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Drowning Accidents

Swimming Pool and Diving Accidents

In 2000, 3,343 Americans died as a result of accidental drowning related to diving and swimming accidents. Drowning represents the second leading cause of injury related deaths for children fourteen and under. Each year 5,000 children are hospitalized for near-drowning injuries. Twenty percent of near-drowning victims suffer severe, permanent neurological disability. Long-term care for near-drowning victims can range from $180,000 to 4.5 million dollars, depending on the severity of the injury.

In addition, diving accidents account for over ten percent of the approximately 10,000 spinal injuries incurred in the United States each year. Nearly 13,000 people a year suffer diving related injuries serious enough to require hospitalization.

Legal Rules

Liability for drowning and diving accidents incorporates premises liability law. In most states premises liability law distinguishes between trespasser, a person whom the owner did not give permission to enter his property, licensee, a person whom the owner allowed on his property as a social guest, and invitee, a person whom the owner allows on his property for purposes of business. A person's ability to recover for an injury on another's property, specifically in the case where the injury occurred in a pool, lake, pond, etc., depends on the category in which a court places the injured person.

If a court categorizes a person as a trespasser, the law generally protects a property owner from liability in all cases where the trespasser sustains an injury, except when the owner acts "wantonly or willfully." Simply stated, this protects a property owner when a trespasser incurs and injury on the owner's property, unless the property owner did something to intentionally cause the trespasser harm or injury. An exception to this rule, however, exists in the case of young children. Several states' courts have identified swimming pools as "attractive nuisances." An attractive nuisance is a danger on a property owner's land that attracts trespassing children, creating a duty on the part of the property owner to prevent injury to the trespassing children.

In addition to these courts' rulings on attractive nuisance, three states, Arizona, California, and Oregon, and numerous cities and towns have passed laws or ordinances requiring property owners to erect fences around private pools to prevent children from accessing the pools. Failure to erect a fence in states, cities or towns with such ordinances can result in liability, either under a theory of negligence or strict liability, in cases where trespassing children drown or injure themselves in pools. Failure to maintain a fence may also result in liability if a trespassing child incurs and injury, if the plaintiff can show that the property owner failed to use reasonable care in maintaining the fence.

For guests, or licensees, of a property owner, establishing liability for injury or death resulting from the use of a pool rests on the property owner's failure to warn guests of dangers that the guests would otherwise not discover themselves. Some states' courts have found that the danger of drowning or injuring oneself diving or swimming in a pool is "open and obvious." Open and obvious dangers are one's which the guests can recognize themselves, thereby relieving the property owner of the duty to inform the guest of the danger. If a court identifies the danger of swimming or diving as open and obvious, then the property owner has no duty to warn guests about the dangers inherent in using the pool.

Warning Signs

In some states clarity of water, signs warning users of the dangers of diving into shallow water, safety equipment, or defects in the pool, and other factors can effect whether a court holds a property owner liable. In such cases, the plaintiff must establish that the existence of a problem, or absence of a safety precaution, contributed to the conditions that caused the injury.

Owners of pools open to the public as part of their business owe a greater duty of care to those who use the owners' pools. Members of the general public, categorized as invitees, who incur injures as a result of an owner's failure to make his or her pool safe may have a viable claim. In the case of invitees, even open and obvious dangers may result in liability. In addition, many cities and towns have ordinances that require either a lifeguard or a sign warning of the absence of a lifeguard and describing the dangers of swimming. In some states, failure to post these required warnings has been sufficient to establish that an owner did not maintain his or her pool in a reasonably safe manner and resulted in liability for injuries. This standard differs from the standard for licensees, where courts have held that the owner does not need to warn swimmers of the inherent dangers of swimming.

Immunity Rules

Several states have enacted legislation, known as Recreational Use Immunity statutes, which immunize property owners from liability in cases where a private property owner opens his property to the general public free of charge. While in many states, like Louisiana, this statute protects owners of pools from liability, some states, such as Pennsylvania do not include swimming pools within the scope of their Recreational Use Immunity statutes. Recreational Use Immunity statutes serve to limit an owner's liability to cases in which the owner fails to warn of a danger that is not open and obvious. In this way, the statutes serve to categorize a person who would otherwise be an invitee, as a licensee, or social guest. The statutes are meant to encourage private property owners to open their land to the general public by protecting them from suit.

In cases where a diving or swimming accident results in drowning or otherwise results in death, the estate or surviving relatives of the deceased may file a claim for wrongful death. A successful plaintiff in a wrongful death suit may recover compensatory damages including lost future earnings, loss of consortium, and medical expenses. Successful plaintiffs suing under personal injury claims for diving or swimming accidents may recover compensatory damages including lost wages, pain and suffering, and medical expenses. In cases where a child sustains injury or dies in a pool, a claim of negligent supervision may be viable, even if the owner maintained the pool in a reasonable safe condition, if the plaintiff can establish that the defendant had a duty to watch the injured or deceased child as he or she swam.

Premises liability law represents a nuanced and complicated area of the law. If you believe that you have sustained injuries in a swimming or diving accident you should contact a qualified attorney to help you determine whether another's negligence contributed to your accident.

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