Articles Posted in Swimming Pool & Aquatic Injuries

 No Swimming.001During the past week, I have lectured and written on the issue of negligence, child injuries, and the unfortunate and tragic incident that took place at the Walt Disney World Resort – Orlando where a 2 year old child was attacked and ultimately drowned by an alligator.  It has been reported that there were “No Swimming” signs posted in or near the area.  Some people, who I have spoken to, believe that this fact should then be a bar to recovery if there is a claim or case pursued by the parents of the child who died.  Florida is a state that has adopted a Comparative Fault system for the pursuit and trial of personal injury cases.  In other words, even if an injury victim is comparatively or partially at fault, there can still be a case pursued on behalf of the injury victim and / or the injury victim’s family.   It should also be noted that there are some special laws in place in Florida when a child is injured.  For instance, in the State of Florida, a child under the age of 6 years old cannot be held liable, responsible, or partially at fault as a matter of law.  As such, a 2 year old cannot be comparatively at fault as a matter of law even though there were “No Swimming” signs that were posted.  However, a parent, as a third party of sorts, can be held liable, responsible, or partially at fault if the parent’s actions or inactions contributed in whole or part to the situation or incident taking place.
As for the Disney alligator attack, it has been reported that there were “No Swimming” signs posted.  The family of the 2 year old were from Nebraska and may not have been aware of the presence of alligators throughout the State of Florida in its rivers, lakes, canals, ponds, and lagoons.  Furthermore, the sign read “No Swimming”.   The reason for the posting of the sign could have included any of the following:
*There was no regular lifeguard in the area.

orlando-vector-doodle_GJ7pbFLO_LWalt Disney World Orlando advertises itself as one of the “Happiest Places on Earth”.  For millions of visitors every year, it is quite a happy and joyful place filled with rides, cartoon characters, and adventures; however, for many children and their families, Walt Disney World Orlando happens to be a placed filled with horrific memories, significant personal injuries, tragedy, and even the untimely and wrongful death of a visitor from children to teens to adults. Certainly, Walt Disney World Orlando welcomes children and families to its many theme parks, attractions, resorts, and hotels.  As such, it is important that Walt Disney World Orlando provide a safe and well maintained environment with the full knowledge that every day families and young children will be on the premises.   This duty extends to all areas of the park and resorts including but not limited to the attractions, rides, restaurants, hotels, lobby areas, swimming pool areas, recreation areas, and yes, the other aquatic areas whether man-made or natural in the form of lakes, ponds, canals, lagoons, and other areas.   It is incumbent upon Walt Disney World Orlando to patrol the areas, maintain the areas, clean up the areas, and post prominent signage about potential dangers that may include those related to electrical and wildlife.  If an area has the potential for significant injury or death, this particular area should either be closed off, modified, and / or posted with prominent signage.

A recent incident at Walt Disney World Orlando left a family and community in shock when an alligator from the Seven Seas Lagoon lunged out of the water and grabbed a 2 year old who was standing in or near the water with his father.  The boy, who was vacationing with his family from Nebraska, was attacked by the alligator.  While the father tried to do his best to stop the attack and save his son, he was unable to do so.  It was reported that there were signs in the area that advised visitors about the designation of a “No Swimming” area.  There may not have been any warnings or signage about the presence of dangerous wildlife including but not limited to alligators.  Certainly, this incident was and is a complete and utter nightmare for the family visiting the “Magic Kingdom” from Nebraska.  The incident was immediately reported to Walt Disney World Orlando officials, resort staff and management, local law enforcement, and Florida Wildlife Law Enforcement officers.  You can read more about this tragedy at KETV Omaha, Nebraska – Alligator Attacks and Drags 2 Year Old Nebraska Boy at Walt Disney World Orland Resort – Seven Seas Lagoon. 

The injury and / or wrongful of a child is a harrowing experience.  Certainly, as parents, we work day and night to provide for our children’s safety, health, and welfare.  When a child is injured or when a child dies as a result of the negligence of another person, business entity, or government entity, a parent is faced with a number of life, medical, and legal challenges. Certainly, it is important that these trying times to be supported by family members, friends, community, medical professionals, clergy, community, and, yes, when necessary an experienced and caring Florida Child Injury Lawyer.  Big businesses are supported day / night by in-house and retained legal counsel essentially on a 24 / 7 basis. There are risk management and insurance risk management adjuster in place to advise and protect the companies.  As such, injury victims and their families also deserve legal representation to make that legal rights are protected, enforced, and preserved as needed especially in the aftermath of significant personal injuries and /or wrongful death.

Swimming Pool - Drowning and Personal Injuries
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:

vibrant swimming pool side with ladder

Swimming Pool Drowning

Disney and other theme parks are magical.  For some, they are a place where dreams come true.  For others, they are a place that sadly are a reminder of a horrible tragedy in the form of a death or a serious personal injury of a child.   It was recently reported that a 3 year old child drowned at the Disney World – Art of Animation Resort located in Kissimmee (Orlando), Florida.  It was reported that the 3 year old child was found in the pool at approximately 8:00 p.m.  The child was found underwater.   The child was then taken to a local hospital where the child was pronounced dead.   What a terrible ordeal for all involved.

There are a number of legal and safety issues involved with an incident that takes place at Disney World and other theme parks.   First, it is well known that Disney and other theme parks cater to children and families.  The marketing dollars and attractions are geared to attracting children and their families to visit the park and, yes, spend money.  Disney and other theme parks have a business to run and there is nothing wrong with that; however, with the operation of any business, there is a responsibility to maintain the property and common areas in a reasonably safe condition.  Can all incidents leading to injury be prevented?  The answer is certainly no.  However, Disney, theme parks, and hotels have a duty to maintain the premises in a reasonably safe condition taking into consideration the needs, abilities, and disabilities of the guests including but not limited to children, toddlers, and infants.   Toddlers are unique guests.   They can walk and tend to wander and explore.   It is well known with toddlers that they lack good safety awareness and often fail to follow instructions.  In the State of Florida, the disabilities and poor judgment of toddlers and other young children are built into the law.  A child under the age of 6 years old in the State of Florida can be held liable for comparatively at fault for his or her actions.   However, this does not absolve a parent or other family member of the responsibility to supervise and monitor the child.

close-up of colorful rubber ducks at the pool side (shallow depth of field)

Swimming Pool Drowning      Risks to Children

Even though the risks are well known or should be well known to all adults, some how children including but not limited to toddlers drown every year at private pools, community pools, day care centers, and water parks.  Even one child, who drowns as a result of a preventable incident, is one child too many.  There are many reasons out there for this ongoing problem during the summer months and other times of the year.  It is important to spot the problems and put preventative measures in place to prevent any further drowning incidents.

Supervision

gorgeous swimming pool side with colorful water mattress

Swimming Pool Drowings

Children are at risk for drowning incidents any time that children are near or in a swimming pool area or similar area like a lake, pond, water park, etc. . . .  As for residential swimming pools, it is important that pool owner and supervising adults keep a swimming pool out of the reach of children.  Certainly, a swimming pool owner, child care provider, and others watching child should following the applicable state and local laws; however, merely following the law will not prevent some incidents from happening.  There really is not substitute for common sense, supervision, or due diligence.

Florida enacted Chapter 515 – Residential Swimming Pool Safety Act as a measure to protect children. Pursuant to Section 515.29, Florida Statutes, a residential pool owner must comply with the following requirements:

Swimming Pool - Water Slide - Injury - Drowning
During the summer months, children enjoy the time off from school and the opportunity to splash around at the community pool, a neighbor’s pool, a water park, or theme park.  Most public areas are well maintained and inspected frequently.  Most are staffed with trained lifeguards and maintenance personnel to provide for a safe aquatic environment for children. Unfortunately for some children Unfortunately for some children during the summer months, a swimming pool, water park, or theme park is the site for a serious personal injury.  Some incidents even result in the untimely and tragic death of a child as a result of a drowning or a traumatic injury.
Is a water park, theme park or property owner of a swimming pool liable or responsible for injuries that take place on the premises? The answer to this question like many other depends the particular facts and circumstances of the incident leading to the serious personal injuries or death of the child. There are four elements that are required to be proved to establish a case against a swimming pool owner, theme park, or water park.
1. Duty;

vibrant swimming pool side with ladder

Swimming Safety Measures

During the summer months in Florida and other States, children enjoy the free time and water related activities like swimming in the pool of summer camp, school, day care center, community center, friend, or neighbor.  Splashing around and playing with friends to beat the summer heat can be great fun.  Unfortunately for some children and families, these very same swimming pools can be the site of the serious personal injury or death of a child due to a drowning incident.  Approximately 1000 children per year the United States drown.  Another alarming statistic is that over 5000 children suffer personal injuries each year as a result of near drowning related incidents.  While drowning does not discriminate by age or anything else, it is clear that it is the youngest children in the community who are at greatest risks.  Drowning is reported as the leading cause of death for children between the ages of 1 and 4 years old.  Many drowning related incidents and near drowning related incidents can be avoided through better and more attentive adult supervision during swim time.  Furthermore, any time that a child is near a body of water whether it is a swimming pool, wading pool, lake, river, ocean, water park, etc . . . – measures should be taken to supervise children so that they do not wander off and go play in the water or aquatic related area without proper adult supervision and related safety measures.

For summer camps, day care centers, schools, and other child care providers, written rules and policies should be posted, distributed, and followed for all child care personnel.  There should be trained lifeguards in place.  In addition, personnel should be trained in CPR and other safety measures.  Whether swimming activities are taking place at a school, day care center, camp, or even a neighbor’s house, here are some safety measures that should always be kept in mind:

swimming%20pool%20tiled%20bottom.jpgIn Florida and other States, parents rely on day care centers to provide for the safety and early education of their children. The presence of swimming pool can be a wonderful benefit for the children enrolled in the day care center. Activities can be organized in and around the pool. The swimming pool can be a source of great fun but it can also be a source of risk and danger for the children. Because of this, it is vital that a day care center have written rules and policies for swim related activities and safety in and around the pool. Small children often have poor safety judgment. This is especially true in and around swimming pools. When there is a lack of safety precautions and / or supervision, a child can easily slip away and end up helpless in a swimming pool.

Day care centers should not leave things to chance. A pool barrier should be erected and secure. Furthermore, all exit doors to swimming pool areas should be secure and when available should have door alarms in place. Make sure that the pool barriers are frequently inspected and maintained by professionals. A parent with a child enrolled in a day care center with a swimming pool should ask to review the policies and get a walk through of the swimming pool area and safety precautions.

The owner of a day care center should follow all State and local rules and regulations for day care centers and swimming pools. Documentation should be in place and all staff members should be duly trained in aquatic safety and CPR. If these suggestions are too onerous for a day care center, then the owners of the day care center should consider closing down the pool before a tragedy takes place. It is better for a day care center to be prepared than for a day care center to make headlines that a child drowned while under the supervision and watch of a day care center.

Swimming%20pond%20lake%20infection%20bacteria%20disease%20chid%20injury.jpgIn Florida, children are at risk for drowning related injuries and death in most every community. There are lakes, canals, retention ponds, rivers, and other bodies of water in virtually every community throughout the State of Florida. It is impractical and costs prohibitive to fence and post signs in and around every body of water in Florida. While it is unrealistic to fence all of these areas, there still may be liability for a property owner, homeowner’s association, business, theme park, amusement park, or other entity when a child dies if there is a lack of warning signs and / or fencing around the body of water.

As noted in Longmore v. Saga Bay Property Owners Association, 868 So.2d 1268 (Fla. 3rd D.C.A. 2004), “there is no liability for a child’s drowning in a body of water, natural or artificial, unless there is some unusual danger not generally existing in similar bodies of water or the water contains a dangerous condition constituting a trap.” The Third District Court of Appeal in the Longmore case affirmed the dismissal of wrongful case filed by the parents of child who drowned in the lake owned, controlled, and / or maintained by the property association. The Court in Longmore did cite some cases or examples in which a body of water or an area would be considered a trap as follows:

*Starling v. Saha, 451 So.2d 516 (Fla. 5th D.C.A. 1984) – Child drowned when the child was swimming in a pond and got caught by an intake hose of a drainage pump that had been left operating without supervision.