California Swimming Pool Accident Lawyers
Swimming pool drownings and accidents are, tragically, a common occurrence. What begins as a relaxing day in the swimming pool with friends and family can quickly turn into a tragedy. In a few seconds a memorable outing can suddenly become a nightmare. If you or a loved one is the victim of a swimming pool accident or drowning, you should contact an experienced attorney without delay.
What Should You Do After A Swimming Pool Drowning Or Accident?
Preserve Evidence. If possible, write down the names, addresses and phone numbers of all potential witnesses. Take photographs of the accident scene from different angles- the inside and the outside of the pool, the surrounding conditions, the signs, the fences and gates and the specific location where the accident occurred. Take photographs of any related pool equipment that contributed (i.e., a faulty diving board, a defective drain grate, a ladder in disrepair, etc.). Make sure that any defective products are not disposed of and are kept in a secure place. If the product is in the possession of someone else, seek a lawyer’s help (your lawyer may be able to file for a temporary restraining order and a preliminary injunction to avoid destruction of the product).
What Exactly is Personal Injury?
Document The Events And Your Injuries. As soon as it is practical after a swimming pool drowning, you should:
Document all events surrounding the accident;
Obtain police reports concerning the incident and records from the hospital emergency room;
Keep notes of all conversations with police, witnesses, emergency medical personnel, and hospital doctors.
In the case of a near-drowning you should:
Keep records of all medical appointments and treatments, medications taken, lost time from work and other activities, pain experienced, limitation of activities, and all incurred expenses;
Keep notes of all conversations with doctors and medical staff, and
If applicable, take photographs of any external injuries.
Contact An Experienced California Swimming Pool Accident Attorney In the aftermath of a tragic accident, hiring an attorney may not seem like a top priority. Obtaining medical attention for yourself or an injured loved one is your main concern. However, complex legal and safety issues may be involved and it is essential to consult a California swimming pool drowning lawyer as soon as possible after an accident. In the event of a drowning, it is difficult for a grieving family to think about legal issues. An experienced lawyer will be able to protect your legal rights during such a traumatic and emotional time.
Do Not Talk To An Insurance Company Without Your Attorney Present. Soon after a drowning any negligent parties will have contacted their insurance company. Every insurance company has a team of adjusters, investigators, and lawyers whose primary responsibility is to limit liability and minimize the pay out on a claim. Often, victims or their families are bombarded with paperwork and questions. In the case of a near-drowning you cannot ask for additional compensation once you have agreed to a settlement. Many times a person or their loved one injured in a swimming pool accident will discover later that injuries were more extensive than first realized, which could lead to additional unexpected medical bills and longer disability. Do not discuss anything pertaining to your injuries or about the accident which caused them without consulting a swimming pool accident lawyer first.
Swimming Pool Drowning Statistics
The U.S. Consumer Product Safety Commission (CPSC) reports that approximately 500 children under 5 years of age drown in swimming pools each year. Another 3,000 children are treated in hospital emergency rooms each year for injuries associated with near-drownings. Swimming pool accidents are the second leading cause of death in the United States for that age group (after auto accidents). In California, swimming pool drowning surpasses all other causes of death to children ages 14 and under. Of all preschoolers who are drowning victims, 70 percent are in the care of one or both parents at the time of drowning and 75 percent are missing from sight for five minutes or less.
Near-Drownings And Other Injuries
Near-drownings can result in devastating consequences for the victim. For children that survive a near-drowning, 5 percent to 20 percent suffer severe and permanent neurological disabilities since brain damage (hypoxia) generally occurs after four minutes of submersion. These life-altering injuries may require a variety of medical expenses, such as surgeries, medications, and visits to specialists. In many cases the victim requires life-time medical care and assisted-living. The same legal theories that apply to swimming pool drownings (premises liability, negligence, and products liability) also apply to near-drownings. This type of personal injury case is often quite complex and may require the use of safety experts, accident re-constructionists, and medical experts. It is therefore critical to retain an attorney experienced in swimming pool accidents.
Other common injuries associated with swimming pools are diving accidents, slip and falls, and injuries from pool chemicals. All three of the legal theories for liability discussed below apply to these types of injuries, depending on the circumstances.
Diving accidents account for over ten percent of the approximately 10,000 spinal injuries incurred in the United States every year. Nearly 13,000 people annually incur diving related injuries serious enough to require hospitalization. Defective products such as diving boards, lack of maintenance, negligent supervision, and lack of warning signs are common issues in determining liability.
Wet pool decks are slippery and many people are injured after a slip and fall in these areas. Negligent supervision and the lack of warning signs are frequent liability issues.
Pool chemicals are necessary for clean pool water, but they are also hazardous if improperly used and can severely injure a swimmer. Negligence of the pool owner or operator is the most common basis for liability.
Who Is Responsible For A Swimming Pool Drowning?
The question of liability in a swimming pool drowning depends upon the nature of the accident itself. There are three legal theories that could be involved: 1) premises liability; 2) negligence, and 3) products liability.
1. Premises Liability
Premises liability basically says that a property owner is liable for injuries that occur as a result of a dangerous or hazardous condition on the property that the owner knew about or should have known about. In the case of a swimming pool drowning, the property owner has a responsibility to take reasonable precautions to make sure that his or her pool is safe for users, or anyone else on the property. In California, the landowner has a duty of reasonable care towards anyone entering the property (even a trespasser).
The owner is negligent if he or she fails to take reasonable precautions to prevent a drowning. Premises liability applies to:
Owners of private, residential swimming pools.
Owners of property with private or commercial pools used for the benefit of guests, members or tenants (such as motels, campgrounds, health clubs, or apartment complexes).
Owners of government property (discussed below), such as municipal swimming pools open to the community or school swimming pools.
Possessors or operators of the property. For example, someone who rents the property could also be liable for damages in a drowning where he or she failed to take reasonable precautions to protect guests from injury.
Premises liability is usually based upon inadequacies in the property owner’s maintenance of the pool and surrounding area, or supervision of pool users. Some of these inadequacies in a drowning case could include the following:
Lack of fencing. According to the CPSC, in-ground pools without complete fencing are 60 percent more likely to involve a swimming pool drowning than fenced pools. A property owner may be liable after a swimming pool drowning if it can be shown that a reasonably prudent pool owner would have installed safety features such as fencing and locked gates.
Warning signs. A property owner may also be liable for a swimming pool drowning if he or she failed to post warning signs. An owner has a duty to act reasonably in warning swimmers of possible dangers, such as posting signs indicating the depth of the water or a “swim at your own risk” sign in the absence of a lifeguard. However, if a drowning occurs and warning signs are hidden or unreadable, the property owner may be liable. Some dangers are “open and obvious” and a court may not find liability because a reasonable person would have common knowledge of the dangers of swimming without a lifeguard on duty or that shallow depths are not for diving.
Negligent supervision. The owner of a private residence can be liable for a drowning for failing to supervise guests, especially if they represented that they would be watching a child. A private commercial landowner that has a pool open to the public as part of their business has a greater degree of duty to protect swimmers, and may face liability if no lifeguard is provided, or if warning signs are lacking, despite some dangers being open and obvious. If a lifeguard is negligent in his or her supervision, the employer and/or property owner can be held liable for drownings.
Lack of maintenance. Property owners can be liable if they failed to maintain the pool or safety equipment in a reasonably safe condition. For example a swimming pool that is only partially filled may give rise to liability if someone strikes their head on the bottom and is injured or drowns. If water becomes murky and the bottom slippery from debris, a property owner could be liable for a drowning if someone under the water could not be seen, or if a victim could not get out of a pool due to slippery sides and bottom.
Under the negligence basis for a drowning claim, a person is liable if they were negligent in causing the accident. Negligence is the failure to do what a reasonable person would have done under similar circumstances. As we have seen under premises liability, a property owner’s negligence in failing to make the property safe establishes his or her liability. Other parties may also be liable if their negligence leads to a drowning. For example, if pool equipment was improperly installed, resulting in a drowning, there might be a cause of action in negligence against the installers. An employer might be liable if a lifeguard is hired that was unqualified, or if the lifeguard’s negligent supervision leads to a drowning.
Another form of negligence is called negligence per se, or strict liability. Under this theory of recovery a party is liable if they have violated a law. California and many of its cities and towns have passed laws or ordinances that impose restrictions and requirements on the construction and maintenance of residential swimming pools in order to prevent accidents. These laws may require special pool covers, locked gates and fencing that completely surrounds a swimming pool. Failure to follow such ordinances will result in the property owner’s liability in the event of a death.
3. Products Liability
Products liability is a strict liability claim and is not dependent upon someone’s negligence. Under this basis for recovery a manufacturer or seller of a defective swimming pool or related equipment is held liable for placing that defective product in the hands of a consumer. When a defective swimming pool or equipment is the cause of a drowning, there are several potential responsible parties:
The pool manufacturer (or the manufacturer of a component part),
The retail store that sold the pool to the customer, and
Anyone who assembled or installed the pool.
In this type of action, it must be shown that the pool or related equipment was defective and that the defect made the product unreasonably dangerous for its intended use. There are three types of defects:
Design defects that are present in the design of the product before it is made,
Manufacturing defects that occur in the manufacturing process, and
Marketing defects, such as inadequate safety warnings.
As an example, suppose a child comes in contact with an underwater pool drain and the suction from the pump is so strong that the child either cannot pull free, or is entrapped when a foot or hand becomes stuck in the drain grate. If the child is injured or drowns, a product liability action could be filed against the pool manufacturer, who may be liable for a design defect. Sometimes, the design of the entire pool itself may be faulty. For example, a dangerous condition might exist where the shallow and deep areas are not clearly marked or if it is difficult to see where the pool is deep enough for diving.
Products used in or around the pool can also be defective and be extremely dangerous. Water slides could have weak spots from a manufacturing defect that results in falls. Flotation devices for children could be defective because of a lack of adequate instructions for safe use, clearly indicating a marketing defect.
Drownings often occur on property owned by a federal, state, or local entity. There are thousands of municipal pools in cities across the country, as well as pools in public schools and federal, state, and county parks and recreation centers. The same legal theories of premises liability and negligence that apply to private property owners also apply to governmental entities. Governments have the same duty to maintain their swimming pools in a safe condition to ensure that their employees are not careless in their maintenance of facilities and supervision of swimmers. However different rules apply if you sue a governmental entity for liability after a drowning or accident. There are very specific requirements for giving notice and filing a claim for a drowning. If these rules are not followed you can automatically lose your right to receive compensation from the government. The complexity of filing a claim against the government makes it imperative to get the assistance of an attorney experienced in these types of lawsuits.
What Kind Of Compensation Can I Recover?
Damage awards in a swimming pool accident claim are intended to help restore the victim physically, emotionally, mentally, and financially. In the case of a drowning, a claim for damages is filed by the surviving beneficiaries of the victim as a wrongful death action.
In general there are two main types of damages: 1) Punitive damages are intended to punish the defendant for his or her bad conduct and to act as a deterrent to prevent the defendant and others from acting the same way. 2) Compensatory or actual damages are intended to cover all the expenses caused by the accident. Actual damage awards can include the following:
Medical expenses. Includes bills and expenses for medication, ambulance fees and services from doctors, hospitals, health care providers, related to your accident. In the case of a drowning, if the victim had medical expenses before dying they can be awarded to the victim’s survivors.
Funeral expenses. Costs associated with the victim’s funeral and burial in a drowning.
Pain and suffering. This is an award to compensate the victim for past and future physical pain caused by the accident. In a drowning an award can be made to the victim’s survivors for the pain and suffering caused by the victim’s death.
Lost inheritance. The survivors of the victim may be awarded the value of a prospective inheritance the victim would have received if he or she had lived.
Lost wages. This award represents the amount of money the victim would have earned from the time of the injury to the final judgment or settlement. Anticipated lost earnings and lost work benefits can also be awarded to the victim’s survivors in the case of an accidental death.
Lost earning capacity. If the victim’s injuries have impaired the victim’s ability to earn money in the future, compensation can be awarded for that loss.
Future medical expenses. This applies to continued medical care for the resulting injuries.
Loss of consortium. These damages apply to the loss of assistance and companionship of the spouse. Usually the spouse of the injured person makes a claim for these damages and in some cases the injured spouse will make a claim also. Parents may also recover these damages when their child is injured and the injuries interfere with their normal family relationships.
Loss of society and companionship. This generally occurs in wrongful death cases when the immediate family members of the victim make a claim for the loss of love, comfort, and companionship they would have enjoyed if the person had survived the accident.
Of course, in any personal injury action or wrongful death claim damages must be proven. It is therefore very important to review your possible damages with an attorney experienced in swimming pool accident cases.
Choosing The Right Swimming Pool Accident Attorney
There are many difficult issues facing a family that suffers the tragic loss of a child or loved one in a swimming pool accident. The critical injury of a child can have devastating and long-lasting effects on health, finances, and family relationships. Personal injury actions for near-drownings and wrongful death claims for drownings can involve complex legal, factual, and evidentiary issues. Choosing the right lawyer is therefore a critical decision. The following factors are essential when choosing a lawyer:
Choose a lawyer that is experienced and well established. Choosing an attorney with a proven track record of successful negotiations and trials is essential. An experienced lawyer will be able to quickly and effectively initiate investigations, secure evidence, locate witnesses, file necessary documents, and keep your case moving forward.
Choose an attorney or firm that is well-financed. Many swimming pool cases take a large amount of resources, especially if they happen to go to trial. Determining liability in a drowning requires extensive discovery, witness interviews, and accident reconstruction. It is important that your lawyer has the financial resources to undertake all the essential elements of the case.
Choose a lawyer that will be committed to your case. An effective working relationship between the attorney and the client is essential. You should seek a lawyer who will keep you informed of the progress of your case, who is professional and honest, who remains in contact, promptly returns phone calls, and who will zealously protect your interests.
After an accident you should immediately seek the advice of competent lawyers to make sure that your rights are preserved. Make sure you have the information you need to make an educated decision on choosing a lawyer.
The Reeves Law Group has handled thousands of personal injury cases successfully, including numerous swimming pool drowning cases, while earning a reputation of professionalism and competence. We have the experience, skill, and resources to ensure that our clients will obtain optimum representation in their wrongful death or accident claim.