Schools are out for the summer, warm weather is here and many kids will seek to cool off in swimming pools. For many families, swimming is a way to have fun and create memories, but it always comes with risks.
According to the Centers for Disease Control, there are about 4,000 fatal drownings in the United States every year, or about 11 every day. There are twice that many nonfatal drownings.
The risk is highest for young children. Drowning is the leading cause of death for children ages 1-4. Most of these drownings occur in privately owned swimming pools.
All of these cases are tragic, but there are some cases in which the circumstances have complex legal implications.
Premises liability is a legal theory that can hold property owners liable after a guest is injured due to a hazardous condition on their property. A textbook example might involve a customer who slips on a spill at a grocery store, falls and hits their head on the floor, suffering a serious injury. The injured party may be able to show that their injury was the result of the store owner’s negligent failure to clean up the spill in a timely manner. If they can do this, they can hold the owner liable for their damages.
The basis of premises liability is the legal duty all property owners have to their visitors to minimize the risk of a predictable accident. For instance, a grocery store owner has a duty to take reasonable care in cleaning up potentially hazardous spills.
The extent of an owner’s duty depends upon several factors, including the nature of the activity and the status of the visitor. A property owner doesn’t have a great duty to trespassers — generally, they can’t set a booby trap or do anything that willfully risks injury to a trespasser, but that’s the extent of their duty. By contrast, a store owner who invites the public to come inside the store to shop has a heightened duty to minimize safety hazards that could injure a customer. If they know about a potential safety hazard, they have a duty to correct it.
Likewise, a swimming pool owner has a duty to do what is reasonable in order to avoid the risk of a pool party guest being injured by drowning. However, swimming is an inherently risky activity, and so the pool owner can’t be expected to stop every accident. They must do only what a reasonable pool owner would do under the circumstances. For instance, if children are present, they might make sure that no adult leaves the children unaccompanied by the pool.
To add another wrinkle to the legal issues, New Jersey courts recognize that property owners can have a heightened duty even toward trespassers when they have something on their property that is likely to attract trespassers, and especially children.
In this case, property can become a so-called attractive nuisance: It presents a safety hazard to the community because it attracts children to an unsafe condition.
A prime example is a swimming pool. Swimming pools are so attractive to children and others that owners must know that their pools will attract trespassers. They know that the presence of the pool creates a hazard. Therefore, they have a duty to put up a fence or otherwise do what is reasonable to minimize the risk of a predictable accident.
To a family that is coping with the aftermath of a drowning, all the above may seem very abstract and remote from their situation. They are dealing with some extremely difficult matters, and they may not want to hear about legal theories and doctrines.
However, these issues can be very important in helping a family recover the resources they need to cope with the aftermath of a terrible accident. They can also hold careless pool owners accountable and encourage other owners to be more cautions.