Drowning accidents and deaths can occur at any time and may be the result of:
- property owner negligence;
- failure to protect children from drowning dangers;
- untrained or improperly trained lifeguards; or
- improperly maintained pool equipment.
Lawsuits related to drowning accidents are rooted in Colorado negligence law. Negligence occurs when:
- a person owes a duty of care to another person;
- that person breaches the duty of care; and
- a person suffers harm or death as a result of the breach.
Most drowning accidents are related to Colorado premises liability actions. These types of personal injury cases deal with:
- the legal status of the victim while on the property;
- the rights and responsibilities of the owner of the property; and
- the applicable level of duty of care imposed on the owner as a result.
When an employee of a company is responsible for a drowning accident, the doctrine of respondeat superior exists to:
- hold a Colorado employer
- liable for damages
- for the wrongful acts of its employees.
Below, our Colorado personal injury attorneys address frequently asked questions about drowning accidents in personal injury lawsuits and the injuries you may have suffered:
- 1. When can I sue for a drowning accident in Colorado?
- 2. Why would I file a personal injury lawsuit based on negligence for this type of accident?
- 3. When is my drowning accident case related to Colorado premises liability law?
- 4. What type of lawsuit should I file if someone dies as the result of a drowning accident in Colorado?
- 5. What types of damages are available in a drowning accident lawsuit?
- 6. Are there legal defenses that can be raised?
1. When can I sue for a drowning accident in Colorado?
A person can file a lawsuit related to a drowning accident when:
- the harm or death
- is caused by negligence or intentional conduct
- of another person or business.
While many of these “accidents” may at first appear just to be a freak incident where no one is at fault, oftentimes the reason for the drowning is the result of another person’s wrongdoing or inattention.
When this is the case, a personal injury lawsuit can compensate the victim and the victim’s family for the harm they suffered.
2. Why would I file a personal injury lawsuit based on negligence for this type of accident?
To recover damages after a person drowns, the family or victim may have to prove negligence on the part of another person, including the property owner.
A person can do this by showing:
- that the person being sued (the defendant) owed a duty of care to the plaintiff;
- that the defendant breached that duty of care;
- that the defendant’s breach was the cause of the injury; and
- that the plaintiff sustained monetary damages stemming from his or her injuries.1
2.1 Can I sue the company that hired a negligent employee?
Yes. Under Colorado’s vicarious liability laws, and the doctrine of respondeat superior, an employer can:
- be held indirectly liable for an accident
- caused by the negligent conduct of its employee
- while the employee was acting within the scope of his or her employment.2
A certain amount of control must exist by the employer over the employee in order for this doctrine to apply. Courts in Colorado consider certain factors in determining whether sufficient control exists, including:
- control over the employee;
- the right to hire and fire the employee;
- the right to assign certain hours and locations for work;
- the right to specify how work is performed; and
- a certain amount of direction over the employee’s duties.3
Overall, it comes down to how much control the employer has over the employee.4
3. When is my drowning accident case related to Colorado premises liability law?
Premises liability is a type of negligence action that:
- holds owners of land responsible
- for certain injuries to others
- that occur on their property.
When a drowning accident occurs on a person’s property, he or she may be liable for the damages that result.
3.1 What is a landowner for purposes of these cases?
A landowner is defined as:
- an authorized agent or a person in possession of real property; and/or
- a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.5
3.2 What are the different legal statuses of people on property?
A landowner owes a different duty of care to different individuals depending on their legal status while on the property.
There are three legal statuses relevant to premises liability cases:
A judge determines the legal status of a person while he or she was on the property and looks to certain factors to determine the legal status of the injured person at the time of the injury.
3.3 What damages are available for each legal status?
- Trespassers only receive damages willfully or deliberately caused by the property owner.
- Licensees only recover damages caused:
- by a property owner’s failure to use reasonable care concerning dangers he or she knew about (or should have known about); or
- the property owner’s unreasonable failure to warn of dangers he or she did not create and are not ordinarily present on the property.
- Invitees only recover for damages caused by landowner’s failure to use reasonable care to protect against dangers he actually knew about or should have known about.6
4. What type of lawsuit should I file if someone dies as the result of a drowning accident in Colorado?
If a victim has died because of a drowning accident, certain family members can file a wrongful death action.
Colorado’s wrongful death laws let families recover damages after a loved one has died as the result of another person’s negligence. This type of case results from an unnecessary death caused by the negligence or other wrongful act of another person.
4.1 Who can file a wrongful death action in Colorado?
In a wrongful death case, only certain family members are permitted to file this type of personal injury lawsuit.
- the spouse of the victim;
- the heirs (children) of the victim;
- a designated beneficiary; or
- the parents of the deceased (if no spouse or children).7
Each type of family member has certain times at which they can file as set by Colorado law.
4.2 When is a survival action appropriate in these cases?
A survival action is a lawsuit filed on behalf of a deceased victim for money damages suffered by him or her in the time he or she survived before passing.
This type of claim occurs when:
- the decedent survives for a period of time
- before dying
- after an accident
- caused by another person’s wrongful actions (e.g., negligence).8
5. What types of damages are available in a drowning accident lawsuit?
When a person drowns and that drowning is the result of another person’s negligence, the victim and the family can get damages in the form of:
- medical bills;
- future medical bills;
- property damage;
- lost wages;
- lost earning capacity
- pain and suffering;
- emotional distress;
- emotional distress;
- loss of enjoyment of life; and
- loss of consortium.
6. Are there legal defenses that can be raised?
Some drowning accidents are just accidents and no one was to blame. Innocent homeowners may face a lawsuit if someone unfortunately drowns on their property.
There are defenses available if a person drowns on the property of another, including, but not limited to:
- Assumption of the risk;
- No duty of care;
- The victim was partly responsible (modified comparative negligence);
- The victim waived liability.
Call us for help…
For questions about drowning accident lawsuits in Colorado or to confidentially discuss your case with one of our skilled Colorado personal injury attorneys, do not hesitate to contact us. For cases in Nevada, please see our page on bringing a drowning accident lawsuit in Nevada court.
We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.
- Lopez v. Trujillo, 399 P.3d 750 (Ct. App. Div. 1 2016). (To prove a prima facie negligence claim, the plaintiff must prove: (1) the defendant owed a legal duty of care; (2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant’s breach caused that injury. citing Vigil v. Franklin, 103 P.3d 322, 325 (Colo.2004). Of these elements, duty is the threshold element.)
- West’s Colorado Practice Series, 7 COPRAC 14:3 (Employees, servants, and agents–Existence of master-servant relationship).
- Same as 2.
- Id. (The issue of control is a crucial factor in determining whether there is a master-servant relationship).
- CRS 13-21-115(1). (Actions against landowners).
- CRS 13-21-115(3)(a)-(c).
- CRS 13-21-201(1)(b); CRS 13-21-201(1)(c).
- CRS 13-20-101. (What actions survive).