Articles Tagged with drowning

Swimming-Pool-Safety-150x150During the spring and summer months, there is an increase in the number of reported drownings and near drownings throughout the United States.  For many warm weather States like California, Texas, and Florida, there are risks of drowning just about year round due to the climate and the abundance of swimming pools, water parks, canals, rivers, and other water ways. Tragically, Texas holds the distinction for being the number one State for child pool drownings.  Children can be especially at risk for drowning when there is a lack of adult supervision.  Certainly, adult supervision should be provided any time that a child is in or near a swimming pool or other accessible swimming area or water way.
While it is difficult to believe or understand, many child drownings and near drownings take place when there are a number of adults in or near the swimming pool area.  How can this happen? How can a child drown with adults just feet away from the swimming pool area?  A drowning can take place in a swimming pool when the adults in the area are otherwise occupied in the acts of talking, eating, drinking, sleeping, surfing (the internet), texting, web browsing, watching a sporting event, or simply talking on a mobile phone.  The presence of adults in or near a swimming pool area is not the same as watchful and attention adult supervision.  As such, it is important to make sure that adult supervision is in place any time that a child is in or near a swimming pool.
Certainly, if a school, summer camp, or day care center is in session and swimming is a current activity – there should be designated and trained staff members in place to watch over the children and to place safety above all other concerns and distractions.  A swimming pool or swimming area is not a good place for multi-tasking.  As such, a person should not have a mobile device in hand and in use while assigned or engaged in the act of supervising children in or near a swimming pool area.

Florida Pool.001In Florida, it is common to see swimming pools in most neighborhood.  It is somewhat of a luxury to have a swimming pool right there in the back yard.  Swimming pools can add to the aesthetics of the house and surrounding.  Swimming pools can also provide for a great deal of fun and relaxation for adults and children alike.  Unfortunate and tragically, swimming pools are also the site of horrible tragedies that despite laws, common sense, and the general knowledge of other similar tragedies continue to take place.  It has been reported that Florida leads the nations in drowning for children under the age of 5 years old.  Florida has ranked second in drownings the age group of 1 to 14 years old.  Florida’s weather allows for swimming almost year round.  During Spring and Summer months, it is tragically predictable that additional drownings of small children will take place.
Florida has adopted a swimming pool act that applies to all homeowners with a swimming pool.  There must be a barrier that is at least 4 feet high on the outside.  There should not be any gaps, openings, or structural components that would allow a child to crawl or squeeze through the barrier or enclosure.  You can read more about these regulations at Section 515.29, Florida Statutes – Residential Swimming Pool Barrier Requirements.
Can a homeowner be held liable or responsible with a child neighbor or child visitor drowns in the swimming pool in Florida?  The answer to this question like most legal question is “It depends.”  If the homeowner failed to follow the Florida Residential Swimming Pool Act and these violations were the proximate cause of the drowning – then the homeowner may be held liable or responsible for the drowning.

blue and vibrant swimming poolside

In the State of Florida and across the nation, one of the leading causes of death for small children, and especially toddlers, is drowning. In Florida, there are private residential swimming pools, public swimming pools, and hotel/motel/resort swimming pools in just about every community. It is important for property owners, business owners, home owners, and government entity to properly safeguard the swimming pool and aquatic area for the protection of children. It is well known and expected that a child, especially one of tender years, under the age of 5 years old, to be curious and inquisitive about interesting areas and what is deemed under Florida Law to be an “attractive nuisance.”

Unfortunately and tragically, there are reports of drowning incidents every summer, spring and the rest of the year in Florida. Many such incidents are preventable with the proper implementation and maintenance of swimming pool fences and barriers, swimming pool alarms, proper adult supervision, proper lifesaving equipment, and the posting of trained and attentive life guards when appropriate. When a child suffers personal injury or dies as a result of a drowning incident there may be a case or claim to pursue on behalf of the child and the family. To establish a legal claim r case, there must be proof and evidence of the following four elements:

1. Duty;

 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.

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:

Boat Wheel - Personal InjuryIn States like Florida, California, Georgia, Hawaii, and Texas among others, boating is a year round activity.  The warm weather and abundance of waterways and surrounding lakes, rivers, ponds, canals, and oceans provide a welcoming enviornment for those seeking to boat, fish, swim, water ski, and otherwise enjoy the day.   While boating can be great fun, it can also be dangerous for teens and children especially those who are not properly supervised and / or do not understand or follow basic safety measures.   There are just too many risks associated with boating to hand over the full responsibility to a teen or child.  Adult supervision is key to preventing injuries including those related to drowning or near drowning incidents.  This is especially true when there is bad weather, rough waters, or other conditions that lead to a capsizing incident.   It takes a certainly maturity, strength, and experience to properly react when there is an emergency.  Because of this, it makes it even more important to have adult supervision during any boating activity.  A teen or child may be a champion boater or swimmer.  Even for these talented and strong individuals, a U.S. Coast Guard approved life jacket should be worn at all times during boating related activities.  It may not be cool or comfortable to wear a life jacket but this one basic safety precaution can and does save lives.
Even with adult supervision, education is key to prevent injuries and drowning incidents for teens and children.  The captain / owner of the boat should carefully explain the rules and safety precautions to be followed while on the boat.   If a child is going to regularly be a guest on a boat, it may make sense for the child to attend a boating course. Of course, being able to swim is important as well.  If a child or teen is going out on a boat, it is better if the child or teen can swim.  If not, extra care should be taken to the extent possible to watch over and supervise the child while engaged in boating related activities.
If a child or teen is injured or drowns during boating related activities, is the boat owner liable for such injuries or the death of the child?  Well, like most legal issues, it will depend on the particular facts and circumstances of the incident.  Let’s take an example.   Let’s say a 12 year old friend of the boat owner’s son goes out on the boat for a day of fishing.   The boat owner allows his son to take out the boat.  There is no adult supervision in place.   The boat owner does not contact the parents of the 12 year old for permission to have the child out on the boat.  The boat is not equipped with life jackets.  The two boys go out for a leisurely day of fishing.   Rough weather ended up capsizing the small boat and the 12 year old drowned.   The boat owner’s son was later rescued by the Coast Guard.  Had the 12 year old been wearing a life jacket, the drowning would most likely have been avoided.  Under these facts, there can be a claim or case on behalf of the estate of the deceased child due to the negligence of the boat owner. It should be noted that each case or incident should be evaluated on its own facts and merits.  Let’s take another example.  A 17 year old boy is invited as a guest on a neighbor’s boat with the permission of his parents.   While on the boat, the 17 year old got drunk with alcohol he brought with him from his own house.  While horsing around on the boat, the 17 year old slips off the boat.  Just prior to falling off the boat, he was wearing a life jacket but decided it would be cooler to go without the life jacket.  The boat owner was on the boat at the time and otherwise providing reasonable supervision of the 17 year old and the other teens on the boat.  Under this fact pattern, it may be difficult to pursue a case on the theory that the boat owner was negligent in some manner.  The 17 year old hid the alcohol by pouring it into a soda bottle.  Furthermore, the 17 year old disobeyed clear instructions to keep his life jacket on and to otherwise behalf while on the boat.  Of course, more facts will need to be determined to better analyze the potential liability (if any) of a case or claim of this nature. It should be noted that in the State of Florida – a child under the age of 6 years old cannot be held to be comparatively at fault in any manner.  As such, any child 6 years of age or older can be held comparatively at fault.  Seeing that the actions of a 17 year old are being considered, it is quite possible that 100 % or nearly 100 % of fault may be assessed against the 17 year old.

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:

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: