negligence

Negligence is defined as the failure to act as a reasonable person would under similar circumstances, and it is another cause of liability for owners of swimming pools where accidents in and around the pool, including drowning accidents, have occurred. Although the pool owner’s liability is created by his or her negligence in failing to utilize proper safety precautions, parties other than the pool owner (equipment manufacturers, pool-staff employers, lifeguards, etc.) can be held liable for a pool accident involving injuries or drowning if they are found to have been negligent.

Strict liability, otherwise known as negligence per se, is another legal theory that creates liability for those who, if involved in an accident such as a pool drowning, break the law and therefore have acted negligently. New York has laws specifically designed for drowning prevention, such as regulations for suction outlets and entrapment prevention and requirements for complete fencing and locked gates for all residential outdoor pools.

Products Liability

A form of strict liability, product liability is not dependent upon someone’s negligent actions (or inactions). Manufacturers and sellers of defective equipment may be held liable if that defective equipment is in any way responsible for an accident. In the case of a defective swimming pool/spa or defective equipment, potential parties responsible for it will include the pool or pool component manufacturer, the distributor, the retailer that sold the customer the pool or equipment and whoever installed them.

In attempting to prove product liability, the defects must be shown to exist as well as whether those defects created unreasonable hazards for its intended purpose. Defects are classified into three categories: design defects, manufacturing defects and marketing defects (such as insufficient safety warnings). If any of these defects are present in a swimming pool or in other related equipment or products, such as water slides, and someone is injured or drowns as a result of a product defect, all of the parties mentioned above can be held liable.

Schedule A Free Consultation To Discuss Your Options

The Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. offers free initial consultations so you can discuss your case and begin working with a proven injury attorney to help secure maximum compensation for your injuries. Call our office at 212-668-0100 or contact us online to make an appointment.