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Serious Injuries Require
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.
There are three legal theories that account for liability in the vast majority of swimming pool accidents and drowning cases:
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:
Some common causes that result in pool accidents and pool drowning accidents creating premises liability include:
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.
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.
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.
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