Backyard swimming pools are a great way for families and friends to have fun, and they are also a huge responsibility, both in terms of maintenance and in terms of liability. Every year, about one in five of the 3,500+ accidental drowning deaths per year are children 14 and younger. Of the ones that survive, 50 percent require emergency and follow-up medical care; the average serious injury rate is about six percent.
As summer kicks into high gear, it is a good time to go through some of the legal and practical aspects of child swimming pool drownings and negligence.
Most courts use a common-law categorization system to determine a landowner’s legal duty in a given situation, and children are protected by all of them, to one extent or another.
In some child swimming pool drownings, the victim wanders into an empty backyard, plays in an unattended pool, and suffers permanent injury. People who do not have the owner’s permission to be on the land are trespassers. In most cases, owners have no legal duty towards trespassers except to refrain from intentionally harming them, so the stories of burglars who injure themselves while breaking and entering and subsequently sue the owners for millions of dollars are mostly urban legends.
There are several exceptions, and one of them is the attractive nuisance rule. From a purely chemical and biological perspective, children cannot appreciate the dangers inherent in certain activities. For example, children will chase bouncing balls into busy streets, because they cannot comprehend the hazard that is obvious to adults. The same thing applies to swimming pools: children will play in empty pools without giving the matter a second thought. Since they cannot protect themselves, the law steps in to protect children. This doctrine applies if the landowner knew that:
- There was a potentially dangerous hazard on the property,
- The owner knew that children would be drawn to the hazard, and
- The owner knew that children could be injured.
In attractive nuisance cases, the landowner typically has a duty of reasonable care.
Typically, people who are on the land at the landowner’s express or implied invitation are invitees. This designation applies any time the owner derives an economic or noneconomic benefit from the guests’ presence. This analysis is true even if no money changes hands, because job applicants, window shoppers, and third-party vendors are all invitees.
If the victim is an invitee, the owner has a duty to frequently inspect the premises and ensure that they are reasonably safe.
Breach of Duty
The jury cannot work backwards in negligence cases and conclude that, since the victim was injured, the landowner must have breached the duty of reasonable care. Instead, there must be a specific act or omission that caused the injury.
To help determine the duty, the Consumer Product Safety Commission has developed a series of safety guidelines in this area:
- Barrier: A wall or fence must go all the way around the pool. If part of the house doubles as part of the barrier, the doors must be alarmed.
- Dimensions: The barrier must be at least four feet high, and if there is a gap at the bottom, it cannot be more than four inches wide. Additionally, if the barrier is a fence, the slats cannot be more than four inches apart and must be extremely difficult, or impossible, to climb.
- Gates: Pool entrances/exits must open outward and have self-locking latches that are controlled from the inside of the fence.
State, county, and/or local governments may have different rules in this area, and if so, those laws generally determine the breach of a duty, if any.
Failure in one or more areas does not necessarily trigger liability, because in most cases, there must be a connection between the breach and the injury. For example, if Mom and Dad agree to watch their child at a pool and then leave, the owner may not be liable if the child is injured. Even if the fence was too short or the latch was in the wrong place, in this instance, these deficiencies did not cause the injury.
Whether the victim was a trespasser or an invitee, the plaintiff must prove knowledge. If this is done through circumstantial evidence, the 1911 case of Anjou v. Boston Elevated Railway Company offers some guidance. The plaintiff in that case slipped on a banana peel and was injured; all the witnesses agreed that the peel was “flattened down, and black in color,” as if it had been “trampled over a good deal.”
The owner claimed it was not legally responsible for damages because it did not know that the peel was on the ground and therefore had no duty to clean it up. But the court found for the plaintiff, reasoning that since the peel was black, it had been on the ground for quite some time and the owner had constructive knowledge (should have known) about the hazard.
The same analysis applies in swimming pool cases. Assume that the latch breaks, a child gets past the fence, and is injured in the pool. If the latch only broke a few hours earlier, the landowner is probably not liable. But if the latch had been broken for several days or weeks and the landowner did not fix it, liability most likely attaches.
Contact an Assertive Attorney
Unintentional swimming pool drownings injure or kill hundreds of Georgia kids every year. For a free consultation with an experienced personal injury lawyer in Fayetteville, contact the Wade Law Offices. An attorney can arrange for victims to receive ongoing medical care, even if they have no money and no insurance.