The most common place of drowning is in a homeowner’s private backyard pool, Jacuzzi, or pond. Other frequent places for drowning deaths and injuries include public pools, and the swimming pools or spas of apartment complexes, hotels and motels, or fitness clubs. Public parks that contain lakes or ponds are other common sites of drowning accidents. Swimming or playing in the ocean or a lake can lead to tragic consequences. Special rules apply to drownings in publicly-owned or maintained waterways, such as public lakes, rivers, the ocean, bays, and other waterways that are due to the natural condition of the area that makes it dangerous to swim or play in.

A drowning may occur for a number of reasons: a person who can’t swim gets in water over his or her head; a young unsupervised child falls into a swimming pool; lifeguards at a crowded public pool fail to see the submerged body of a swimmer in distress; an experienced swimmer suffers muscle cramps; or the person drowns as the result of a collision or accident involving boats or personal watercraft such as Jet Skis.

A significant number of swimming pool drownings occur when the swimmer gets a finger or toe stuck in the grate over the drain and cannot free himself or herself. Or the drain cover is missing entirely, resulting in a swimmer’s arm or leg being stuck in the open pipe. Swimming pools constructed today generally have drain covers that are designed to prevent hands, fingers, toes, and feet from being caught in the drain cover, but there are hundreds of thousands of older pools that still have the dangerous old drain coverings or no covering at all.

A swimming pool owner/operator or an amusement park that allows people to swim in their pools often requires its prospective swimmers to sign a release or waiver of liability (also called a “hold harmless” agreement) before allowing the person to use the swimming pool. In such a release, the prospective swimmer agrees not to sue the swimming pool owner/operator for injuries or death even if such injuries or death were caused by the action, inaction, carelessness, or negligence of the swimming pool owner/operator or its employees.

There are a number of legal criteria the release or waiver of liability must meet to be enforceable, so you should contact an experienced personal injury law firm if you have lost a loved one in a drowning to get an opinion as to the court’s likelihood of upholding the release. If it is legally valid, a release or waiver of liability can protect the owner/operator of the swimming pool or amusement park only from the ordinary carelessness (“negligence”) of its employees or the condition of its premises. The owner/operator of the swimming pool or amusement park cannot, however, limit its liability for more serious conduct than simple “ordinary” negligence, such as gross negligence or intentional (deliberate) misconduct. “Gross negligence” is defined as either a lack of even scant care or an extreme departure from the ordinary standard of conduct. In layman terms, ordinary negligence may be defined as general carelessness, while gross negligence may be defined as recklessness, a higher level of misconduct.

Slaughter & Slaughter has experience in diligently representing clients who have lost a loved one in a drowning accident or who has suffered serious brain damage as the result of a near-drowning. We understand the financial, emotional, and psychological toll a drowning accident takes on the family of a drowning victim. Call now for a free consultation 415.738.7672

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The majority of drownings occur on private property, in the homeowner’s backyard pool or pond. Other common sites for drowning deaths and injuries include the pool or Jacuzzi of an apartment complex, a fitness club, or a hotel or motel. Public pools are also frequently the site of drowning deaths or injuries. Parks that contain lakes or ponds are also the scene of such deaths and injuries. Swimming or playing in the ocean or a lake can lead to tragic consequences.

A private homeowner who has a backyard pool or pond can be held legally responsible (“liable”) for drowning deaths and injuries due to lack of proper supervision of swimmers, failure to comply with codes regarding barriers and fences around the pool, failing to have a working self-closing and self-latching gate to keep out uninvited guests, particularly children, and failure to have a drain lid that prevents a swimmer’s hands or feet from getting caught in it, and violation of other city, county, and state requirements designed to make a swimming pool safer.

Special rules apply to drowning deaths and injuries that occur in public pools or on other public property. As for public pools, California law requires lifeguards to be provided for “any public swimming pool that is of wholly artificial construction and for the use of which a direct fee is charged.” As regards other public swimming pools, such as naturally occurring or that is only partially of artificial construction, California law requires that lifeguard services be provided or signs be posted clearly indicating that lifeguards are not provided.

Sometimes a person joining a health club or other private entity is required to sign a “release of liability” that purports to prohibit lawsuits against the private entity for injuries or deaths in the private pool and jacuzzi resulting from the ordinary carelessness (“negligence”) of its employees. These releases are generally invalid in court, as a person generally cannot avoid legal responsibility (“liability”) for his or her future negligence.

Private landowners, hotels, motels, clubs and associations whose land borders a public lake or ocean generally cannot be held liable for failing to warn its guests or members of the dangers of swimming or playing in the public lake or ocean, even if the landowner knows that it is dangerous to do so. The reason for this rule is that the private landowner does not own or control the beach, and accordingly they are not responsible for injuries that take place in the ocean or public lake.

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A customer of a hotel, motel, or inn is a lodger or guest, not a tenant. The main difference between a lodger and a tenant under a rental agreement or lease lies in the character of possession. A tenant has exclusive legal possession of the premises; a lodger, on the other hand, has only the right to use the premises, subject to the innkeeper’s retention of control and right of access to them.

A “special relationship” exists between a hotel or motel and its guests that does not exist in a landlord-tenant relationship. An innkeeper must maintain the premises in a reasonably safe condition to protect a lodger from unreasonable risks of physical harm while on the premises. The innkeeper must use reasonable care to keep the hallways, passageways, stairways, and parking lot reasonably well lighted and free of obstructions or hazards. An innkeeper, however, generally cannot be held liable for a defective or dangerous condition of property that it did not own, possess, know about or control.

The innkeeper has a legal obligation to keep the room, furniture, rugs, and fixtures in a reasonably safe condition to prevent injury. A person may be injured if the hotel chair he sits on breaks, causing him to fall to the floor. Or a lighting fixture over the bed may come loose and fall on the lodger, causing serious injuries. The owner of a hotel or motel has a duty to periodically inspect the room and its contents to ensure they do not pose an unreasonable risk of harm to guests.

The innkeeper can be held legally responsible for violating safety codes, which results in injury to or death of a lodger. For instance, the law generally requires that hotels, motels, and the like have working smoke detectors in every room. If the proprietor does not make regular checks of the smoke detectors to ensure they are in working condition, a fire breaks out in the hotel or motel, and a sleeping lodger is not woken up because of a non-functioning smoke detector, the proprietor of the hotel or motel can be held legally responsible for the lodger’s death or injuries.

A fun-filled vacation can turn to tragedy when a hotel or motel guest uses the swimming pool and, because of something the proprietor did or failed to do, results in the drowning death of or serious injuries to the guest. Children are especially at risk of drowning in hotel and motel swimming pools. The owner of a hotel, motel, inn, and the like must comply with all applicable safety codes and can be held liable for any deaths or injuries resulting from his or her failure to do so. Above and beyond complying with safety ordinances requiring specific measures, the proprietor must also use due care to ensure that the swimming pool is reasonably safe in all respects.

Safety features that are required by law include a fence around the pool with a self-closing gate, the stationing of a lifeguard at the pool or posting a sign that says something to the effect of “No Lifeguard on Duty,” installing a cover over the drain that prevents a swimmer from getting his or her hand or foot caught in it, keeping the water clean so the entire pool can be seen, and providing sufficient safety equipment to rescue someone from the pool, among other things.

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