Claims and Defenses in Hillsborough County Swimming Pool Drowning Matters
Unintentional drowning is the leading cause of death for children under 4, and in 2017, there were more of these incidents in Florida than any other state. These children are so small that, after just a few moments under the water, their oxygen-starved brains begin shutting down vital organs.
Other serious swimming pool injuries include chemical poisoning and bacterial infections. Swimming pool owners use hazardous substances, like chlorine, to clean their pools. If they put too much in, swimmers may sustain chemical burns. Too little cleaning solution, and dangerous bacteria grows and thrives.
Damages in swimming pool injury cases usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Some common legal strategies in these claims are outlined below.
Your Claim for Damages
In Florida, property owners generally have a duty to keep their property reasonably safe for invitees. “Invitees” are people who accepted the landowner’s direct or indirect invitation to visit, and who benefit the owner in some financial or other way. Swimmers at apartment pool or homeowners’ association pools are clearly invitees, because they paid money to swim there. Swimmers at backyard pool parties are probably invitees as well. The owners benefit from the social interaction.
Additionally, if the victim was an invitee, owners have a duty to frequently inspect the property and make sure it is safe.
Even if a child snuck into a public pool or otherwise swam there without permission, the same duty usually applies. A swimming pool is an attractive nuisance. Owners know that children are likely to play there and they are very likely to get seriously hurt.
This negligence theory is usually available in lack-of-supervision drownings and other such injuries. Other times, a defective property condition leads to injury. In the Sunshine State, such claims usually involve the Florida Residential Swimming Pool Safety Act. Some of its safety provisions include:
- Alarms on all doors or windows which lead directly to the pool,
- A four-foot-high barrier that completely surrounds the pool, and
- A self-latching gate with a mechanism which operates from the pool side.
Similar rules apply to public pools. For example, these facilities must have certain life-saving equipment very near the water.
Common Defenses in Swimming Pool Drowning Cases
Lack of knowledge is the most common defense in drowning cases. The owner must know about the property defect.
Victim/plaintiffs may use direct or circumstantial evidence to establish knowledge. That direct knowledge could be a “smoking gun” like a written repair estimate. Circumstantial evidence usually involves the time-notice rule. If a reasonable amount of time passed, the court will presume that the owner had constructive knowledge (should have known) about the hazardous property condition.
Assumption of the risk is a fairly common defense as well. This defense may apply if there was a sign like “Swim At Your Own Risk.” Legally, this defense has two prongs:
Voluntary Assumption: To be voluntary, the sign must be clearly visible. The disclaimer cannot be buried on a list of pool rules. Additionally, the victim must have been able to read the sign and understand what it meant.
Known Risk: Swimming pool drowning is usually a known risk. But swimming pool poisoning is never a known risk. No one expects to go for a dip in the water and come out with chemical burns.
Assumption of the risk is an affirmative defense, so the insurance company has the burden of proof on each point.
Connect with Assertive Lawyers
Children are especially at risk for swimming pool injuries. For a free consultation with an experienced Tampa premises liability attorney, contact The Matassini Law Firm, P.A. Home and hospital visits are available.