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Debunking the Top Three Swimming Pool Drowning Defenses

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Among children under four, Florida has the highest swimming pool drowning rate. This death rate translates to the equivalent of four preschool classrooms. After just a few moments below the water’s surface, young children suffer serious brain injuries. Tragically, many of them do not recover.

Since the injuries are so severe, compensation in these cases is often rather high. Damages usually include money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. No amount of money can erase a wrongful death or even a serious injury. But this compensation does make it easier for survivors to move on with their lives.

Brandon drowning attorneys are committed to maximum compensation for victims, because they care about people. But insurance company lawyers pull out all the stops to reduce or deny compensation, because they only care about profits. The three most common insurance company defenses are discussed below.

No Legal Duty

In slip-and-fall, dog bite, swimming pool drowning, and other premises liability claims, Florida law employs a three-section classification system to determine duty. The degree of legal responsibility is the first, and arguably most important, element in a negligence case. These three categories are:

  • Invitees (owner benefit and owner permission) like hotel guests,
  • Licensees (owner permission but no owner benefit) such as guests of apartment tenants, and
  • Trespassers (no permission and no benefit) like party crashers.

Most swimming pool drowning victims are invitees. Therefore, the owner has a legal duty to make the premises, including the swimming pool, reasonably safe.

Many insurance company lawyers argue that non-commercial invitees, such as social guests, are licensees. If that’s the case, the owner only has a duty to warn about latent (hidden) defects, such as a broken gate latch.

However, Florida law is fairly clear that social guests are generally invitees. The owner benefits from that social interaction. There is no requirement that the benefit be economic. To drive this point home, many Brandon personal injury attorneys ask owners questions like “Did you enjoy hosting the party, at least before the drowning?”

Lack of Knowledge

Legal duty is not enough. Victim/plaintiffs must also establish that the owner knew about the dangerous condition.

Some dangers, such as the lack of any fence, are quite easy to establish. But other times, the danger is more subtle, such as a swimming pool fence that’s too short to meet legal requirements.

In these situations, victim/plaintiffs may use both direct and circumstantial evidence. Direct evidence “smoking guns” include things like repair estimates. Circumstantial evidence of constructive knowledge (should have known) usually involves the time-notice rule. If the hazard existed for quite some time, the owner should have known about it, whether or not there is a smoking gun.

Affirmative Defense

If the victim/plaintiff can establish a duty/knowledge prima facie case, insurance company lawyers may still have a trick up their sleeve. The assumption of the risk defense applies if the victim:

  • Voluntarily assumes
  • A known risk.

If it applies, the assumption of the risk defense, which is quite common in premises liability claims, completely immunizes the landowner.

However, even if the pool owner displayed a “No Lifeguard On Duty” sign, the assumption of the risk defense may not apply. Young children often cannot read or understand these signs, especially if their English proficiency is low or the warning is not prominently displayed.

Work with Tenacious Attorneys

Your swimming pool drowning attorney should not back down from insurance company lawyers. For a free consultation with an experienced drowning lawyer, contact Reed & Reed, Attorneys at Law. We have four area offices (St. Petersburg, Lakeland, Tampa, and Clearwater).

Resource:

floridahealth.gov/programs-and-services/prevention/drowning-prevention/index.html

https://www.needreed.com/property-safety-standards-in-a-florida-swimming-pool-drowning-claim/

Brandon Personal Injury
Reed & Reed, Attorneys at Law, is located in Brandon, FL and serves clients in
and around Brandon, Tampa, Apollo Beach, Sydney, Gibsonton, Balm, Valrico, Wimauma, Sun City Center, Lithia, Ruskin, Durant, and Hillsborough County.

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