Drowning Lawsuits in California – What to Know Before Filing Your Claim

California 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.

Certain insurance policies cover damages for drowning accidents. Even if the victim signed a liability waiver, it still may be possible to recover damages.

This flow chart illustrates the stages of a drowning accident lawsuit:

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 California drowning accident lawyers discuss:

• 1. Liable parties
• 2. If the victim dies
• 3. Legal claims
• 4. Money damages
• 5. Liability waivers
• 6. Insurance
• 7. Defenses
• 8. Drowning stats
• Additional resources

1. Liable parties

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, pool owners must maintain

• special enclosures,
• safety latches, and
• alarms.¹

For drownings in public pools, potential defendants are the owners or operators. Under California’s “Respondeat Superior” laws, 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.

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

• beach,
• lake,
• bathtub, or
• lazy river.

2. If the victim dies

In California, a drowning victim’s family may bring a “wrongful death” lawsuit against the at-fault parties.³

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:

• spouse,
• closest of kin, or
• other legal representative the victim previously appointed.

3. Legal claims

In California, the most common claim in drowning accident lawsuits is negligence (or wrongful death if the victim died).⁶ It requires the plaintiff to prove:

1. The defendant owed the plaintiff a duty of care;
2. The defendant breached the duty of care through negligence; and
3. 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

Premises liability is a type of negligence.⁴ 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.⁵

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

Sometimes drownings can be attributed to defective pool equipment and accessories such as:

1. Pool gates/fences/barriers with broken latches or holes people can crawl through.
2. Ladders, slides, or diving boards with manufacturing defects or that were not correctly installed.
3. Drains and pumps that cause “suction entrapment,” such as a swimmer’s swimsuit or hair getting caught.
4. Safety gear such as ring buoys, life vests, and alarms that fail to work when needed.
5. 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.

4. Money damages

For our clients injured in a drowning accident, we have been able to recover compensatory damages for:

• Medical bills (including medical expenses for home health care and rehab),
• Counseling,
• 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

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 where the defendant acted with malice, California courts may also award punitive damages.⁸

5. Liability waivers

If a child (under 18) signs a liability waiver, it may not be enforceable. In California, 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.

6. Insurance

Whether homeowners or property insurance covers drowning accidents depends on the policy terms and limits. When insurance companies refuse to honor their policies, we can take them to court.

7. Defenses

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:

1. The victim assumed the risk,
2. The defendant had no duty of care towards the victim,
3. The victim was partly responsible under California’s “comparative fault” law, or
4. The victim signed a liability waiver.

Note that liability 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.

8. Drowning stats

Nearly 10 people drown every day in the U.S. One out of five drowning deaths involves children 14 and under.¹⁰ In California in 2021, 49 children aged 5 and younger drowned.¹¹

Drowning can occur with any amount of water. 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 due to lack of oxygen to the brain.¹³

Additional Resources

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.

See our related articles on swimming pool accident injury lawsuits, waterslide and waterpark injury lawsuits, lifeguard negligence lawsuits, boating under the influence (BUI) and lawsuits for injuries stemming from the boating accident.

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