Every year some 350 children under the age of five drown in backyard swimming pools across the U.S. Another 2,600 children are treated for near-drowning incidents in hospital emergency rooms. But whose responsibility is pool safety (and who can be the subject of a drowning accident lawsuit) in the state of California?
It depends on the case. The burden of preventing swimming pool accidents may fall on the owner of the pool and/or the child's parent or guardian.
Different visitors / different responsibility
Homeowners have a "duty of care" to people who are on their property. Another term for this is "premises liability."
In California, a homeowner's duty of care is greater toward people who are on the property for the homeowner's benefit. These may include gardeners, contractors and others who perform services for the homeowner.
Homeowners also have a duty of care towards invited guests, particularly when children are present. Property owners or occupiers must ensure that minors on their property are adequately supervised, especially when using the pool.
Usually little or no care is owed to adult trespassers, since they are breaking the law in order to be there. However, there is a duty of care toward underage trespassers because swimming pools are considered an "attractive nuisance."
In short, a homeowner must take reasonable steps to make the pool safe for any anticipated use by children.
Liability for unintentional drowning
Homeowners may be liable for accidents if they do not take adequate measures to prevent unauthorized people from gaining access to the pool. In some cases, these "adequate measures" are clearly outlined by local county or municipal codes.
In California, all new pools must comply with the requirements of the Swimming Pool Safety Act, set forth in sections 115920-115929 of the California Health and Safety Code. The Act provides, among other requirements, that access gates in residential swimming pool enclosures be at least 60 inches and self-closing and have a self-latching device placed no lower than 60 inches above the ground.
Californians may remember when former Mötley Crüe drummer Tommy Lee and his wife, actress Pamela Anderson, were sued for $10 million after a four-year-old boy drowned in their swimming pool at a child's birthday party in 2001. According to Lee, the child had been left unsupervised "for a minute." Although a jury ultimately determined that Lee and Anderson were not negligent, the couple still faced a great deal of anguish as well as considerable legal fees.
Safety recommendations for pool owners
To protect against liability and offer your guests the greatest safety, we recommend the following:
Make sure the pool is installed in accordance with pool safety requirements for the state of California and your city/county.
- Allow people to enter the pool only if accompanied by a responsible adult.
- Do not leave toys in the pool that could be inviting to young children.
- Make sure your adult guests supervise children under their care when they visit.
- Do not allow intoxicated guests to use your pool.
- Consider not having a diving board.
- Maintain a homeowner's insurance policy that includes a minimum of $1,000,000 coverage for swimming pool injuries.
- Surround the pool with a gated fence at least eight feet high.
- The gates should be self-closing, with latches at least 60" high.
- Ideally, the pool should be covered and the cover secured whenever the pool is not in use.
- Make sure everyone who lives in the house knows how to swim.
- People who live in the house should know basic first aid and life-saving techniques.
- Have adequate lifesaving equipment (not just flotation devices) located close to the pool.
- Consider installing a pool alarm to alert you when the surface of the water has been disrupted.
Can I be charged with a crime if someone dies by drowning in my pool?
Although criminal charges in connection with accidental drownings are rare, they are not unheard of. Earlier this summer police opened an investigation to discover whether criminal negligence led to the near-drowning of a 13-year-old boy at a school party. Over 100 people were present at the party. The police ultimately concluded that no one was criminally liable. However, the boy is in a coma and his parents have had to go to court to keep him on life support.
Losing a child is difficult under any circumstances. When you add in the possibility of losing your home to a civil lawsuit, or your freedom to criminal charges, it can be absolutely unbearable.
We wish you and your loved ones a safe and happy summer. But if you or someone you know is facing criminal liability for a swimming pool death or accident, we invite you to call us for a free consultation.
Our experienced California criminal defense lawyers are committed to protecting the rights and freedom of individuals accused of crimes up and down the state. Please call us today so we can protect you. (Also see our article, Can landlords be liable for tenants' criminal activities?)