Who’s Responsible For a Drowning?

Many know Florida for its waters. Floridians enjoy swimming, boating, and fishing in oceans, lakes, and pools.  These aqueous recreational activities provide fun, exercise, and social interaction, but they also claim the lives of hundreds of Floridians each year.  In 2012 alone, 440 Floridians drowned fatally, 13% of whom were under five years of age. When somebody drowns, who is responsible?  If another person causes the incident of drowning, that person may be liable for the injury as well as guilty of criminal charges, possibly including manslaughter.  But when nobody explicitly causes the drowning, whose fault is it according to Florida law?

In a public setting, such as an ocean, lake, or public pool, the government is generally able to avoid liability using the principle of sovereign immunity, which states that the government’s laws cannot be used against the government.  While a 1946 law allows the injured to file some lawsuits against the government, Florida’s Residential Swimming Pool Safety Act explicitly exempts public pools, which it defines as any pool open to the general public not located on private property.

In a private setting, the property owner is generally responsible for injuries guests incur, given that the property owner explicitly or implicitly invited the guests.  Furthermore, pools constitute attractive nuisances, so property owners are also liable for injuries that trespassers under the age of six incur, including drowning–fortunately, this liability for trespassers’ injuries generally does not extend to teenage or adult trespassers. If a lifeguard employed by a private pool negligently allows an incident of drowning, then the property owner is likely vicariously (indirectly) liable.

There are steps pool owners can take to decrease their chance of being liable for another’s death or injury.  In Florida, pool owners are legally required to have at least one of the following safety features:

  • A pool barrier that goes all the way around the pool
  • A safety pool cover
  • Alarms, or self-closing and self-latching mechanisms, on all doors and windows that exit into the pool area
  • A surface motion detector permanently in the pool (not just attached to a person)

Note that each safety feature must meet certain requirements to be legally adequate. Adding these safety features will decrease the probability of a guest or trespassing child drowning in the pool, thus decreasing the probability of the pool owner facing a premises liability lawsuit.  However, adding these safety features to their pools does not immunize pool owners from negligence charges in the event of an injury like drowning. Therefore, many pool owners choose to pursue insurance policies that cover the pool owner’s liability in the event of a premises liability case.

If you or your family member experienced drowning or another injury on somebody else’s property, or if you are a pool owner facing a premises liability lawsuit, you should contact an experienced personal injury legal team, like the Vickaryous Law Firm, for a free consultation.

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