Drowning can happen quickly. It only takes between 30 seconds and two minutes for a child to drown, making drowning the leading cause of injury-related death in kids. The sad reality is that these tragic accidents are largely preventable and are often the result of negligent behavior on the part of a pool manager or owner.
If you’ve lost a child or loved one in a drowning tragedy, you may be considering filing suit. Nebraska law entitles victims and their families to seek compensation for damages in civil court if the injuries were the result of negligence or intentionally harmful conduct.
Hire an experienced Omaha wrongful death attorney at Berry Law to represent your interests in court. They have the expertise to handle your wrongful death suit with dignity and compassion.
Swimming Pool Drowning Statistics
Drowning accidents can be life-altering and devastating for the families they impact. Swimming pool-related injury and death happen at neighborhood public pools, hotels, water parks, apartment complexes, and private residences.
According to the Centers for Disease Control & Prevention (CDC), more than 3,500 drownings occur annually, accounting for approximately 10 deaths across the United States each day.
Children under the age of four are at the highest risk for death by drowning. The Consumer Products Safety Commission (CPSC) reports that 150 children in the U.S. die between Memorial Day and Labor Day each summer, with more than 60 percent of fatal drownings in children under four taking place in swimming pools.
What Obligation do Property Owners Have When It Comes to Swimming Pools?
As is the case with any premises liability issue, a property owner is responsible for creating a safe environment for invited guests, including ensuring that their swimming pool is legally compliant with all safety regulations.
Failure to do so can result in a homeowner being found negligent for drowning-related injuries or deaths that occur on their private property. They can potentially be held liable in a personal injury or wrongful death claim.
How Can I Recover Damages for Myself or My Loved One if They’ve Been Injured or Died?
In order to recover damages in a drowning accident, a victim or his or her family must be able to prove that the property owner’s negligence caused the accident. Some reasons that a homeowner may be found negligent for a swimming-related injury or death include:
Defective Equipment or Improper Maintenance
Failure to properly inspect or maintain diving boards, slides, steps, ladders, drains, pumps or filters can result in injury or death to swimmers. Regular maintenance, along with repairing or replacing broken equipment can prevent accidents and protect a pool owner from liability.
Lack of Supervision
The absence of lifeguards or other responsible adults monitoring a pool increases the risk of accidental drowning and death, especially for children. Children should never be left unsupervised in a swimming pool.
Inadequate Safety Measures
Barriers like fences, gates, latches and locks are important safety features where a swimming pool is concerned. Without them, it’s possible for uninvited swimmers, including children, to gain access to a pool and accidentally drown.
Lack of Warning Signs
Another safety tool that pool owners should employ is the use of warning signs alerting swimmers to the dangers of trespassing, delineating the deep end of the pool, and warning of the lack of depth required to dive safely. A lack of warning signs can be used as evidence if a personal injury suit goes to court.
Inadequate Life-Saving Equipment
Rings, buoys, and other flotation devices should be available and easily accessible in case of an emergency.
Unsafe Walking Surfaces
Cracked or slippery tiles and concrete surrounding a pool can lead to slip and fall accidents that result in any number of injuries, including but not limited to head injuries or even accidental drowning.
Overcrowding
An issue most often occurring in public pools, overcrowding can make it difficult for lifeguards to recognize struggling swimmers and provide help in a timely matter. Most public pools have a capacity limit for this reason.
Dangerous Drains or Chemicals
Certain models of drains that were installed in older pools may pose an entrapment risk if a child gets his or her hand, foot, or hair caught in the drain, trapping them underwater. The use of pool chemicals requires a high level of skill to ensure that they don’t cause respiratory or skin injury, which are other common injuries associated with swimming pools.
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What Is the Attractive Nuisance Doctrine?
While most premises liability laws exempt homeowners of responsibility if someone is injured while trespassing on their private property, swimming pools fall under what’s known as the Attractive Nuisance Doctrine. When it comes to young children, the law recognizes that they don’t have the same understanding of property lines, barriers, and danger as adults do.
The Attractive Nuisance Doctrine includes any dangerous object or condition that might entice a small child, drawing them on to the property and posing a risk to their safety. Examples can sometimes include trampolines, large piles of dirt and sand, construction sites, and swimming pools. This doctrine requires property owners in Nebraska to treat trespassing kids the same as an invited guest.
Attractive nuisances must be fenced in, removed or locked up. As a result, swimming pool owners must take steps to ensure that young children attracted to their pool don’t drown by exercising reasonable care to eliminate potential dangers and provide adequate warnings. For instance, pool owners should:
- Share information with neighborhood parents about their pool and what steps have been taken to secure it from children
- Build a fence around the pool that meets local and state safety regulations
- Ensure that all locks on gates and fences work properly
- Install floodlights and alarm systems around the pool
- Avoid leaving pool toys and flotation devices in the pool when it’s not being used to prevent a child from reaching for an object and falling in
- Make water rescue equipment available and easily accessible in the event of an emergency
If the necessary steps aren’t taken and a child drowns as a result, a wrongful death suit can potentially be brought against the homeowner.
How does Nebraska’s Comparative Negligence System Work?
For teenagers and adults involved in swimming-related lawsuits, the courts will assess the extent to which the plaintiff caused his or her own injuries by applying the legal doctrine of comparative negligence.
Also known as comparative fault, comparative negligence is a shared liability system. Under comparative negligence, a defendant is assigned a percentage of fault by the court, who also assigns a percentage of fault to the plaintiff. The court then reduces damages awarded to the plaintiff by his or her percentage of fault.
An invited adult guest who had a few drinks before slipping and falling on a swimming pool sidewalk may be assigned 15% fault for their injuries, in which case they would only be able to recover 85% of any damages awarded.
Nebraska follows a modified comparative fault rule with a 51% threshold. This means that plaintiffs who are found to be 51% or more at fault for their own injuries can’t collect any damages at all.
For example, an adult who dove head-first into a private swimming pool despite no diving warning signs or who trespassed and suffered an injury or died as a result of a swimming pool accident may not be able to recover damages.
What Should I Do Next?
If you are considering filing a wrongful death lawsuit due to a drowning, you should be aware of Nebraska’s statute of limitations and file suit before it expires. Nebraska Revised Statute § 30-810 addresses the statute of limitations for wrongful death suits in the state, which must be filed within two years from the date of the victim’s death.
Collecting evidence that can be used in court to demonstrate a homeowner’s negligence can bolster a personal injury or wrongful death case. This includes photos of the inside and outside of the pool and surrounding areas, making particular note of fences, gates, locks, and posted signs.
Physical evidence like defective products and other items that may have been factors in causing the accident should be collected or at least described fully to the attorney handling your case. You will also need to document the injuries suffered by the victim as the drowning occurred, which can typically be found in medical records, as well as include an explanation as to why you believe the homeowner (or business if it is a commercial entity) was at fault.
Contact an Attorney at Berry Law
A premises liability attorney can help you gather the necessary evidence to build a case and will handle the details of investigating what happened. While no amount of money can bring your child or loved one back or restore their physical health, you may be able to recover medical and rehabilitation costs associated with a swimming pool accident or death, including physical therapy, assistive devices, and assistive technology.
You may also be able to sue for future medical costs if the accident resulted in permanent disability requiring lifelong nursing care, as well as receive compensation for wages lost while caring for an injured child or for lost future wages if your injuries prevent you from continuing in your chosen occupation. Some courts award non-economic damages related to pain and suffering from the loss of a child and funeral and burial costs as well.
Contact the team at Berry Law for a free consultation to discuss filing a wrongful death suit stemming from a swimming poool accident.
