Herreth Law
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Understanding Swimming Pool Drowning Claims

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for civil law.jpegBetween Memorial Day and Labor Day, hundreds of people usually drown in swimming pools across the nation. About 70 percent of these victims are children under 5. Many other victims sustain permanent brain injuries.

Drownings are the most common and most deadly kind of swimming pool injuries, but they are not the only kind. Swimming pool poisonings, usually because of too many cleaning chemicals or not enough of these things, cause many serious injuries as well.

Compensation in a swimming pool drowning case usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. To obtain maximum damages, a Fort Worth personal injury attorney must build a case and anticipate some common insurance company defenses.

Your Claim for Damages

Many swimming pool drownings involve property owner negligence. This lack of care often involves a defective property condition, such as:

  • Broken or missing swimming pool gate latch,

  • Inadequate pool perimeter fence,

  • Overactive drains which cause dangerous undercurrents, or

  • Malfunctioning pumps.

Generally, owners have a very high duty of care in these situations. This high duty applies if the owner invites people to the pool, either directly or indirectly, and the victim's presence benefits the owner. That benefit could be economic or noneconomic.

Victim/plaintiffs must do more than establish duty. They must also prove that the owner knew about the dangerous property condition and failed to correct it. Evidence on this point could be one of the following:

  • Direct: Such evidence usually surfaces during the discovery phase. Direct evidence of knowledge includes things like citations from safety inspectors, unpaid repair estimates, and "you should fix this" warnings from other people.

  • Circumstantial: Tarrant County judges typically use the time-notice rule to evaluate circumstantial evidence in these cases. Think about a discarded banana peel on the ground. If the peel was yellow, it probably just fell, so knowledge does not attach. But if the peel was black, it had been on the ground for a while, and an employee should have picked it up.

Plaintiffs must establish knowledge, and the other elements of negligence, by a preponderance of the evidence (more likely than not).

Insurance Company Defenses

Contributory negligence is a common defense in these cases. This doctrine shifts blame for the injury from the property owner to the victim.

The assumption of the risk defense comes up a lot as well. This rule excuses liability altogether if the victim/plaintiff:

  • Voluntarily assumed

  • A known risk.

Contrary to popular myth, a "No Lifeguard on Duty" sign is not a get-out-of-jail-free card. Signs like these simply make the assumption of the risk defense a little easier to establish in court. The owner must still prove that the victim saw the sign and that the victim could read and understand the sign.

Swimming pool drownings often lead to serious or fatal injuries. For a free consultation with an experienced personal injury attorney in Fort Worth, contact Herreth Law. We routinely handle matters in Tarrant County and nearby jurisdictions.

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