Common Defenses in Swimming Pool Drowning Matters
When it comes to swimming pool drownings, Florida is basically ground zero. More of these incidents occur in the Sunshine State than almost anywhere else in the country. Yet the number of drownings only tells part of the story. Near-drownings outnumber actual drownings by about 400 percent.
These incidents usually cause severe injuries. For example, just a few moments at the bottom of the water may cause a permanent brain injury. That’s especially true if the victim was a young child.
A Brandon personal injury attorney can often obtain substantial compensation in these cases. But insurance companies do not simply give away this money. In fact, they often fight swimming pool drowning claims tooth and nail, as outlined below.
Your Claim for Damages
A solid claim is usually one of the best ways to counter insurance company defenses. If the victim/plaintiff has a solid case, any insurance company defenses sound more like weak excuses.
Swimming pool drowning claims normally rest on negligence per se, which is a violation of a safety law, or ordinary negligence, which is a lack of care. Negligence per se may involve a defective pool latch or a fence that is not up to code. Ordinary negligence usually involves a lack of supervision.
Negligence is easier to establish if the victim was an invitee. These are people who have permission to be on the land, and whose presence benefits the owner in some way. That benefit could be economic or noneconomic (i.e. social guests).
In court, the victim/plaintiff must establish ordinary negligence or negligence per se by a preponderance of the evidence (more likely than not).
Lack of Evidence
The burden of proof is often a problem in swimming pool drowning claims. Typically, no one saw the victim fall into the water. So, it is just as likely that the victim accidentally fell into the pool.
Fortunately, Florida courts broadly apply a rule called res ipsa loquitur (the thing speaks for itself). Negligence is presumed if the injury would not normally have occurred unless someone was negligence and the owner had exclusive control over the premises.
Additionally, a preponderance of the evidence is the lowest standard of proof in Florida. If there is any evidence to support the presumption, such as the victim’s own testimony, negligence is usually established as a matter of law.
Assumption of the Risk
However, insurance company lawyers have one more trick up their sleeves. The assumption of the risk defense excuses negligent conduct if the victim:
- Voluntarily assumed
- A known risk.
This defense, which also applies in other premises liability matters, usually involves a warning sign, like “No Lifeguard on Duty” or “Beware of Dog.”
Occasionally, someone pushes a victim into the pool as a joke. But generally, swimming is a voluntary act.
The second element, however, is much more problematic. The insurance company must prove that the victim saw the sign, read the sign, and understood the warning. These elements are difficult to prove if the victim was a young child or had limited English proficiency.
Connect with Experienced Attorneys
Because so much is at stake, insurance company lawyers are very aggressive in swimming pool drowning matters. For a free consultation with an experienced personal injury lawyer in Brandon, contact Reed & Reed, Attorneys at Law. We have four area offices (St. Petersburg, Lakeland, Tampa, and Clearwater).