As we start to head into the Spring and Summer, the premise liability lawyers at Shiner Law Group wanted to provide the general public and our clients and our friends with some important information about the dangers facing the citizens who visit or live in the Sunshine State. Over the next few years, we expect to see a major increase in the States population and a huge uptick in tourism as the country continues to recover from the COVID shutdowns and more and more Americans move and visit the Sunshine State.
The Great State of Florida is not only surrounded by the beautiful blue ocean, but we probably have more pools per square mile than any other State in the United States, followed by Arizona.
Unfortunately, Florida, because of all the waterways, canals, oceans, pools, etc., leads the nation in downing deaths and water related injuries. As residents and visitors alike head to our beaches and swimming pools, we wanted to provide you with some important information regarding nonfatal water injuries and drowning deaths.
Additionally, according to the WHO, drownings are the third leading cause of unintentional injuries deaths worldwide, with approximately 320,000 drowning deaths in 2016.
According to the CDC there are approximately 10 drowning deaths per day in the United States, and, sadly, around 1 of 5 deaths are for children under the age of 14. Downing is the leading cause of death aged one to four. For every child who dies from drowning 5 children receive emergency care for nonfatal injuries sustained from being submersed. Nonfatal drowning injuries can cause serious harm, not only to the children who survived but adults as well.
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Swimming Pool Drowning Accidents
What happens if someone drowns in your pool, are you held liable and what actions can you take to prevent the unintentional drowning? Generally, premise liability law would apply, this law holds that a property owner is responsible for any injuries which may occur on their property. The property owner owes a “duty of reasonable care” under certain circumstances, however, there are exceptions, such as when the injured party is a trespasser or when the property is rented out and certain exceptions are stated within the rental agreement.
Additionally, a property owner has an additional duty of care when a child is involved, especially when dealing with swimming pools injuries. A few questions will need to be answered before determining final liability and each case is unique, and it requires proof that a homeowner has breached his duty to maintain a safe pool environment.
Some of the questions which will be examined are:
- Was the child or person adequately supervised?
- Was the pool maintained in good order?
- Did the pool have a safety fence/barrier surrounding it as per Florida Statutes?
- Was there proper signing/warning about the pool?
- Did the drain system meet Florida requirements?
Additionally, as part of the Residential Swimming Pool Act, enacted by the State of Florida in 2000, all new residential pools must meet certain safety requirements and must meet at least one of the following:
- A pool alarm with surface sensors that activate and alert when there is unauthorized water entry.
- An approved safety cover.
- The pool must be isolated from the house by a barrier/fence.
- All doors and windows which have an access point to the pool must have an alarm/alert system to notify residents that a door to the pool has been accessed.
- All access doors to the pool have to have self-closing devices and a latching mechanism.
As previously stated, the pool fencing/barrier must meet strict Florida safety requirements such as being at least 4 feet high, not have any openings which may allow a small child to squeeze through, be placed around the perimeter of the pool, enough space between the water’s edge and the barrier/fencing, gates/openings must open outwardly away from the pool and be self-closing/latching and finally be sturdy enough to prevent climbing over the barrier/fencing.
In most cases the pool owners “Homeowners Insurance Policy” would cover most if not all damages, however talking to one of the lawyers at Shiner Law Group could help guide you through this process.
In addition, there have been substantial developments related to pool drain systems. Sadly, many people have drowned or sustained life altering damages because of a faulty pool drain system. Past construction of pools in Florida were built with only one drain system in place. When this is the case, the drain can create such substantial “suction” that someone could be “stuck” at the bottom of the pool and unable to free themselves. Currently, most pools are now made with at least two pool drains – this prevents someone getting stuck at the bottom of the pool since there is another drain that relieves the suction pressure.
Public / Commercial Swimming Pool Drowning Accidents
Public / commercial swimming pools must also meet the standard of care and comply with Florida State statutes, that residential pools must meet but are typically held to a much higher standard.
Some additional features that public / commercial pools must maintain in order to be in compliance are:
- A Florida approved anti-entrapment system.
- Safety Vacuum release system which stops flow when a blockage is detected.
- Slip reinstate decks and walkways (additionally Florida State Disability requirements also must be met).
- Ladders/steps/Swim out platforms every 75 feet around the perimeter.
- Approved Safety Fences/Barriers (at least 4 feet in height with self-closing and latching devices).
- Designated chemical room, accessed by authorized personnel only.
- Up to date permit to operate a public pool.
Additionally, the dedicated lawyers at Shiner Law Group reminds the public of the importance of Florida Administration Code Section 64E9 which details the responsibility of public / commercial pool operator and the obligations of operating the pool and pool facility (including the pool deck area directly around the pool) to a manner to “prevent disease, sanitary nuisances and accidents by which the health and safety of individual(s) may be threatened or impaired.”
In short the pool operator must maintain public safety and public health during the operation of the pool. It is incumbent of the owners, managers, lifeguards, swimming instructors and other employees working at the public / commercial pool are to be responsible for the supervision, safety and well being of the general public.
During any litigation, we will review the certifications of all lifeguards and swimming instructors to ensure they are properly certified pursuant to the Florida Administrative Code 64E9 and ensure that certain safety measures required by the code including but not limited to safety drain outlet covers, shepherds hooks, a lifesaving ring (at least 18 inches diameter) with significant amount of rope attached to be able to reach all areas of the pool and other safety measures pursuant to the rules based on the size and type of pool.
If these measures are not in place and the “Rules” for swimmers are not properly posted liability and damages for any drownings or mishaps may be increased.
Florida Attractive Nuisance Doctrine particularly applies in pool drowning cases. The Attractive Nuisance law is an exception to the Florida Trespass rule. This law holds property owners to a higher standard of responsibility for child injuries by the presence of objects (such as pools and playgrounds) that are “attractive” to children. Because homeowners are typically exempt from cases of negligence when they involve a person who trespass, Florida legislators added an exemption for children that are attracted to certain hazards and placed a higher burden on the homeowner.
- The property owner must know or has reason to know that the place of danger (playground, poll etc.) is one where a child might be tempted to trespass.
- The place of danger is known/should have known to cause a risk of harm to a child.
- The child, due to his age or mental ability can not recognize the risk associated with the dangerous condition/place.
- The homeowner fails to act within a reasonable care to remove the danger or place barriers to prevent the danger or dangerous condition.
- The burned of eliminating the danger is less than the risk to the child
The aftermath of a nonfatal drowning or death from drowning can be quite challenging and devastating for the family and friends. During this time allow our lawyers at Shiner Law Group to guide you through the healing process and legal obstacles. Call us today and speak to our competent legal experts in personal injury law.
If you or a family member has been a victim of a water accident or drowning due to negligence of another, call the lawyers at Shiner Law Group at 561-777-7700.
Four Foundations to Proving Liability in a Water Injury or Death
Drowning and nonfatal water injury cases can be difficult and challenging, that is why the experts at Shiner Law Group can help you and your family through this traumatic experience. Like all personal injury or wrongful death cases proving liability requires us to prove four essential foundations:
- Duty – the defendant owes a legal obligation to the plaintiff under the specific circumstances.
- Breach of Duty – the defendant breached that duty by failing to act in accordance with their obligations.
- Causation – the defendant’s actions or inactions caused the injuries.
- Damages – the plaintiff was harmed or injured as a result of the defendant’s causations.
These are the basic elements in order to prove negligence at trial or in pre-suit discussions.
What is the definition of a near drowning or submersion incident?
A near drowning or submersion is when someone almost suffocates to death due to being submerged underwater, liquid enters the lungs and prevents the intake of oxygen.
Six of the most common effects of near drowning or submersion are:
- Pneumonia – lung infection that may occur after a near-drowning experience because liquid filled the lungs. The air sacs in the lungs swell because of the infection and cause difficulty breathing.
- Hypothermia – occurs when the body temperature drops too low for an extended period of time. Organ failure may develop and cause death. Interestingly, it does not need to be very cold out in order to suffer from hypothermia.
- Acute respiratory distress syndrome (ARDS) – occurs when the lungs swell and fill with liquid. This condition causes severe shortness of breath and may lead to respiratory failure. During respiratory failure a person cannot breathe well enough to get oxygen to the cells of the body.
- Brain edema – swelling in the brain caused by fluid buildup. This condition can lead to permanent brain damage and/or death.
- Anoxic brain injury – caused by oxygen deprivation which can have lingering severe neurological damage. When the brain is deprived of oxygen, brain cells begin to die within 5 minutes.
- Traumatic brain injury – a disruption in the normal function of the brain, typically caused by a severe head injury, in swimming accidents, driving into a pool or lake and hitting your head on the bottom of the pool or a rock in a lake.
15 Water Safety Tips
According to several recent articles, there has been an increase in accidental drownings amid the pandemic. Some have speculated that the cause is due to lockdown orders, closed schools, parents working from home and families spending more time at home than in previous years. Some Downing deaths can be prevented and the lawyers at Shiner Law Group wanted to provide you with some important tips which may help prevent drowning or other water injuries.
We have prepared 15 safety tips:
- 1. Swim Lessons – lessons impart important life savings mechanisms while swimming, breathing, floating, etc. You can start children in swimming lessons as early as 1 year of age.
- 2. Stay away from alcohol use while on, or near, the water – it is believed that nearly 70% of drowning deaths associated with water recreation is caused by the use of alcohol, which affects coordination and judgment.
- 3. Life Jackets – while boating or in the open water life jackets are an important took to saving lives.
- 4. Swim in designated swimming areas where lifeguards are stationed.
- 5. Always swim with someone else. The buddy system is key.
- 6. Never leave children near any body of water – such as a pool, canal, beach, bathtub, etc. – unintended.
- 7. If you have a pool, ensure there is a security/pool fence surrounding the pool when not in use.
- 8. Drink lots of water, as being out in the sun can dehydrate you and make any physical activity more difficult, which in turn may make it hard for you to help yourself or others in the event of an emergency.
- 9. Do not swim outside your comfort zone, aka, do not take unnecessary chances.
- 10. Avoid distractions while supervising friends, family, and children (aka stay off your cell phone or other devices).
- 11. Install alarms on all doors and windows leading to the pool area.
- 12. Install a pool alarm with surface wave sensors or subsurface disturbance sensors.
- 13. Learn CPR – help to save your family, friends, and others when an unfortunate incident occurs.
- 14. If a child goes missing, check the water (pool) first, every second counts in preventing death of serious injuries.
- 15. Ensure your pool is in compliance with Virginia Graeme Baker Pool and Spa Safety Act to avoid entrapment or injury from suction from pool or spy drains.
It is important to note that Florida has specific laws related to pool safety – specifically, The Florida Residential Swimming Pool Safety Act statute 515.29 section 1a, requires barriers at least 4 feet high around residential swimming pools.