What are the Legal Rights of a Child and Child’s Family Following a Drowning Incident in the State of Florida?

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;
  2. Breach of Duty;
  3. Causation; and
  4. Damages.

Certainly, any time a child suffers serious personal injuries or dies, the element of damages can be established. However, all four elements must be proved by a ponderence of the evidence. In the State of Florida, a child under the age of six (6) years old cannot be negligent as a matter of law. As such, a swimming pool owner cannot blame a four year old for his or her conduct. A child six years old or older can be held comparatively at fault for an incident. The child’s conduct is evaluated based on age, experience, education, maturity, and other factors.

When children are in or near a pool area, adult supervision is key. It is important to distinguish the difference between adult supervision and the mere presence of adults in the same or nearby area. Let's say that there is an adult sitting poolside. This particular adult has headphones on and is watching a movie on Netflix. Another adult is in the pool area taking a nap. The presence of these two particular adults does not amount to adult supervision.

There are also practical considerations when evaluating a claim or case involving a drowning incident. One such issue may involve the availability and amount of applicable home owner’s insurance or commercial liability insurance. Each drowning or aquatic related incident should be evaluated based on its own facts and merits. The family of an injured child should seek out guidance, advice, and legal representation from a Florida Child Injury Lawyer to protect and enforce the rights of the injured child.

David Wolf is an author, attorney and child safety advocate. He has written over 3,500 articles focusing on child injury and child safety matters. He is the author of the book titled The ABCs of Child Injury, The Legal Rights of the Injured Child, What Every Parent Should Know. This book has chapters on Swimming and Aquatic Injuries, Amusement and Theme park Injuries, and other topics. You can get this book for free at The ABC of Child Injury.