Drowning accidents and deaths can be caused by property owner negligence or failure to protect children from drowning dangers. Under California personal injury law, the victim or surviving family members can recover damages after a drowning death. Drowning lawsuits can hold
- property owners,
- untrained lifeguards, or
- inattentive supervisors
liable for drowning injuries.
Below, our California personal injury lawyers discuss the following frequently asked questions about drowning lawsuits in California:
- 1. When can I sue for a drowning accident in California?
- 2. How common are drowning accidents in California?
- 3. Who is at the biggest risk of drowning in California?
- 4. What are my legal claims for a drowning accident in California?
- 5. Who can be held liable for a drowning death?
- 5.1. Am I liable if someone drowns in my pool in California?
- 5.2. Who is liable if someone drowns in a backyard pool in California?
- 5.3. Who is liable for a drowning in a public pool in California?
- 5.4. Who is responsible for a drowning at the beach in California?
- 5.5. Who is liable for a boating accident drowning in California?
- 6. What damages are available in a California drowning lawsuit?
- 7. Who can sue after a drowning accident in a wrongful death lawsuit?
- 8. Does homeowners or property insurance cover drowning accidents?
- 9. What defenses are available if you get sued after a drowning accident?
- 9.1. Assumption of the risk
- 9.2. No duty of care
- 9.3. The victim was partly responsible
- 9.4. Victim waived liability
- 10. Can I file a lawsuit if I signed a waiver for my child in California?
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.
Drowning deaths can appear to be caused by a simple accident. However, many drowning deaths are caused by someone else's actions or inaction. A property owner or other responsible person could be liable for damages caused by a drowning accident.
The family of a drowning victim can file a lawsuit against the individuals responsible for the accident in a personal injury lawsuit. Under California negligence laws, a property owner, lifeguard, or supervisor could be liable for a drowning accident.
To recover damages after someone drowns, the family or victim may need to prove negligence on the part of the property owner, by showing:
- That 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 the harm or death.1
Most drowning accident lawsuits are against property owners under the laws of “premises liability.” Property owners owe people a duty of care to maintain their property, repair dangerous conditions, and warn others about any dangerous conditions.
Drowning accidents may also be caused by lack of proper supervision or understaffing. Many drowning accidents involving children are caused by inattentive:
- Daycare employees
When an employee is responsible for watching a child who drowns, the employer may be held liable for the accident. Under California's “Respondeat Superior” laws, an employer can be held vicariously liable for the negligence of their employees.2
When someone drowns, it can also be caused the reckless or intentional actions of another person, including fighting or boating accidents involving alcohol.
Between 2005 and 2014, there were an average of over 3,500 accidental drowning deaths each year in the United States. One out of every five drowning deaths involve children age 14 and under. For each child drowning death, there are another 5 children who require emergency care for nonfatal near-drowning injuries.3
Nearly 10 people drown every day in the U.S.
Drowning is the second leading cause of death for children in California between the ages of 1 and 4. According to the California Department of Public Health's EpiCenter data, between 2010 and 2014, more than 160 children between the ages of 1 and 4 died from drowning. Between 2010 and 2015, more than 740 children in that same age group were hospitalized after near-drowning accidents.4
According to the World Health Organization (WHO), “drowning is the process of experiencing respiratory impairment from submersion/immersion in liquid.” Suffocation in water can lead to death but nonfatal drowning injuries can lead to permanent injuries. Lack of oxygen to the brain can cause severe brain damage and lead to long-term disabilities, including:
- Learning disabilities
- A permanent vegetative state
- Memory problems
- Loss of basic functioning
- Paralysis. 5
Drowning can occur with any amount of water in any location, including the beach, reservoirs, or even a hot tub. However, the majority of children who drown by accident in California drown in residential pools, including a pool at the victim's home or neighbor's home. Other drownings involve public swimming pools where a lifeguard may even be on duty. California's health and safety laws for public pools regulate:
- Commercial pools
- Community pools
- Hotel, motel, and resort pools
- Apartment house pools
- Public or private school pools
- Gym pools
- Campground pools
- Homeowner association pools 6
For young children, it only takes a couple of inches of water to cause a child to drown. A toddler could drown in a:
- Bucket of water
- Wading pool
- Kiddie pool
- Landscaping features 7
Anyone can be at risk of a drowning accident, even experienced swimmers. However, a number of factors may place some people at a greater risk of drowning than others, including:
- Swimming ability
- Pool or open water
- Rivers, lakes, ponds
- Surf conditions
- Failure to wear life jackets
- Presence of lifeguards
- Adult supervision
- Alcohol impairment
- Seizure disorders 8
According to the Centers for Disease Control (CDC), males, minorities, and children under the age of 4 have the highest drowning rates.9
Males are more than twice as likely to drown compared to females. Almost 80% of drowning deaths involve males.
Children between the ages of 1 and 4 years old have the highest drowning death rates. Drowning is the second leading cause of death for young children between the ages of 1 and 4. Most of these submersion deaths involve home swimming pools.
Across all ages, the accidental drowning rate for African Americans is higher than whites. African American children between the ages of 5 and 19 are more than 5 times more likely to drown in swimming pools compared to whites in the same age group.
Near Drowning Risks in California
Many adults can be at risk of nonfatal near-drowning injuries, including brain damage. In 2016, there were 758 reports of people who had near-drowning accidents in California. According to the California Department of Developmental Services, the majority of those accidents involved adults between the ages of 19 and 40 years old.10
Age Group (years old)
Near Drownings Events in California (2016)
0 to 4
5 to 10
11 to 18
19 to 30
31 to 40
41 to 50
51 to 60
61 to up
Your legal claims for a drowning injury or death in California will depend on the type of accident. Most accidents where someone drowns in California involve premises liability or negligence.
Premises liability refers to a property owner's duty to keep their property in a reasonably safe condition.11 The duty of care depends on the type of person on their property. In most cases, to establish premises liability, the plaintiff 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.12
In drowning accidents, a property owner may be liable if the defendant had an unprotected swimming pool. A property owner could also be liable if there were hidden wells or other water hazards on the property.
Example: Matthew is having a pool party at his home in Los Feliz. He props the side gate open so his friends can go around the side into the backyard. Matthew and his friends have a fun party and eventually everything winds down. Matthew decides to clean up in the morning and goes to bed.
The next morning, Matthew finds that a neighbor's child wandered into his backyard and fell into the pool and drowned. Matthew or his friends had forgotten to close the side gate after the party. Matthew may be liable to the child's family because he left access to his pool unprotected.
A claim of negligence 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 the harm or death.
With a drowning accident, negligence could involve
- negligent supervision of a child near a koi pond,
- no lifeguards on duty, or
- daycare providers leaving children alone in swimming pool.
Example: Clancy is an employee of Moped Childcare in Westlake. It is a hot day and Clancy lets the kids play in a kiddie pool in the backyard of the care center. The kids are splashing in the pool when Clancy hears the phone ring. Clancy runs in to get the phone.
Clancy notices one of the kids is laying face down in the kiddie pool. Clancy immediately calls 9-1-1 and begins CPR. The child survives with some injuries from the lack of oxygen.
Clancy may be liable for failing to watch the children when they were playing in the pool. However, Moped Childcare may also be vicariously liable for damages because Clancy was an employee of the company and acting in the course of the job.
Under California law, anyone who has a duty of care can be held liable if they were a cause of the drowning death or injury. For most drowning incidents involving swimming pools, the property owner or occupier may be liable for any negligence under premises liability.
Employees or businesses that are in charge of taking care of children may be liable for a drowning death if there was a failure in training, lack of supervision, or other negligence on behalf of the company or employees.
You may be liable if someone drowns in a swimming pool on your property in California. If your pool does not meet state pool safety requirements, you may be liable for any damages under premises liability and negligence laws.
Pool Safety Requirements
In most cases, before a building permit can be issued for a new swimming pool or remodeling of an existing pool at a private single-family home, a swimming pool has to be equipped with at least 2 of the following drowning prevention safety features:
- An enclosure that meets the requirements of Section 115923 and isolates the swimming pool or spa from the private single-family home.
- Removable mesh fencing that meets American Society for Testing and Materials (ASTM) Specifications F2286 standards in conjunction with a gate that is self-closing and self-latching and can accommodate a key lockable device.
- An approved safety pool cover, as defined in subdivision (d) of Section 115921.
- Exit alarms on the private single-family home's doors that provide direct access to the swimming pool or spa. The exit alarm may cause either an alarm noise or a verbal warning, such as a repeating notification that “the door to the pool is open.”
- A self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor on the private single-family home's doors providing direct access to the swimming pool or spa.
- An alarm that, when placed in a swimming pool or spa, will sound upon detection of accidental or unauthorized entrance into the water. The alarm shall meet and be independently certified to the ASTM Standard F2208 “Standard Safety Specification for Residential Pool Alarms,” which includes surface motion, pressure, sonar, laser, and infrared type alarms. A swimming protection alarm feature designed for individual use, including an alarm attached to a child that sounds when the child exceeds a certain distance or becomes submerged in water, is not a qualifying drowning prevention safety feature.
- Other means of protection, if the degree of protection afforded is equal to or greater than that afforded by any of the features set forth above and has been independently verified by an approved testing laboratory as meeting standards for those features established by the ASTM or the American Society of Mechanical Engineers (ASME).13
A pool safety enclosure requires gated access to the pool area, with a self-closing gate and self-latching device at a minimum of 60 inches above the ground. The enclosure must be at least 5 feet high, with a maximum clearance from the ground of 2 inches. Any gaps cannot be wide enough to allow a 4-inch diameter sphere to pass through. There can also be no outside surfaces that could allow a child under the age of 5 to climb over.14
A pool without any of the above safety measures could be seen as creating an unreasonable risk of harm. Property owners are aware, or should be aware, that children may not be able to appreciate the risks associated with unprotected pools. Any pool without safety precautions can present a risk of harm to kids, including neighborhood children.
Liability for a child drowning in a pool will depend on who, if anyone, was negligent. If a pool is not properly protected or does not have restricted access, the property owner or renter may be liable for an accidental drowning. If young children are left alone in a dangerous situation, like swimming without an adult present, whoever left the children alone may be considered negligent.
If a child drowns in a public pool, the owner or operator of the pool may be liable for damages. This may include the city or county. Public pools in California are required to operate under strict swimming pool safety requirements. If the pool does not follow the pool safety requirements, they may be negligently putting swimmers at risk.
When lifeguards are negligent or not performing their job, the pool operator may also be liable based upon vicarious liability or failure properly to train their staff.
Example: Cliff is a lifeguard at the Bonanza Public Pool. Cliff is in charge of watching over about 30 people swimming in the pool that day. Cliff notices Kika at the pool that day. Kika comes up to flirt with Cliff. Cliff and Kika are talking and making plans to go out to the movies that night.
Suddenly, Cliff notices people yelling in the pool. Cliff jumps off his chair and swims out to an unconscious child in the pool. Cliff pulls the child out of the water and performs CPR but the child dies from being submerged for too long.
If a jury determines that Cliff was being negligent because he was not paying attention to the swimmers, he may be held responsible for the pool accident. The pool operator or owner may also be held liable as Cliff's employer.
Drowning accidents at the beach in California can be caused by a number of reasons, including negligence. This could include people fighting in the water or swimmers impaired by the effects of alcohol. Anyone who is found to have negligently caused an accident may be held liable for the damages.
Example: Axel is surfing at Manhattan Beach. Axel is annoyed that some tourist on a bodyboard is getting in the way of his waves. After Axel narrowly avoids hitting the tourist on a wave, he figures he will teach the tourist a lesson by scaring him.
On the next wave, Axel aims for the tourist but gets too close and knocks him on the side of the head with his board. When Axel paddles back out, he notices the tourist is floating face-down in the water. Axel signals to the lifeguards who revive the tourist. The tourist is hospitalized for inhaling water but eventually makes a full recovery.
Even if Axel did not mean to hit the tourist in the head, his behavior could be considered reckless or “gross negligence.” Axel may be liable for the hospital bills related to the tourist's injuries.
Boating accidents in California can occur in lakes, rivers, reservoirs, bays, or out in the ocean. Falling overboard can result in drowning or other injuries.
Boating regulations require boat operators to carry certain safety equipment. If boating operators or owners do not have the required safety equipment on board or the equipment is faulty, they may be liable for accidents that cause injury or death.
Many boating accidents that result in drowning involve the influence of alcohol on the victim or boat pilot. If the boat operator is impaired by alcohol or drugs, they may be liable for any injuries they cause. Boating under the influence (BUI) is also a criminal offense in California.15
A property owner may be liable for injuries sustained on the property, including for drowning death or nonfatal drowning injuries. The types of damages available may depend on whether the victim was injured or died as a result of the accident.
In general, the injured party can sue for compensatory damages in a California drowning lawsuit. This includes:
- Medical bills,
- Physical and occupation therapy,
- Lost wages,
- Lost earning capacity,
- Loss of consortium of a spouse or registered domestic partner,16
- Scarring or permanent disfigurement, and
- Pain and suffering.
Loss of consortium is a loss of the companionship, moral support, and intimacy between a spouse or domestic partner. Damages for loss of consortium entitle the plaintiff to recover non-economic compensatory damages. These are damages to compensate for the loss of the spouse's or partner's companionship and regular relations.
In extreme cases, the injured person might even be entitled to punitive damages in California. However, to claim punitive damages, the plaintiff generally has to show extreme or outrageous conduct by the defendant. This could also include intentional actions by the defendant to injure the plaintiff.17
After a drowning death, the victim cannot seek justice in court. Many drowning accidents result in death, especially for young children. California's “wrongful death” laws allow families to recover damages when a loved one has died as the result of someone's wrongful act.18
Under a wrongful death lawsuit, 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.
A wrongful death lawsuit can be filed with a "survival" cause of action under California Code of Civil Procedure 377.30. A survival cause of action is brought on behalf of the victim's estate to compensate for losses suffered by the deceased victim from the wrongful act.19
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 California intestate succession laws.
A property owner's insurance policy may cover the property owner's liability for accidents on the property, including drowning accidents. However, the policy limits may not cover all of the damages associated with the injury or death.
Homeowners insurance or property insurance policies may or may not cover drowning accidents, depending on the policy and situation. This can be a complicated issue because many insurance companies do not want to pay out claims if they can find a way to avoid it. This may require court action to find the insurance company financially liable.
Many drowning accidents are just accidents and no one was to blame. Innocent homeowners may be sued if someone unfortunately drowns on their property. There are defenses available if you are sued for damages after someone drowns in your pool, including:
- Assumption of the risk
- No duty of care
- The victim was partly responsible
- Victim waived liability
“Assumption of the risk” in California shifts the liability for an injury to the person who engaged in an inherently risky activity. In a drowning accident lawsuit, assumption of the risk could involve showing that the victim voluntarily engaged in an activity with an inherent risk of drowning or water injury.
Example: Basil is a 20-year-old taking high diving classes at Jet's High Diving Pool in Fresno. Diving involves some inherent risks of injury, including possible drowning or hitting the diving board. Basil is on the 10-meter platform to do a backflip.
Basil does a half rotation and hits the water flat on his belly. The impact knocks the air out of Basil's lungs and he inhales water. Basil is taken to the hospital for possible pneumonia and water inhalation.
If Basil sues the owner of the pool, Jet, for his injuries, Jet could argue that Basil assumed the risk of an injury by taking the high diving classes. There is no indication Jet was grossly negligent, reckless, or intentionally injured Basil.
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:
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 if there is a dangerous nuisance on the property, such as an ungated swimming pool.
Example: Parker owns a house and is replacing the septic tank on his property. The septic tank opening is exposed in order to be emptied and removed. A burglar notices the hole in the ground and thinks the homeowner may be building a survival bunker. The burglar tries to get into the suspected bunker but falls into the septic tank and drowns.
If the burglar's spouse sues Parker for the burglar's death, Parker may be able to claim a defense that there was no duty owed to the trespasser. Even if there was a dangerous condition on his property, Parker had no duty to warn the trespasser about the danger.
Someone else, including the victim, may have been at least partially the cause of the accident. This could limit the property owner's liability in a drowning lawsuit. Under California's “comparative fault” law, if more than one party shares in the fault for the accident, the jury can apportion fault and damages.
Example: Daz brings his 5-year-old son to a pool party at Duncan's house. Duncan's pool gate does not have a self closing latch. When everyone moves into the house after it gets dark, Daz tells his son to go outside to grab him a beer from the cooler. When the child doesn't come back, Daz and Duncan go outside to see the child struggling in the pool. The child has near-drowning injuries and is taken to the hospital.
A jury finds that Duncan was 50% responsible for having an unsafe gate around the pool and Daz was 50% responsible for sending his son into the backyard unattended. If the boy's medical bills amount to $2,000, Duncan may be liable for $1,000 in damages for his portion of fault.
In most cases, a liability waiver is a legally enforceable contract. This includes signing a liability waiver that involves participation in a potentially dangerous activity, like:
- Scuba diving
- Jet skiing
Like “assumption of the risk,” a liability waiver generally protects the operator or owner from personal injury claims for ordinary negligence. However, a liability waiver may not protect the company from gross negligence, recklessness, illegal activities, or intentional harm.
Example: Jen and Rob go on a rafting trip on the South Fork of the American River. The rafting outfitter, Donner Expeditions, has Jen and Rob sign a waiver of liability. Jen and Rob don't really read the waiver but sign it anyway.
When preparing the life vests, an employee of Donner Expeditions realizes one vest doesn't have any floatation foam so he fills it with some styrofoam packing peanuts and staples it shut. Rob gets the non-conforming life vest and Jen gets a regular life vest.
While on the river, a rogue log hits the raft and flips it over. Jen cannot swim very well and gets water in her lungs before washing up on the shore. Rob is having trouble staying afloat with the bad life vest but manages to get to the shore with some near-drowning injuries.
If Jen and Rob sue Donner Expeditions for their injuries, the jury would have to decide Donner Expeditions' level of negligence. Jen may not be able to get any damages because falling out of the raft was an inherent risk or may not amount to more than simple negligence. However, doing a shoddy repair on Rob's vest may amount to recklessness or gross negligence. Rob may be able to recover damages for his injuries.
Under California contract law, a child is not generally able to enter into legally enforceable contracts.20 If a child (under the age of 18) signs a liability waiver, that waiver may not be enforceable. A parent or legal guardian is usually required to sign a liability waiver on behalf of their child.21
If you signed a valid liability waiver and your child was injured in a drowning accident, a jury would have to determine whether the accident was covered by the liability waiver / assumption of risk agreement. The waiver may apply to injuries caused by gross negligence, recklessness, illegal activities, or intentional harm.
Call us for help...
For questions about drowning lawsuits in California or to discuss your case confidentially with one of our skilled California personal injury attorneys, do not hesitate to contact us at Shouse Law Group. For cases in Nevada, please see our article on Nevada law as to drowning accident lawsuits.
We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- See, e.g., California Civil Jury Instructions ("CACI") 400. See also California Civil Code section 1714(a) (“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.”)
- Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967 (“Under the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment.”)
- Centers for Disease Control and Prevention (CDC), National Center for Injury Prevention and Control. Web-based Injury Statistics Query and Reporting System (WISQARS).
- Same. See also California Senate Bill SB-442 Public health: pools: drownings. (2017-2018).
- Neurologic long term outcome after drowning in children. Pertti K Suominen, Raisa Vähätalo. Scand J Trauma Resusc Emerg Med. 2012. 20:55. Published online 2012 Aug 15.
- 20 California Code of Regulations (CCR) § 65503. Public Swimming Pools. Scope.
- Consumer Product Safety Commission (CPSC). Submersions Related to Non-Pool and Non-Spa Products, 2012 Report.
- CDC. Home and Recreational Safety. Water-Related Injuries. Unintentional Drowning: Get the Facts at: https://www.cdc.gov/homeandrecreationalsafety/water-safety/waterinjuries-factsheet.html
- Department of Developmental Services. Client Development and Evaluation Report (CDER).
- California Civil Code section 1714(a)
- California Civil Jury Instructions (CACI) (2017) 1000. Premises Liability. Essential Factual Elements.
- Health and Safety Code Section 115922
- Health and Safety Code Section 115923
- Harbors & Navigation Code 655(f)
- California Family Code 297.5 gives registered domestic partners the same legal rights and remedies as spouses.
- California Civil Code § 3294
- California Code of Civil Procedure 377.60 (“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.”)
- Code of Civil Procedure 377.30
- California Family Code 6710 (“Except as otherwise provided by statute, a contract of a minor may be disaffirmed by the minor before majority or within a reasonable time afterwards or, in case of the minor's death within that period, by the minor's heirs or personal representative.”)
- Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559.