Swimming Pool Accidents Litigation

USING BUILDING CODES IN RESIDENTIAL SWIMMING POOL WRONGFUL DEATH CASES

THE PROBLEM

From Memorial Day through Labor Day 2013, at least 202 children between the ages of one (1) and fourteen (14) drowned in a swimming pool or spa in the United States. A United States Consumer Product Safety Commission report published in May 2013, provides annual estimates for years 2010 through 2012 relating to the emergency department's treatment of submersion injuries. According to this Report, sixty-six percent (66%) of the reported fatalities and seventy-eight percent (78%) of the treated injuries involved children younger than five (5) years of age. Unfortunately, children between the ages of one (1) and three (3) represented sixty-four percent (64%) of treated injuries for years 2010 through 2012, and sixty-seven percent (67%) of the reported fatalities for years 2008 through 2010 involved children younger than fifteen (15) years-of-age.

The Consumer Product Safety Commission, urges individuals to visit www.poolsafely.gov for vital, lifesaving information regarding the prevention of drownings in and around pools and spas. Our civil justice system should seek to do more to protect children, the most vulnerable members of society, from these horrific drowning accidents.

Alarmingly, drowning ranks fifth (5th) among the leading causes of unintentional injury and/or death in the United States. The Center for Disease Control states that the main factors that increase an individual's risk of drowning are (i) a lack of swimming ability, (ii) a lack of barriers to prevent unsupervised water access, (iii) a lack of close supervision while swimming, (iv) location, (v) failure to wear life jackets, (vi) alcohol use, and (vii) seizure disorders. Most drowning victims ages one (1) through four (4), regrettably, drown in home swimming pools. This Article attempts to provide an overview of very basic issues involving the prosecution of a wrongful death case involving the drowning death of a minor child in a residential swimming pool.

CHOOSING THE RIGHT DEFENDANT

Various state laws, concerning negligence and contributory negligence, can make the prosecution of a civil wrongful death case for the drowning of a minor child a challenging and time consuming process.

There are numerous possible defendants in a residential swimming pool drowning case. First, the homeowner can be a possible defendant. A homeowner obviously has certain legal duties governing the maintenance and operation of a residential swimming pool. However, the majority of states label social guests as licensees. Typically, under this standard, the homeowner does not owe the same duty of care to a licensee as to an invitee. Usually, the homeowner must act willfully or wantonly in order to be held liable for a child licensee's death. Due to this high standard, the homeowner's conduct often must be deliberate, and the homeowner must have an intention to harm the child victim or have an utter indifference to or conscious disregard of the safety of the child victim.

The Georgia Court of Appeals held that a child being supervised by her mother at the time of a drowning could not bring a wrongful death action for negligent supervision because the mother was properly supervising the child. In that case, the Court of Appeals did not address the issue of whether the child was a licensee or an invitee. The fact that the parent of the child was present at the time of the child's injury warranted the affirmance of the trial court's grant of summary judgment.

Due to the fact that the law can be challenging in premises liability cases for social guests or licensees and in situations where a parent is exercising proper supervision, it is necessary to find other possible defendants where the legal standard is not as onerous. It is the Author's opinion that attorneys, by bringing these wrongful death cases, can work to create a safer environment for children who live in close proximity to residential swimming pools.

Along with a homeowner, a builder of a residential swimming pool can be held liable for negligent construction. In Georgia, there is an eight (8)-year statute of limitation for negligent construction. Under O.C.G.A. § 9-3-51, any deficiencies in connection with improvements to real property are subject to a lawsuit, and the plaintiff has eight (8) years to file such a lawsuit. Therefore, a pool that is constructed with deficiencies can be the subject of a lawsuit eight (8) years from the date of construction. Importantly, in order to be successful in a wrongful death action against a builder, it is critical that a plaintiff find building codes that the builder did not comply with during the construction of the residential swimming pool. The Standard Swimming Pool Code 1994 § 315.2.1.9 states as follows;

Where a wall of the dwelling serves as part of the barrier, one of the following shall apply:

1. All doors with direct access to the pool through that wall shall be equipped with an alarm which produces an audible warning when the door and its screen are open. The alarm shall sound continuously for a minimum of thirty seconds immediately after the door is opened and be capable of being heard throughout the house during normal household activities. The alarm shall automatically reset under all conditions. The alarm shall be equipped with the manual means to temporarily deactivate the alarm for a single opening. Such deactivation shall last no more than 15 seconds. The deactivation switch shall be located at least 54 inches above the threshold of the door.

2. The pool shall be equipped with the power safety cover which complies with ASTM F 1346-1991.

3. Other means of protection, such as self-closing doors with self-latching devices, which are approved by the administrative authority shall be accepted so long as the degree of protection afforded is not less than the protection afforded by 1 or 2 described.

A large number of residential swimming pools use the wall of the dwelling to serve as one of the barriers to the pool. As a result, many of these dwellings do not meet the codes cited above. In addition, incredibly, most pool alarms that comply with the above standard cost a mere $50.00. Thus, a compelling point to be made is that $50.00 can save a child's life.

The pool contractor should be aware of this Code and at the very least educate the homeowner about this Code. Accordingly, the municipality or county that inspects the construction of the pool should inform the homeowner if these measures were not taken.

Most swimming pool contractors install pools in various counties throughout the State of Georgia. Although the building codes are fairly uniform, it is surprising how few contractors are even aware of the applicable Codes. For instance, Section 316 of The Standard Swimming Pool Code states that all pools, whether public or private, shall be provided with a ladder or step for both the deep and shallow ends of the pool. A common error made by municipalities or counties is that swimming pools are not inspected after they are completely filled with water and in operation as required by the Code.

CONCLUSION

When a client calls with a residential swimming pool injury or death, many lawyers will assume that the only viable claim is a claim against the homeowner's insurer. This is a difficult claim because most victims are social guests or licensees. However, with proper investigation of local building codes, a significant case can be brought against other parties that may be responsible for the victim's injury or death. There are numerous other building codes that are applicable to the construction of swimming pools, and this Article does not purport to be an exhaustive survey of all possible theories of liability. It is up to the lawyer investigating a wrongful death case to thoroughly study the building codes and find a qualified expert witness to do a site inspection as soon as possible. Taking these actions can transform a very difficult premises liability case involving a licensee or social guest, into a negligent construction case that will, hopefully, bring justice to the family of a drowning victim.

Jon Hawk Swimming Pool Pic

Jon R. Hawk, is a trial lawyer and a partner at Sell & Melton, L.L.P. He is rated "AV" by the Martindale-Hubbell Law Directory, which is the highest rating of legal ability and general ethical standards. Mr. Hawk was named a "Georgia Rising Star 2005 and 2006" in Law & Politics and Atlanta Magazine. Mr. Hawk has been a presenter and speaker at Continuing Legal Education Seminars throughout the state of Georgia and Florida. He is a member of the Georgia Trial Lawyers Association, the American Association of Justice, and the Southern Trial Lawyers Association.


Tragic Tally: More Than 200 Reported Child Drownings in Pools and Spas This Summer, Pool Safely, (Dec. 26, 2013), http://www.poolsafely.gov/news/tragic-tally-200-reported-child-drownings-pools-spas-summer/.

Ted Yang, Pool or Spa Submersion: Estimated Injuries and Reported Fatalities, 2013 Report, Division of Hazard Analysis, U.S. Consumer Product Safety Commission (Dec. 26, 2013), http://www.poolsafely.gov/wp-content/uploads/PoolSubmersions2013.pdf

Id. at 2.

Id.

Home and Recreational Safety, Unintentional Drowning: Get the Facts, Centers for Disease Control and Prevention (Dec. 26, 2013), http://www.cdc.gov/homeandrecreationalsafety/water-safety/waterinjuries-factsheet.html

Id.

Id.

The rules concerning public swimming pools differ greatly and are not the subject of this article.

Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003).

[10] Heron v. Hollis, 248 Ga. App. 194 , 195-196, 546 S.E.2d 17 (2001).

Id.

O.C.G.A. § 9-3-51.

The Standard Swimming Pool Code 1994 § 315.2.1.9.