Drowning accident lawsuits involve victims or families suing all the parties responsible for allowing the accident to happen. These defendants typically include inattentive property owners and supervisors and sometimes manufacturers of defective pool or swimming equipment.
Here are five key things to know:
- Common legal claims in drowning accident lawsuits are negligence and wrongful death.
- Depending on the case, plaintiffs may be reimbursed for medical bills, lost wages, and pain and suffering.
- For fatal drownings, the victim’s family may also recover funeral expenses and loss of support.
- Certain insurance policies cover damages for drowning accidents.
- Even if the victim signed a liability waiver, it still may be possible to recover damages.
Here at Shouse Law Group, we have helped countless drowning victims and their families recover sizable personal injury case settlements from the at-fault parties. Below, our drowning accident lawyers discuss:
- 1. Who is liable for drowning accidents?
- 2. Who sues if the victim dies?
- 3. What are the legal claims for a drowning accident?
- 4. What money damages can plaintiffs win?
- 5. What if there was a liability waiver?
- 6. Does homeowners or property insurance cover drowning accidents
- 7. How do defendants fight back against drowning lawsuits?
- 8. How common are drowning accidents?
- Additional resources
For drownings in private pools (such as in a home’s backyard or at a hotel/resort), the property owner or renter may be liable. This is especially true if the owner did not abide by the state’s public safety requirements at the time of the incident.
In California for example, pool owners must maintain
- special enclosures,
- safety latches, and
For drownings in public pools, potential defendants are the owners or operators. Under California’s “Respondeat Superior” laws for example, employers can be “vicariously liable” for the negligence of their employees.2
The staff – including lifeguards – could also be sued. Though staff usually do not have the deep pockets that owners have.
Falling From Boats
If the victim falls overboard from a boat, the vessel owner or operator may be responsible. Perhaps they failed to provide life jackets or drove the boat while under the influence.
Whenever a child drowns, the adults tasked with looking after them could be sued. It makes no difference if the drowning occurred in a
- bathtub, or
- lazy river.
Learn more about boating under the influence (BUI) and lawsuits for injuries stemming from the boating accident.
Many drowning accidents result in death. Victims’ families may then bring a “wrongful death” lawsuit against the at-fault parties.3
Family members who can file a wrongful death lawsuit include:
- Surviving spouse;
- Domestic partner;
- Grandchildren (if the deceased person’s children are deceased); or
- Anyone else who would be entitled to the property of the decedent by intestate succession laws
In many cases, drowning victims live but become vegetative. Then people with power of attorney over the victim may sue on their behalf, which may include the victim’s:
- closest of kin, or
- other legal representative the victim previously appointed.
A negligence claim requires the plaintiff to prove:
- The defendant owed the plaintiff a duty of care;
- The defendant breached the duty of care through negligence; and
- That the defendant’s negligence was a substantial factor in causing harm or death.
Examples of negligence in drowning lawsuits we have seen include:
- Lack of supervision of children near a koi pond,
- No lifeguards on duty at the neighborhood pool, water park, gym pool, hotel pool, certain beaches, etc., or
- Daycare providers leaving children unattended alone in a kiddie pool
3.2. Premises Liability
Premises liability is a type of negligence. It applies when people who own or manage property are liable for accidents that occur there. It makes no difference if they were not present for the accident.4
To establish premises liability, the plaintiff typically must prove:
- The defendant owned, occupied, or controlled the property;
- The defendant was negligent in the use or maintenance of the property;
- The plaintiff was harmed;
- The defendant’s negligence was a substantial factor in causing the plaintiff’s harm.5
Suing The Owner of The Property
In drowning accidents, a property owner may be liable if they had an unprotected swimming pool. A property owner could also be liable if there were hidden wells or other water hazards on the property.
Other potential acts of negligence we have seen include:
- Not posting adequate signage warning of safety hazards
- Failing to put locks on the door leading to the pool
- Not having emergency safety equipment on hand
- Not remedying hazards quickly enough, such as slippery floors, broken stairs, or broken lights
- Violating municipal ordinances and state statutes regarding pool safety
- Hiring unqualified lifeguards
- Not enforcing pool hours, causing people to swim when there is no lifeguard on duty
3.3. Wrongful death
After a drowning fatality, the victim’s family may bring a wrongful death claim. The family would need to prove:
- The victim (“decedent”) died;
- The defendant caused the death by negligence or intent to harm;
- Family members are suffering monetary injury from the death, and;
- A personal representative is appointed to the decedent’s estate.
In California, a wrongful death case lawsuit can be filed with a “survival” cause of action. This is brought on behalf of the victim’s estate and is meant to compensate for losses suffered by the decedent’s unintentional death.6
3.4. Products liability
Sometimes drownings can be attributed to defective pool equipment and accessories such as:
- Pool gates/fences/barriers with broken latches or holes people can crawl through.
- Ladders, slides, or diving boards with manufacturing defects or that were not correctly installed.
- Drains and pumps that cause “suction entrapment,” such as a swimmer’s swimsuit or hair getting caught.
- Safety gear such as ring buoys, life vests, and alarms that fail to work when needed.
- Malfunctioning pool filters that explode (due to compressed air)
If a drowning occurred because the victim used the pool equipment/accessory in a “reasonably foreseeable way,” the manufacturer could be liable based on strict product liability.
Drowning accident lawsuit victims who sue for negligence may recover compensatory damages. For our clients, we have been able to recover money for:
- Medical bills (including medical expenses for home health care and rehab),
- Physical and occupational therapy,
- Lost wages,
- Lost earning capacity,
- Loss of consortium of a spouse or registered domestic partner,
- Scarring or permanent disfigurement, and
- Pain and suffering
Damages in Wrongful Death Claims
In wrongful death lawsuits, damages can include:
- Funeral and burial expenses,
- Financial earnings the deceased would have earned as income, and
- Compensation for the loss of companionship and support.
In extreme cases, the court may also award punitive damages. Though the plaintiff generally has to show extreme or outrageous conduct by the defendant.8
If a child (under 18) signs a liability waiver, it may not be enforceable. A parent or legal guardian is usually required to sign.9
If the waiver was legal, there is still a chance the accident is not covered by the waiver. It all depends on the language in the waiver and the circumstances of the drowning.
In our experience, it is often possible to successfully argue that these waivers are unenforceable.
Possibly. It depends on the policy terms and limits. Insurance companies often refuse to honor their policies. Though we can always take them to court.
The people and companies we sue on behalf of drowning victims attempt to fight back by claiming the drowning was an accident or even that our client was at fault. Specifically, defendants try to argue that:
- The victim assumed the risk,
- The defendant had no duty of care,
- The victim was partly responsible, or
- The victim waived liability
7.1. The victim assumed the risk
Assumption of the risk shifts injury liability to the victim.
In a drowning accident lawsuit claim, defendants can try to argue that the victim “assumed the risk” of drowning. This is because drowning is an inherent risk of going in or near water.
7.2. The defendant had no duty of care
Homeowners generally owe a duty of care to people who come onto their property. However, the duty of care depends on who the visitor is. This includes:
Type of visitor
With trespassers, a property owner only has the duty not to create a dangerous condition. If a trespasser is injured on someone’s property, they may not be able to recover damages.
However, children may still be able to recover for injuries caused by trespassing. This typically happens if there is a dangerous nuisance on the property such as an ungated swimming pool area.
7.3. The victim was partially responsible
Even if the victim was partially responsible for the drowning, the property owner may still have to pay some damages. For example under California’s “comparative fault” law, the damages that at fault victims can receive are reduced in proportion to their degree of fault.
Note that courts hold minors to a lesser standard than adults when determining the victim’s degree of fault.
For instance, an adult who was injured in a swimming pool drowning when the pool was clearly marked with a sign to stay away might not be able to recover any damages. Though a child in the same position probably could recover damages because signs alone are usually insufficient to deter children.
7.4. The victim waived liability
Liability waivers may be required to:
- Scuba dive
These waivers are usually enforceable contracts. Though many of these waivers only protect the owner or operator from “ordinary negligence” lawsuits. They may not protect against lawsuits based on gross negligence, recklessness, illegal activities, or intentional harm.
Nearly 10 people drown every day in the U.S. One out of five drowning deaths involves children 14 and under.10 Males, minorities, and children under 4 have the highest drowning rates.11
Drowning can occur with any amount of water. Plus these tragic events can occur anywhere, including
- reservoirs, or
- hot tubs.
Many drowning cases result from unattended children wandering out to a backyard pool. Young children can suffocate in only two inches of water.12
Not all drowning victims die. We see many victims who live after near-drownings but are left with permanent disabilities. Lack of oxygen to the brain can cause such serious injuries as:
- Learning disabilities
- A permanent vegetative state
- Memory problems
- Loss of basic functioning
- Traumatic brain injury and other brain damage
For more information, refer to the following:
- Drowning Prevention & Facts – The American Red Cross’s page on drowning prevention tips and facts.
- Safety Tips – Safe Kids Worldwide’s page with drowning prevention tips for parents and caregivers.
- Drowning Facts – Centers for Disease Control and Prevention (CDC) fact sheet on unintentional drownings.
- Water Safety for Parents – Johns Hopkins Medicine’s overview of drowning causes, risk factors, and prevention.
- A Review of Interventions for Drowning Prevention Among Adults – Scholarly article in Journal of Community Health.
- Health and Safety Code Section 115922.
- Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.
- California Code of Civil Procedure 377.60.
- California Civil Code section 1714(a).
- California Civil Jury Instructions (CACI) (2017) 1000. Premises Liability. Essential Factual Elements.
- Code of Civil Procedure 377.30.
- California Civil Jury Instructions (CACI) Series 1200 — Products Liability.
- California Civil Code § 3294. California Family Code 297.5 gives registered domestic partners the same legal rights and remedies as spouses.
- California Family Code 6710; Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559.
- Centers for Disease Control and Prevention (CDC), National Center for Injury Prevention and Control. Web-based Injury Statistics Query and Reporting System (WISQARS).
- CDC. Home and Recreational Safety. Water-Related Injuries. Unintentional Drowning: Get the Facts.
- Consumer Product Safety Commission (CPSC). Submersions Related to Non-Pool and Non-Spa Products, 2012 Report.
- Neurologic long-term outcome after drowning in children. Pertti K Suominen, Raisa Vähätalo. Scand J Trauma Resusc Emerg Med. 2012. 20:55. Published online Aug 15, 2012.