In Florida, swimming, boating, and aquatic activities are essentially year round activities. This is especially true during the spring and summer seasons. According to the Center for Disease Control and Prevention, 10 people die every day from drowning related incidents. Children under the age of 14 account for 2 out of the 10 deaths. It is reported that drowning is the 5th leading cause of unintentional deaths in the United States.
Despite these risks and disturbing statistics, drowning incidents continue and unfortunately will continue through the rest of the 2016 year including the summer season. Can a case or claim be pursued on behalf of an injured child OR on behalf of the parents of a child who dies as a result of a drowning incident? Like many legal questions, it depends on the facts and circumstances. It also depends on the practicalities associated with liability insurance coverage and other matters.
Like other personal injury cases in the State of Florida, there are four essential elements associated with a drowning case:
1. Duty. There must be a duty on the part of the defendant to act in a reasonable manner. For instance, if a hotel provides a lifeguard, that particular lifeguard must pay attention to the guests and swimmers. It should be noted that there is no duty per se to provide lifeguards at hotel pools. Regardless, a hotel should take measures to make sure that toddlers and small children do not wander into a pool area and make sure that all equipment is properly maintained and installed according to the applicable building codes.
2. Breach of Duty. If a duty is owed to the child or adult swimmer, the next element is the breach of the duty. However, it should be noted that the elements of Duty and Breach of Duty are two of the four elements required. The other two elements of Causation and Damages must be established as well.
3. Causation. This is the link between the Breach of Duty and fourth element Damages. There must be a proximate cause or related cause between the Breach of Duty and the harm caused or the drowning. For instance, let’s say there was a duty to maintain a proper chemical balance in the pool. The chemicals balance was not maintained and the pool was a bit discolored. While a child was swimming, he hit his head on the side of the pool and drowned. The slightly discolored water was not the cause or proximate cause of the child’s death. The incident happened in a matter of seconds and the lifeguard quickly pulled the child out of the water. Under this fact pattern, there was a Breach of Duty but this particular Breach of Duty was not the cause of the child’s death.
4. Damages. This refers to the harm caused or the injuries suffered by the child or adult swimmer. If a child scratched his or her finger on the rough edge of a pool, this may not be enough in the ways of damages or harm to justify a claim or a lawsuit. Let’s just say that a band aid was applied after the swim and the finger was much better by the next day. There was no need for any formal medical care. While there may be a technical case by the establishment of the four elements, the damages would not be enough from a practical matter for most attorneys to justify the time and expense with such a case.
Certainly, serious injuries and / or death that result from a drowning incident warrant the review of a Florida Personal Injury Attorney to determine the legal rights of the victim and the victim’s family. An experienced attorney will evaluate the location of the incident, the owner of the property, the foreseeability of such an incident, and the preventability of such an incident.
David A. Wolf has over 25 years of experience in representing children, teens, adults, and seniors in a wide variety of personal injury cases. He is the author of a five books including the book titled The ABCs of Child Injury – Legal Rights of the Injured Child – What Every Parent Should Know and the book titled When a Parent’s World Goes From Full to Empty – The Wrongful Death of a Child – What You Need to Know About The Florida Wrongful Death Act. You can get a free book at The ABCs of Child Injury and When a Parent’s World Goes From Full to Empty.