The most obvious and serious pool-related injury is drowning, and the risk of drowning is especially serious for children. In fact, drowning is the leading cause of unintentional death among children one through four years old. The Centers for Disease Control and Prevention (CDC) estimates that there is an annual average of 390 drowning deaths in pools and spas among children under 14 years old. Seventy-six percent of those deaths involved children younger than five years old, and 67 percent involved children between one and three years old. The state of Florida bears the dubious distinction of having the highest number of pool deaths among children in the nation, with 50 children under the age of 15 years old drowning in 2014. As is to be expected, most of these deaths occur in the warm months from May through August, when pool usage is at its highest. While drowning is the most severe pool-related injury a person can suffer, pools can cause a number of other serious injuries, including slips and falls.
All property owners owe a general duty of care to visitors of their property, and this includes duties surrounding the safe operation of swimming pools. However, not all visitors are created equal under the law. Florida courts recognize two very broad classes of visitors and impose different standards of care for each one.
The first class is invitees (which are split into public invitees and business invitees) and licensees by invitation. Both of these types of visitors are people who are permitted to be on the property because it is open to the public or because they were invited to enter or remain on the property by the landowner. Landowners owe this group the duty to correct and warn of any dangers that the owner knows or should know of by reasonable care that the visitor would not know of or be able to discover through reasonable care.
The second category of visitors is uninvited licensees and trespassers, who are people who do not have permission to be on the property. The only duty that landowners owe to uninvited licensees and trespassers is to refrain from willful or wanton injury. In the case of pool owners, the owner must maintain their premises in a reasonably safe condition to avoid injuries to invited guests but do not owe any duty to uninvited guests or trespassers (in most cases). If they fail to keep their premises safe, they expose themselves to legal liability.
Attractive Nuisance Doctrine
One notable exception to the general rule that landowners owe no duty to trespassers is the attractive nuisance doctrine. An “attractive nuisance” is any object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition. Classic examples of attractive nuisances are, cars, trampolines, tree houses, sand, and, of course, swimming pools. Landowners are subject to liability for physical harm to children caused by artificial conditions on the land if:
(a) the place where the condition exists is one upon which the landowner knows or has reason to know that children are likely to trespass, and
(b) the condition is one in which the landowner knows or has reason to know will involve an unreasonable risk of death or serious bodily harm to children, and
(c) the children do not discover the condition or realize the risk involved in intermeddling with it or coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk to the children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
Thus, the attractive nuisance doctrine requires landowners to protect trespassing children from wandering onto their land and hurting themselves in their pools.
In order for a plaintiff to prove that a pool owner’s negligence caused injury, he or she must satisfy all the elements of negligence: duty, breach, causation, and damages.
Duty: The duty owed to the plaintiff is the one that corresponds to his or her status as a visitor on the pool owner’s land. For invited guests, this is the duty to correct and warn of dangers.
Breach: A pool owner breaches this duty when his conduct falls short of this duty. This could involve a number of different actions, including the failure to comply with Florida’s Residential Swimming Pool Safety Act (more on this below).
Causation: Causation is a showing that the owner’s actions were the direct and proximate cause of the plaintiff’s injuries.
Damages: Damages are the injuries that the plaintiff sustained because of the defendant’s actions.
In order to prevent unintentional drowning and other pool-related injuries, the Florida legislature passed the Florida Residential Swimming Pool Safety Act. This act imposes a uniform set of safety requirements on all swimming pool owners in the state of Florida. Some of the act’s most important provisions are as follows:
Pool safety features: All swimming pools must meet at least one of the following safety features:
–The pool must be isolated from access to a home by an enclosure, or
–The pool must be equipped with a pool safety cover, or
–The doors and windows providing direct access from the home to the pool must be equipped with an exit alarm, or
–All doors providing direct access from the home to the pool must be self-latching, or
–The swimming pool must contain an alarm that sounds upon detection of an accidental or unauthorized entrance into the water.
Barriers: All swimming pools in Florida are also required to be surrounded a barrier that meets the following conditions: (a) the barrier must be four feet high on the outside, (b) it must not have any gaps through which a child could crawl, (c) it must be separate from any other wall surrounding the yard, and (d) it must be placed sufficiently far away from the water’s edge so as to prevent a child who has penetrated it from immediately falling into the water.
Gates: Gates that provide access to the pool must open outward away from the pool and be self-closing and equipped with a self-latching locking device. This latch must be on the pool side of the gate and placed so that it cannot be reached by a young child over the top or through a gap.
If you have been injured in a pool-related accident and you suspect that it may have been caused by the pool owner’s negligence, you may be able to recover. Please contact the attorneys at the Dolman Law Group for a free consultation by calling 727-451-6900.