Drowning Accident Lawsuit - How to Bring a Legal Claim

Updated


A drowning lawsuit involves victims or families suing the at-fault parties. These may include inattentive property owners and supervisors. Common legal claims are negligence and wrongful death.

Depending on the case, plaintiffs in drowning lawsuits may be reimbursed for medical bills, lost wages, and pain and suffering. And if the victim dies, his/her family may also recover funeral expenses and loss of support.

Below, our California personal injury lawyers discuss:

boy under water with hands breaking the surface, which could lead to a drowning and lawsuit
Children between the ages of 1 and 4 years old have the highest drowning death rates.

1. Who is liable for drowning accidents?

For drownings in private pools (such as backyard pools), the property owner or renter may be liable. This is especially true if the owner did not abide by the state's safety requirements. In California for example, 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, for example, employers can be "vicariously liable" for the negligence of their employees.2 The staff - including lifeguards - could also be sued. But staff usually do not have the deep pockets that owners have.

(Learn more about swimming pool injury lawsuits, waterslide and waterpark injury lawsuits, and lifeguard negligence lawsuits.)

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. (Learn more about boating under the influence (BUI) and lawsuit for injuries stemming from the boating accident.)

Whenever a child drowns, the adults tasked with looking after him/her could be sued. It makes no difference if the drowning occurred in a beach, lake, or a bathtub.

2. Who sues if the victim dies?

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;
  • Children;
  • 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 his/her behalf. This may include the victim's spouse, closest of kin, or other legal representative the victim previously appointed.

3. What are the legal claims for a drowning accident?

3.1. Negligence

A negligence claim 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 include:

  • Lack of supervision of children near a koi pond,
  • No lifeguards on duty, or
  • Daycare providers leaving children 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:

  1. The defendant owned, occupied, or controlled the property;
  2. The defendant was negligent in the use or maintenance of the property;
  3. The plaintiff was harmed;
  4. The defendant's negligence was a substantial factor in causing the plaintiff's harm.5

In drowning accidents, a property owner may be liable if he/she had an unprotected swimming pool. A property owner could also be liable if there were hidden wells or other water hazards on the property.

3.3. Wrongful death

After a drowning fatality, the victim's family may bring a wrongful death claim. The family would need to prove:

  1. The victim ("decedent") died;
  2. The defendant caused the death by negligence or intent to harm;
  3. Family members are suffering a monetary injury from the death, and;
  4. A personal representative is appointed to the decedent's estate.

In California, a wrongful death lawsuit can be filed with a "survival" cause of action. This is brought on behalf of the victim's estate. It is mean to compensate for losses suffered by the decedent.6

4. What money damages can plaintiffs win?

Drowning lawsuit victims who sue for negligence may recover compensatory damages. This includes:

  • Medical bills,
  • Counseling,
  • Physical and occupation therapy,
  • Lost wages,
  • Lost earning capacity,
  • Loss of consortium of a spouse or registered domestic partner,7
  • 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, the court may also award punitive damages. But the plaintiff generally has to show extreme or outrageous conduct by the defendant.8

5. What if there was a liability waiver?

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. An attorney can help the victim determine whether the waiver holds or how to fight it.

6. Does homeowners or property insurance cover drowning accidents?

Possibly. It depends on the policy terms and limits. Insurance companies often refuse to honor their policies. But victims' attorneys can always take them to court.

7. How do defendants fight back against drowning lawsuits?

Many drowning accidents are just accidents with no one to blame. Potential defenses include:

  1. Assumption of the risk,
  2. No duty of care,
  3. The victim was partly responsible, or
  4. The victim waived liability

7.1. Assumption of the Risk

Assumption of the risk shifts injury liability to the victim. In a drowning accident lawsuit, 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. 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:

  • Invitees (such as handymen)
  • Licensees (such as friends)
  • Trespassers (such as burglars)

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. A classic example is an ungated swimming pool.

7.3. The victim was partially responsible

More than one party may be at fault for the drowning. Sometimes the victim him/herself shares blame. But even then, property owners may still be legally responsible.

For example under California's “comparative fault” law, juries can apportion blame and damages to the various at-fault parties.

7.4. The victim waived liability

Liability waivers may be required to:

  • Swim
  • Raft
  • Scuba dive
  • Surf
  • Boat
  • Jetski

These waivers are usually enforceable contracts. But 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.

8. How common are drowning accidents?

Nearly 10 people drown every day in the U.S. One out of five drowning deaths involve 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. And it can occur anywhere, including ponds, reservoirs, or hot tubs. Young children can suffocate in only two inches of water.12

Not all drowning victims die. Many who live are left with permanent disabilities. Lack of oxygen to the brain can cause:

  • Learning disabilities
  • A permanent vegetative state
  • Memory problems
  • Loss of basic functioning
  • Seizures
  • Traumatic brain injury
  • Paralysis13
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Call our drowning lawsuit attorneys at (877) 504-7750. We offer free consultations.

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Our California personal injury attorneys offer free consultations. Call us at 877-504-7750. Or fill out the form on this page.

In Colorado? Learn about filing a drowning lawsuit.

In Nevada? Learn about filing a drowning lawsuit.

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.


Legal References:

  1. Health and Safety Code Section 115922.
  2. Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.
  3. California Code of Civil Procedure 377.60.
  4. California Civil Code section 1714(a).
  5. California Civil Jury Instructions (CACI) (2017) 1000. Premises Liability. Essential Factual Elements.
  6. Code of Civil Procedure 377.30.
  7. California Family Code 297.5 gives registered domestic partners the same legal rights and remedies as spouses.
  8. California Civil Code § 3294.
  9. California Family Code 6710; Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559 (1990).
  10. Centers for Disease Control and Prevention (CDC), National Center for Injury Prevention and Control. Web-based Injury Statistics Query and Reporting System (WISQARS).
  11. CDC. Home and Recreational Safety. Water-Related Injuries. Unintentional Drowning: Get the Facts.
  12. Consumer Product Safety Commission (CPSC). Submersions Related to Non-Pool and Non-Spa Products, 2012 Report.
  13. 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.

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