When a child accidentally drowns in a swimming pool, determining fault requires a detailed analysis of the facts. That determination must be made so that responsible parties can be held accountable. Wrongful death lawsuits achieve justice by winning compensation for grieving parents, but they also send a message to other pool owners about the importance of protecting the lives of children.

Swimming pool owners are responsible for an accidental drowning when their negligence contributes to the death. Pool owners are negligent when they fail to take reasonable measures to prevent foreseeable drownings. Accidental swimming pool deaths in the San Jose area illustrate the importance of taking precautions to safeguard the lives of children.

Private Swimming Pools

Accidental drownings occur in both public and private swimming pools. A tragic example of a drowning in a privately owned pool occurred in 2013, when a 2-year-old boy in San Jose drowned in a neighbor’s pool while his babysitter was sleeping.

Assuming the accuracy of the news story, the babysitter was clearly negligent for shirking his duty to watch over the child. Unless the babysitter was provided by an agency that carried liability insurance, however, seeking compensation from the babysitter might prove to be futile.

A more difficult question is whether the pool owner was negligent. Many people are familiar with phrase “attractive nuisance,” a legal doctrine that most states continue to follow. The attractive nuisance doctrine creates an exception to an ancient rule that shields property owners from liability when trespassers are harmed by unsafe conditions they encounter while trespassing. When a feature of property (such as a swimming pool) is likely to attract children, the attractive nuisance doctrine requires property owners to protect children from harms that the feature might foreseeably cause. In the case of a pool, that duty might be discharged by putting a fence around the pool or by covering the pool when it is not in use.

A state court decision abolished the attractive nuisance doctrine in California, but it did so in response to a change in California law that eliminated the distinction between trespassers and other users of property. All California property owners now have “a generic duty” to exercise reasonable care to prevent foreseeable harm that might be caused to anyone who enters their property. Since it is foreseeable that children might want to play in a swimming pool, it is still the law in California that property owners have a duty to use reasonable means to protect children from drowning in their pools.

According to news reports, the 2-year-old drowned “after pulling back the pool cover.” Whether the cover was designed to keep children out of the pool or to keep leaves from blowing into the pool is unclear. A pool cover that can be circumvented by a 2-year-old, however, may not provide adequate protection to safeguard the life of a curious child. A wrongful death lawyer would need to make a careful investigation of all the facts before advising parents whether they are entitled to compensation for the death of a child under similar circumstances.

Community Swimming Pools

When swimming pools are shared by members of a community, the duty to protect the lives of children is compelling. Children generally have greater access to community pools than they do to a pool in a property owner’s back yard.

In 2013, a 4-year-old drowned in a community pool maintained by a South San Jose mobile home park. While news reports are incomplete, it does not appear that a lifeguard or mobile home park employee was supervising the use of the pool. Since it is not only foreseeable but likely that young children will find their way to a community pool, the mobile home park owners may have been negligent in failing to assign an employee to keep an eye on the pool.

Amusement Park Pools

When a water park or other entertainment business opens a pool to the public, it must use reasonable care to prevent drownings. Given the number of people who visit water parks and similar attractions, the need for a sufficient number of vigilant lifeguards cannot be overstated.

A 4-year-old’s 2007 death in a wave pool at the Great America amusement park in Santa Clara demonstrates how important it is for amusement parks to assure the safety of young customers. Questions were raised in that case as to whether Great America had enough lifeguards on duty, whether the lifeguards might have been fatigued because they were standing too long, and whether Great America should have required young children to wear flotation vests in its wave pool.

Public and government-owned swimming pools

A public or high school swimming pool that is owned by a municipality or school district will usually have lifeguards or swimming instructors available to prevent drownings. An adult recently drowned in one of the Piedmont Hills High School pools, but he apparently gained access while school was not in session, despite a “15-foot high fence topped with barbed wire” and alarmed doors that were designed to keep trespassers out of the school’s pools. The death was apparently a suicide rather than an accident.

While the government, like a private citizen, can be held liable for its negligence, there are often procedural barriers that make it more difficult to bring a wrongful death claim against a city or a school district. Families of victims who accidently drown in a school or public pool should contact a wrongful death attorney immediately so that important procedures for making a claim can be followed.