A two-year-old boy is dead after an apparent swimming pool drowning at an Augusta hotel only five miles from his home.
Passers-by found Brandon Holmes’s seemingly lifeless body in the swimming pool at the Baymont Inn on Gordon Highway. Several agencies, including the Richmond County Sheriff’s Office and the Richmond County Coroner’s Office, are investigating the matter and will not say whether or not charges will be filed.
One aspect of this investigation will involve code compliance. According to the Richmond County Licensing and Inspection Department, private pools that are more than two feet deep must be entirely surrounded by at least a four foot high fence that has nothing but self-closing and self-latching gates; the gate mechanism must be at least four-and-a-half feet above the ground on the inside of the fence.
Legal Issues in Landowner Liability Matters
To determine the duty of care in these cases, most courts use a classification system that has its roots in English common law (which is judge-made law as opposed to laws made by an elected legislature); a few courts have abandoned the classification system in favor of a general duty of care that applies in all three cases.
Trespassers is a rather pejorative term for anyone who is on the land without the owner’s express or implied permission, such as an election worker or a door-to-door salesperson. Landowners have almost no legal duty to keep trespassers safe, so the stories of burglars who are injured at the houses they rob and receive millions of dollars in damages are basically urban legends.
In most cases, the landowner must refrain from intentional harm against trespassers but has no other duty. There are several exceptions, including:
- Attractive Nuisance: If the property contains a swimming pool or other place where children are known to play, the landowner has a duty of reasonable care, because children cannot make good decisions in these areas and sometimes play in risky places.
- Frequent Trespasser: If the owner has reason to know that people will trespass on the land (perhaps a rural area where hunters often wander over the property line), the owner has a duty of care.
In both these cases, the duty of care usually means that the owner must remedy unsafe conditions, like an open pit or an unattended swimming pool.
Most visitors are invitees, because they are on the land after the owner’s express or implied invitation and the owner receives a benefit from their presence. This category applies to business invitees, like shoppers, hotel guests, apartment tenants, and so on. This label applies even if no money changes hands, as is the case with window shoppers, or if there was no possibility of money changing hands, as is the case with job applicants. The invitee designation also applies to most social guests, because even though there may be no financial benefit, the owner derives the benefit of social interaction from these individuals.
If the injured victim is an invitee, the owner has a duty to make the premises reasonably safe. The owner also has a duty to frequently inspect the premises and promptly remedy any potentially hazardous conditions.
Visitors who fall between trespassers and invitees are licensees. These individuals include guests of hotel guests and friends of tenants, because they are clearly not trespassers but the owner does not benefit from their presence. In these cases, the landowner has a duty to warn guests about latent defects, like loose stairway rails or covered-up wells.
Violation of Statute
If the defendant violated a safety law, such as the local ordinances concerning swimming pool enclosures, the negligence per se (negligence “as such”) shortcut may apply. In some states, if negligence per se applies, the defendant is negligent as a matter of law. But in Georgia, this doctrine only creates a rebuttable presumption of negligence and the plaintiffs must still establish, by a preponderance of the evidence, that the statutory violation proximately caused their injuries. Defendants can rebut this presumption by introducing evidence that the statutory violation was excusable or they were not negligent.
In the above story, assume that the surrounding fence was only 3 ¾ feet high. Although the hotel violated the safety ordinance, the jury could conclude that this violation did not proximately cause the drowning, and could therefore decline to hold the defendant liable. But assume that the hotel followed the ordinance in every way, except the latch was on the outside of the fence where a child could reach it. The jury could then conclude that the defendant was negligent, possibly even if “no lifeguard on duty” or similar signage was in place, because contrary to popular myth, such signs are not ironclad defenses to negligence claims.
Damages in Premises Liability Cases
Victims who are injured by slipping on wet floors, falling on poorly-lit parking surfaces, and other such instances are entitled to compensation for their:
- Economic damages, such as past, current and future lost wages, property damages, and past, current, and future medical bills; and
- Noneconomic damages, including emotional distress, loss of consortium (companionship), and loss of enjoyment in life.
If the plaintiff presents clear and convincing evidence that the defendant acted maliciously or was consciously indifferent to the consequences of his or her actions, the plaintiff may receive punitive damages that are designed to punish the tortfeasor (negligent actor) and deter future wrongdoing. In most cases, these damages are capped at $250,000.