Pools and summer go together like peanut butter and jelly, but everyone knows that pool risks are also important to keep in mind. The sobering statistics show that drowning is the second most common cause of unintentional death in children 1 to 14, and the first most common in children ages one to four. For every one child that dies, four more children must receive emergency treatment for a pool related accident.
The risks associated with pools don’t just involve fatalities, but also serious injuries. Furthermore, most of these risks apply not only to pools, but to other water features like hot tubs, splash pads, large inside tubs, and amusement parks. In addition to water safety and emergency procedures, here’s what you should know about your legal rights in the event of a pool accident.
Why are pools so dangerous?
Pool safety is usually taught from a very young age, but that will never eliminate the serious risk that comes along with pools and other water attractions. Some of the features that make these spots more dangerous than others include:
- Traumatic brain injuries
- Illness from contaminated water
- Slip and fall injuries
- Disembowelment from suction lines and drains
Additionally, while drowning is usually the first type of pool risk that comes to mind, there are also many other dangers associated with pools like:
- Lack of lifeguards or other supervision
- Wet decks and surfaces
- Chemical storage and exposure
- Electrical accidents
- Diving boards and pool slides
- Pool toys
- Lack of emergency equipment
- Pool and hot tub covers
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What are my legal options after a pool accident?
Because pool accidents can unfortunately be pretty common, it’s important to know your rights. If there is a problem, like any accident, once everyone is safe you should consider gathering the names of any witnesses, taking pictures, and filing an incident report. If the pool is liable, you may have a claim for:
- Pain and suffering
- Medical bills and expenses
- Lost wages and loss of future earning capacity
- Wrongful death
- A family’s claim for loss of companionship or consortium
The legal theories behind your claim will depend on whether the site where the accident occurred was a public or private pool.
Public pools are located on public property and are managed by the government or one of its subdivisions such as parks and recreation. There are usually state and federal laws that apply to public pools and how they must operate. While premise liability can come into play, many public pool claims focus on negligent supervision or the fact that the pool violated a state or federal law.
Claims against public pools can be particularly complex because of the laws that apply to lawsuits against government entities. These rules can include shorted times to file a claim, notice requirements, and damage caps. Talking with an experienced personal injury attorney can help you make sure your rights are protected if you’ve been impacted by an accident at a public pool.
In contrast, private pools are owned by individuals or companies that can include private homeowners, country clubs, amusement parks, and even hotels with a swimming pool. Some accidents may be caused by the actions of the pool employees or guests, such as a claim for negligent supervision. In these cases, normal tort law governing negligence claims will apply.
However, any accident that is the result of something about the pool or the surrounding area, as opposed to the actions of someone, will fall under premise liability. While the laws of premise liability vary from state to state, there is a general framework.
Most states will look to the type of guest that was injured, which includes trespassers, licensees, and invitees. Trespassers have no permission to be on the land, licensees are there with the owner’s permission, and invitees are there for the owner’s financial benefit, such as guests at a hotel with a swimming pool. The highest duty is owed to invitees, usually no duty is owed to trespassers, and the duty owed to licensees is somewhere in the middle. The owner’s duty is usually to keep the pool in reasonably safe condition and to warn guests of unreasonable dangers.
Instead of classifying guests into three types, other states will simply look to all of the circumstances to see if the pool was unreasonably dangerous and whether the owner fulfilled its duty to warn guests of unsafe conditions. A lawyer can help you evaluated your claim under the laws of your state.
Fact Check: What if there is a “not responsible for accidents” sign?
This is usually one factor a court will consider when determining whether a condition was unreasonably safe. For example, a very obvious sign that says “not responsible for accidents” just below “no lifeguard on duty” might help an owner escape liability for drowning accidents? However, if there are other unreasonably dangerous conditions, such as a diving board in a shallow pool, that sign won’t mean as much. Like most things in law, it depends on the facts.
What is an attractive nuisance?
There is one exception to the general rule that pool owners do not owe a duty to trespassers and that has to do with child trespassers. Because children may not understand all the dangers of a pool, owners have a duty to try to protect even child trespassers against unreasonable risks of harm. This duty is called the “Attractive Nuisance Doctrine” and it applies to man made creations, not natural water features such as creeks.
Under this doctrine, owners must know or should have known of an unreasonably dangerous condition, known that children may be attracted to the area because of “attractive nuisance,” and know that the condition could cause children harm. Courts will look to all the circumstances surrounding an accident to see if the owner fulfilled his or her duty under attractive nuisance laws.