Swimming Pool and Other Drowning Deaths

According to the CDC, each day an average of 10 people have died from non-boating related drownings since 2005.   In fact, drowning ranks 5th in the leading causes of unintentional deaths in the United States and fluctuates between 1st and 2nd in unintentional deaths for children ages 14  and younger.  If you have a loved one who tragically died from downing, you need to know your rights and what claims for wrongful death may be pursued.   Georgia laws related to drownings are drastically different depending on the circumstances of the incident, including where it occurred and the age of the victim.

 

Residential Swimming Pools and Children:

 

We frequently get calls on cases that involve the death of a child children playing in residential swimming pools.  Under most circumstances, trespassers on someone else’s land are going to find it very difficult to recover for any injury suffered while on that property.  However, most homeowners would be surprised to hear that they could be held liable if a trespassing child made their way into their land and drowned in the backyard swimming pool.

 

The legal doctrine that provides for this exception is called the Attractive Nuisance Doctrine. Under this exception to the normal rules about trespassers, Georgia Courts have recognized that children don’t always have the capacity to understand unfamiliar dangers or appreciate the risks presented by unfamiliar property. Under this particular doctrine, a landowner has a duty to keep their property free of dangers that are accessible and could cause harm to trespassing children. Gregory v. Johnson, 249 Ga. 151 (1982) is a Georgia Supreme Court case that says this doctrine also applies to swimming pools.

 

So when is a homeowner with a swimming pool responsible when a neighborhood kid sneaks in and accidentally drowns in the pool?  The Gregory Court says five conditions have to be met:

 

(1) the homeowner knows that children are likely to trespass;

 

(2) the homeowner knows (or should know) that the particular feature on his property could cause serious injury to children;

 

(3) children can’t appreciate the risk involved with the particular feature on the property;

 

(4) the homeowner’s maintenance of the condition or burden of eliminating the danger are small compared to the risk presented to children; and

 

(5) the homeowner fails to exercise “reasonable care” in eliminating the danger or protecting children.

 

So what does this really mean? Homeowners must surround their pool with a well-maintained fence, with self locking mechanisms, that children cannot climb or get over with the assistance of a nearby tree or other climbable object.