Liability for Pool and Drowning Injuries

According to the Consumer Product Safety Commission (CPSC), between 2015 and 2017 there were 379 reported pool or spa related fatal drownings involving children under the age of 15. 75% of those drownings involved children under the age of 5. In more than 70% of cases, fatal drowning incidents occurred at residential locations, such as the home of the child, a neighbor’s residence, or the home of the family or friend.

Pool owners must understand the risks and dangers to children, and set up proper protection to keep out trespassers. In addition, homeowners with pools must take necessary precautions to ensure the features of the pool and its surrounding area are safe as possible. Any failure to take these precautions and implement necessary safety features may subject the homeowner to a lawsuit if a child is injured or dies in a pool drowning incident.

Public pools are subject to even more rigorous standards. Under the Virginia Graeme Baker Pool and Spa Safety Act of 2008 (the Act), public pools must meet federal regulations regarding drain safety standards to avoid entrapment-related injuries and deaths.

What you should know about pool drains and entrapment risks

Suction entrapment is a risk in swimming pools. A child may be held down underwater by the suction of the pool drain, or get a hand or foot stuck in the drain grate; if the child cannot pull free, he or she may suffer long-term, catastrophic injury or death.

The most dangerous types of drain systems are single pool drains and spas. They have a single suction source that makes the suction particularly strong. Some systems use a safety vacuum release system which will automatically shut the pump off when a stopped-up drain is detected, thus preventing an entrapment injury or death. Dangerous drain covers also pose a high risk of entrapment. In order to comply with the Act, drain covers must be designed to eliminate the risk of hair, clothing, and jewelry entrapment.

Defective pool products leading to injury

Along with drains and pumps, defective diving boards, pool slides, safety gates, and ladders can also lead to serious injuries, as can pool toys if they are improperly labeled as flotation devices. Pools covers – both solar and for winter use – must be safe and in good working order, or they can pose a risk as well.

Virginia’s “attractive nuisance” doctrine

When an adult makes a decision or commits an act that contributes in some way to his or her injuries, his or her case could be dismissed under Virginia’s contributory negligence law. Children under the age of seven, however, are considered incapable of contributing to their own injuries. As such, the property owner bears liability if a child is injured on that property because of an “attractive nuisance” – something that could tempt a child to enter a property without permission.

Pools are considered attractive nuisances. Even if a young child is technically “trespassing” on a property, the owner could still be liable for any injuries that child sustains if, among other things:

• The owner knew that a child was likely to enter the yard to get to the pool
• The owner did not to secure the pool, or eliminate any dangers in, around, or associated with the pool
• The child was too young to truly understand the risks and dangers presented by the pool

The injury attorneys of Phelan Petty represent clients throughout Virginia. If your child was the victim of a drowning incident or pool injury caused by another party’s negligence, we are here to help. To arrange a free consultation at our Richmond office, please call 804.980.7100 or complete our contact form.