Insurance Company Defenses in Swimming Pool Injury Cases
When a small child goes to the bottom of a swimming pool, lake, or other body of water, seconds count. These victims sustain brain damage after just five minutes below the surface. In most cases, this brain damage is permanent.
Unintentional drowning, usually due to a lack of supervision, is not the only possible swimming pool injury. Incorrect levels of chemical cleaners, like chlorine, can either cause bacterial infections or chemical burns. Malfunctioning drains could literally suck swimmers under the water. And, nonworking pumps can cause chlorine gas buildup. These poison gas clouds are especially dangerous to children, older adults, and anyone with certain pre-existing conditions.
To obtain compensation for these injuries, a Brandon personal injury attorney must do more than build a solid case. A lawyer must also anticipate a number of insurance company defenses and be prepared to refute them.
Swimming pool owners are not legally responsible for damages unless they owe a duty to the victim. Generally, the nature of this duty depends on the relationship between the victim and owner.
Swimmers who pay to be in the water, either directly or indirectly, are clearly invitees. Examples include victims at water parks, public pools, hotel pools, or homeowners’ association park pools. These individuals had permission to be on the land and provided a financial benefit to the owner.
Swimmers at backyard swimming pool parties are in a grey area. Typically, there was no financial benefit. However, the owner usually realized a noneconomic benefit. In many cases, that’s sufficient to establish invitee status.
Alternatively, these swimmers could be licensees. These individuals have express or implied permission to be in the pool, but there was no benefit. People like guests of apartment tenants are almost definitely licensees. There is rarely an economic benefit, and little if any noneconomic benefit.
Children sometimes swim in pools without permission. Legally, these victims are trespassers. So, owners owe no duty. However, some exceptions, such as the attractive nuisance rule, often protect child victims in these situations. So, these claims are rather complex.
This defense sometimes comes up in negligence per se claims related to a nonworking gate, inadequate fence, or other physical defect. There must be a connection between the physical problem and the victim’s injury. So, a noncompliant fence does not mean the owner is liable unless the victim climbed the fence to access the pool.
Additionally, swimming pool drowning claims are frequently no-witness claims. Ordinarily, that’s a problem, because the victim/plaintiff has the burden of proof. But Florida has a rather broad res ipsa loquitur rule. Generally, if the property owner had exclusive control of the area, the owner was presumptively negligent in swimming pool injury cases.
Assumption of the Risk
Frequently, owners post signs like “Swim at your Own Risk” or “No Lifeguard on Duty.” These warning signs make it easier to prove the assumption of the risk defense. Owners are not liable for swimming pool injuries if the victim:
- Voluntarily assumed
- A known risk.
That first element is usually present, but the second element is more problematic. Some risks, like the aforementioned malfunctioning drains, are hidden risks. They are not known risks. Additionally, the owner must prove the victim saw the sign, could read the sign, and could understand what the sign meant. That’s not always possible, especially if the victim was a child.
Contact Aggressive Attorneys
Common insurance company defenses in swimming pool injury claims often fail. For a free consultation with an experienced Brandon drowning accident attorney, contact Reed & Reed, Attorneys at Law. We have four area offices (St. Petersburg, Lakeland, Tampa, and Clearwater).