SWIMMING POOL ACCIDENT LAWYER

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. Premises liability basically says that a property owner is liable for injuries caused from 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 must take steps to protect 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 the following:

• 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.

1. 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.
2. Negligence. 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 normal person would do under the 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 responsible for releasing a defective product.  When a faulty swimming pool or equipment is the cause of a drowning, many people could be responsible:

• The pool manufacturer (or the manufacturer of a component part),
• The wholesaler,
• The retail store that sold the pool to the customer, and
• The assemblers or installers

Additionally, 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 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.