Drowning accidents occur when a person gets submerged under water and becomes unable to resurface to breath. Drowning accidents can result in death, while near-drowning accidents can result in catastrophic injury, e.g., brain damage.
Many more people are hospitalized for injuries caused by near-drowning accidents than die by drowning. In either case, the results for the victim and their close family members can be disastrous.
There are a high number of drowning incidents every year. Technically, drowning is defined as respiratory injury from being submerged in a liquid. Drowning can occur in the course of a wide variety of water activities, such as:
Various factors can contribute to drowning, such as an injury or leg cramp, the inability to swim, or being pinned underwater.
Who Can be Held Liable for a Drowning Incident?
Depending on the facts of the situation, various parties can be held liable for negligence that may have caused a drowning incident. For instance, the owner of a home swimming pool may be held liable to a neighboring family if their child drowns in their backyard swimming pool.
The allegation of negligence may be based on a home pool owner’s failure to have fencing in place that would effectively prevent unsupervised neighborhood children from gaining access to the pool. Or there may have been fencing in place but gates were left unlocked. Or, pool covers may not have been effective for keeping people out of the pool. Any number of factual circumstances could give rise to a claim for negligence against the owner of a backyard pool.
Water parks can be held liable for drowning incidents stemming from negligence. Water park operators are legally obligated to take reasonable measures to ensure that water facilities in their parks are free from hazards that may cause injury to their customers. Lifeguards must be adequately trained and on duty when required. They must remain vigilant in observing park attendees, especially children. Water park owners and the property management companies they employ must ensure proper maintenance in order to keep rides and features functioning safely.
Public agencies responsible for beaches on rivers, lakes and ocean fronts might be liable for negligence for failing to warn swimmers of hazardous conditions in the water. On ocean beaches every summer, swimmers are lost to rip tides. Many swimmers are unfamiliar with the risk that rip tides pose. If they are not warned, they may enter the ocean only to be dragged away into water that is dangerously deep by strong rip tides.
Product defects can be a factor in drowning cases. Manufacturers and distributors of equipment can be liable for injuries caused by defective products. Warning label defects and other defects associated with certain equipment used in the water, such as diving gear, can give rise to strict product liability for injuries suffered in a drowning accident. Or, an above-ground swimming pool might be constructed in a manner that is defective, leading to a drowning incident.
Who Can Be Liable for Negligence?
The owners and managers of pools, wherever they are located, and water parks can be liable for negligence. They owe a duty of care to the public and if they fail to meet that duty and their failure causes injury, the owners and managers can be liable for negligence. Again, public agencies might be liable for negligence in the operation of public swimming pools that they own and operate. Lifeguards must be on duty when the pool is open. They must be adequately trained and respond appropriately when an incident occurs.
Tour guides and others who run tourist groups around water attractions, e.g. snorkeling or scuba diving guides, can be liable also if they lead group activities in a negligent manner.
Who Can Be Liable for Strict Product Liability?
The manufacturers and distributors of equipment meant for use in the water can be liable if defects in their products cause injuries or death to a user of the equipment.
Manufacturers and distributors of defective products can be liable for several different types of defects as follows:
- Design Defects: Design defects are defects in a product that arise during the design phase of the manufacturing process;
- Manufacturing Defects: Manufacturing defects arise during the manufacturing of a product. For example, defective materials might be used to make the product that make it susceptible to failure or malfunction;
- Marketing Defects: Marketing defects are defects that come from faulty marketing of a product. For example, warning labels may be inadequate to warn consumers of the known dangers of using a product. Instructions for assembly or directions for use may not be adequate, so a consumer might assemble a product in the wrong way, making malfunction more likely.
Are There Any Legal Remedies for a Drowning Incident?
Both lawsuits for negligence and lawsuits for strict product liability seek an award of compensatory damages. Compensatory damages cover a victim’s economic losses from injuries caused by negligence or defective products. Economic losses that can be compensated by damages in a civil lawsuit include all costs of medical treatment for the injury and lost wages if the victim cannot work.
If at the time of trial or settlement, the victim has not fully recovered, the victim can recover damages to compensate for future medical expenses and future lost wages. If the victim’s earning capacity is negatively affected, they can recover compensation for that loss as well as any permanent disability. They can also recover a sum that compensates them for their pain and suffering. If the circumstances justify it, because the negligent party’s conduct was especially offensive or reprehensible, a victim might recover punitive damages as well.
If a person should have a drowning accident that proves fatal, their close family members would file a wrongful death lawsuit.
An award of damages in a wrongful death lawsuit would compensate the victims for the following losses:
- Expenses for medical treatment that the deceased person was provided before death;
- Income the deceased person lost before death because they were unable to work;
- Any other accident- or injury-related expenses incurred before the death of the victim;
- Funeral and burial costs;
- The value of the deceased person’s future income and employment benefits;
- The loss of potential inheritance from the deceased person;
- The monetary value of goods and services the deceased would have provided.
As it is in a negligence lawsuit, damages for pain and suffering may be awarded for the following emotional injuries:
- The physical pain, emotional suffering and diminished quality of life that the deceased person experienced before their death;
- The physical pain, emotional suffering and diminished quality of life that a surviving spouse’s or other family members experienced because of their loved one’s death;
- Loss of the love, society, protection, comfort, and companionship that the deceased person would have provided to a spouse and other family members had they lived;
- Loss of a spouse’s consortium with the deceased person.
While other losses may be experienced and may be compensated, these would be the main types of losses that are covered by an award of compensatory damages.
Do I Need a Lawyer for Help with a Drowning Lawsuit?
Drowning is a serious issue. A near-drowning incident can lead to catastrophic injuries. A drowning incident can result in a victim’s death.
You may need to take legal action to recover the losses you have experienced as a result of a near-drowning or drowning accident. It may be in your best interest to consult an experienced personal injury lawyer in your area if you or a loved one of yours has been injured or killed in a near-drowning or drowning incident.
Your attorney can provide you with the help and guidance you need to navigate the legal process. Also, your attorney can represent your interests in court and in negotiations regarding a settlement as well. Your attorney has the expertise necessary to obtain the best possible outcome for you, one that fully compensates you for your loss.
