The kids are out of school, vacations are beginning, and backyard barbeques are burning. It’s official: summertime is here. Sadly, along with summertime comes an increase in drowning deaths.
Who is liable when drowning occurs in a pool? The investigation in each individual case will determine the duties owed by each of the parties involved. When establishing premises liability, the duties owed are determined by the individual’s purpose for being on the property involved.
When investigating liability, the person involved will fall into one of four categories: invitee, licensee, trespasser, or social guest. Each category requires the exercise of a different duty owed or care to be provided. The category is determined by the nature of the visit.
The most common place for children ages 1-4 to drown is in a home swimming pool. A recent case in Cypress, Calif., involved a child drowning in their grandparent’s pool, where the family and child involved in the occurrence were guests in the home.
In this case, the grandparents had an above-ground pool that could only be entered by a ladder. To prevent small children from gaining access to the pool, the ladder could be lifted up or removed. When the grandfather came home from work, he failed to notice that a child had fallen into the pool while others were inside eating lunch. The mother discovered her child floating in the pool in full cardiac arrest. Although the child was resuscitated, she suffers from brain damage and a permanent seizure disorder.
In another incident, two children, ages 8 and 9, were left alone at a La Quinta Inn while the father drove the mother to work. Even though the father told the children to stay out of the hotel pool, they did not heed the warning, nearly drowned, and were left with severe brain damage. In the ensuing lawsuit, the hotel was alleged to have been negligent in failing to lock a gate that led to the pool.
In yet another case, two young boys, ages 5 and 7, drowned in a pool at the Cyprus Court apartment complex in which they lived with their parents Alabama. The boys were found in the pool and taken to the local hospital, where they were pronounced dead. A lawsuit was filed on behalf of the parents against Cyprus Court, their property manager, and the New Orleans-based management company.
Let’s look at who should be held liable and the issues involved in these occurrences.
The Parents and Children
When determining liability and investigating the damages, it is common to determine what the injured party did to contribute to the damages or what role any negligence on their part played in those damages.
The parents, if determined to be negligent in the lack of supervision of the children, could be held liable for the damages that occurred. The parents owe a degree of care in providing a safe environment for their children.
In the case of children, however, things are different. Children may not be able to discern imminent danger. In the law of torts, there exists what is referred to as the attractive nuisance doctrine, which states that a landowner or occupier of the land may be held liable for damages or injuries to children who may be considered trespassers because a condition on land that attractive or dangerous. It is important to point out that some states do not consider a pool as an inherently dangerous instrumentality.
The Hotel
In the case of the hotel, the children who were left alone entered the pool area through a gate that had not been locked. The younger child fell into the pool and was unable to swim, so the older child jumped in the pool to help her.
The occurrence left both children with permanent brain injuries. The lawsuit alleged that La Quinta was negligent because the night clerk admittedly forgot to lock the gate the night before.
The jury’s verdict was mixed on fault. It assessed 85 percent of fault to La Quinta and the remainder to the father. The verdict was for $5.6 million. With a reduction applied for the comparative fault of the father of 15 percent, the verdict for the plaintiffs was for $4.8 million.
Hotels owe a duty of care to their guests and must exercise reasonable care in maintaining the premises to the standard of care owed. A breach in that duty, determined by a thorough investigation, makes the hotel liable.
The Apartment Complex
In the case of the occurrence at the apartment complex pool, the lawsuit alleges that the complex, its property manager, and the management company were negligent in providing a safe pool. It also alleges that inadequate steps were taken to prevent children from gaining access to the pool.
Jere Beasley, founding partner of the law firm of Beasley Allen, who filed the suit, states that the municipal code in Montgomery, Ala., requires that all swimming and wading pool areas be enclosed by a fence, wall, or screen enclosure at least 44 inches tall with a lockable gate. There are also regulations regarding the openings in the enclosure, which must not be wider than six inches in diameter.
The apartment complex owes the duty to provide a safe premise and to warn tenants of any dangers or unsafe conditions. If, indeed, the apartment complex failed to do so, then they breached their duty owed and contributed to or caused the damages.
The Homeowners
The duty of care that homeowners owe to guests is to warn them of any dangerous conditions. They are to maintain a safe environment and inspect the premises as many times as reasonable. In many jurisdictions today, the social guest is viewed as a quasi-member of the family and is subject to the same conditions as the other members of the family.
In the case previously referenced, the homeowners were alleged to have been negligent in the following ways: failing to supervise the premises or the children; failing to remove the ladder from the pool while the children were in the house; and failing to maintain the premises in the form of a broken screen door and an open sliding glass door.
The case was settled for $2.8 million dollars. The carrier paid the homeowner’s policy limit of $300,000 plus $2.5 million.
In the examination and investigation to establish liability, claims professionals and attorneys must thoroughly investigate, evaluate, and discern who is liable for the damages. As in other tragic occurrences, fault and damages must be determined, the wrong must be made right, and those at fault must compensate those injured or damaged.
Mary Anne Medina is an instructor and course developer for Vale Training Solutions. She has extensive experience in claims process redesign and claims handling training, with an emphasis on liability loss adjusting. She has been a CLM Fellow since 2010 and can be reached at MMedina@vale-ts.com.
Defense Viewpoint
“Although most swimming pools are generally not regarded as inherently dangerous instrumentalities, the issue when there is an attempt to impose liability on a private homeowner based upon a drowning or injury in a pool often comes down to who is responsible for the failure to properly supervise children,” says William Pipkin, Jr., a partner with CLM Member firm Austill, Lewis, & Pipkin, P.C. “The issue with regard to a commercial entity, such as a hotel, often involves whether the premise’s owner maintained the pool in a reasonably safe condition. Swimming pools at commercial locations, such as hotels and apartments, are often held to a higher standard than pools at private homes, if not specifically imposed by statute, then generally in how the courts construe the common law duties of a premises owner.”