Category Archives: Child Death Injury – Drowning

The Dark Side of the Swimming Pool – Legal Claims Involving Child Injury or Death by Drowning

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suicrosomiz: Images Of Kids PlayingSummer is here, and many are enjoying the swim season. However, if children are not properly supervised at the pool, summer-time fun can quickly turn tragic.

Drowning is the leading cause of injury death for children 1 to 4 years of age in the United States. (See HERE for 2017 National Safety Council statistics)

Top Causes of Injury Death to Children - 2009

Centers for Disease Control and Prevention / CDC Vital Signs: Child Injury

Many of these injuries and deaths from drowning are foreseeable, controllable, and preventable. Pool owners can prevent the tragic impact the death or injury of a child brings to a family by following a few simple safety rules, but too often, proper safety measures are not taken, resulting in tragedy. What legal recourse is available to parents whose child has suffered serious pool related injury or death?

The answer to this question depends on the ability to prove negligence on the part of the pool owner. If your child’s injury is a result of the owner’s failure to follow safety regulations, you may have a strong case. Unfortunately, it is harder to determine pool injury liability than one might think. There isn’t a published “list” of all safety rules that apply, and the standards/rules may vary depending on the location and type of pool. This is why you need a lawyer to research what standards/rules apply to your situation and to determine how to best present your claim to the insurance company or jury.

One body of regulations that relate to pool safety can be found in Chapter 511-3-5 of the Rules of the Georgia Department of Human Resources Public Health. These “pool rules” contain a variety of standards that may assist your attorney in identifying what the owner/operator of the pool in question might have failed to do that led to your child’s injury. For instance, the regulations address such matters as diving boards, jump boards, beginner’s areas, decks, bather load limits (the maximum number of swimmers that can safely be allowed in the pool at one time), and required inspection reports.

Another source of duties for pool owners/operators are city and county ordinances. These need to be identified and researched by your attorney and the standards they contain will vary from jurisdiction to jurisdiction.

If the pool where your child was injured had a lifeguard, another important set of standards/rules for proving pool injury liability is what is known as the “standard of care” for lifeguards. An investigation can uncover whether the lifeguard(s) were properly trained, certified, and whether they performed their duties on the day of the injury to the “standard of care.”

The most basic applicable “standard of care” for lifeguards involves a “two-fold duty” that all lifeguards must fulfill. This “two-fold duty” is first, to observe simmers for signs of distress. Second, if distress is discovered, to attempt a reasonable rescue. In cases of pool injury or drowning, the central issue is to prove whether or not the lifeguard(s) had any ability to discover signs of distress prior to the injury or drowning. If so, than the lifeguard is liable for the injury/death.

In addition, if the lifeguard was required to abide by written standard operating procedures created by the owner/operator of the pool, whether or not they followed these procedures provides additional evidence that will help your attorney prove that the negligence of the lifeguard was the cause of the injury/drowning.

Whatever your particular circumstances, the core issue in any swimming pool injury/death lawsuit is liability – whether or not it can be proven that the injury or death resulted from negligence on the part of the pool owner. An attorney can help you navigate the complexities of proving liability and presenting your case to the insurance company or jury, providing you and your child with clear legal options.

This is a short PSA reminding everyone that drowning is a leading cause of injury death to children ages 1 to 14 and that we all need to be aware and do all we can to prevent these tragedies –

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Attorney Pete Pearson practices personal injury law in Atlanta, Georgia and has a special interest in helping families of injured children. He is a father to nine and lives with his wife and children in Newborn, Georgia. His office is located in Conyers, Georgia. He can be reached directly at Six-Seven-Eight 358-2564. 

Georgia Pool Rules – Child Injury in Swimming Pools, Spas, and Recreational Water Parks

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I’ve just reviewed Georgia’s “pool rules”, a scintillating read.

The Georgia Department of Public Health (DPH) promulgates rules that apply to most swimming pools, spas and recreational water parks. The goal of the DPH rules is to minimize illnesses and injuries at these facilities.

Why would I spend a perfectly good afternoon reading a 50 page regulation? For you, my dear readers, for you.

Parents of children who have been injured come to my blog looking for information. I want to provide the information parents need to make a decision about whether legal action is proper. I also want to provide parents with the best legal analysis of Georgia’s “pool rules.”

Every legal claim starts with an analysis of what duty was violated. There has to be a violation of some duty or there is no legal claim. It’s imperative to discover what duties apply. In the context of child injuries that occur in or near water, one important source of duties is the State you live in. In Georgia the State agency that is tasked with oversight of pools, spas, and recreational water parks is DPH and a working knowledge of the rules made by that agency will help you discover what duties might apply to your situation.

(Keep in mind that DPH is not the ONLY source of duties that might apply to your situation. Many Georgia counties have county pool regulations. If you want to know if your county has county-specific regulations, you can find out here (if your county is in white it has county-specific regulations that go beyond the State regulations). Federal law creates other duties (such as the Federal Pool and Spa Safety Act of 2007).

The rules and regulations created by DPH are long and complex. Most folks are not going to wade through them. Please consider this my effort to provide you with a crash course in water safety. I won’t hit upon every single rule but I will highlight those I think are most significant.

Before I jump in to details, let me alert you that the DPH rules are limited in scope – they do not apply to every body of water now existing in the State of Georgia. Some are expressly exempt: such as private pools and hot tubs/spas, apartment complex pools, country club pools, subdivision pools that are open only to residents of the subdivision and their guests, and there are a few other categories of pools/spas/baths that fall outside the scope of the application of DPH rules.

DPH rules DO apply to all other swimming pools, spas, and recreational water parks located within the State of Georgia. The rules prescribe minimum design, construction, and operation requirements that are intended to safeguard the health and safety of the public.

Here is my list of important rules that may create a legal duty and the violation of which may provide a basis for a successful legal claim:

  • Barrier Hazards – All outdoor swimming pools and spas shall be provided with a barrier. A barrier is a fence, wall, building wall or a combination thereof, which completely surrounds or covers the swimming pool or spa and obstructs access to the swimming pool, spa or recreational water park. One safety purpose of a barrier is to keep unsupervised kids out. The top of the barrier must be at least four feet high. All access gates must be self-latching. Pedestrian access gates must also be self-closing. When the release mechanism of the self-latching device is less than 4.5 feet from the bottom of the gate the mechanism must be located on the pool side of the gate and the gate and the barrier shall have no opening greater than one-half inch within 18 inches of the release mechanism (to keep little hands from reaching through). Installation of a safety cover over the pool does not exempt a pool operator from erecting a barrier. Installation of a safety cover over a spa DOES exempt the operator from the provisions of the barrier requirement.
  • Bather Load Violations – this has to with how many bodies are allowed in the pool at one time. The rules are a function of “square feet per user”. For instance, for pools with minimal deck areas (which means smaller than the pool surface area) the maximum number of people allowed in the pool at one time varies depending on what part of the pool you are considering. For shallow or wading areas there must be 18 square feet per bather. For the deep area there must be 20 square feet per bather. And for the diving area there must be 300 square feet per bather. Spas are handled differently: the maximum bather load should not exceed one person per nine square feet of surface area.
  • Permitting Violations – it is unlawful for a pool to operate without a valid operating permit. Permits are invalidated by a change in ownership. An operating permit cannot be valid for longer than twelve months. The permit must be prominently displayed as close to the main entrance as practicable.
  • Structural Design Violations – slip resistant surfaces are required in the pool and on the deck surfaces near the pool (all ladders/steps in and out of pools shall have treds with slip resistant surfaces), spas shall have handrails, abrasion hazards must be avoided, decks shall be sloped to prevent water pooling (minimum slope of decks must be 1/8” per foot, return inlets and suction outlets must be designed to not to constitute a hazard to bathers (bather entrapment is the concern).
  • Dimensional Design Violations – beginner’s areas may not adjoin deep areas, transition points between shallow and deep sections of pools must be visually set apart with a rope and float line, depth markers, and a four inch minimum width row of floor tile, painted line or similar means of a color contrasting with the bottom. Diving areas in pools shall conform to minimum water depths, areas, slopes and other dimensions.
  • Water temperature hazards – the owner/operator is required to routinely check the water temperature to ensure it does not exceed 104 degrees Fahrenheit. Obviously what is in view here is mainly spas and heated pools.
  • Warning Signs – various requirements for signage at pools and spas. Risk of fetus damage (hot water exposure in spas), risk of damage to small children and pregnant mothers (small children and pregnant women have lower hot water exposure limitations), risk of drowning warnings, risk of injury, risk of electric shock if electrical appliances are used in or near water or facilities are used during lighting storms. The words “No Diving” shall be permanently visible at the edge of the deck for water five feet (5′) or less.
  • Chemicals in the Pool/Spa – The rules provide for minimum and maximum dilution rates for the chemicals used in pools and spas. Too little disinfectant and harmful organisms may be present in the water, too much and bathers can be harmed/burned. There is a section on “fecal incidents” (poop in the water) and the rules require the pool be shut down for a period of time to ensure no diseases (such as Giardia infection) are spread.
  • Handholds, depth markers, rope and float lines – a handhold means a device that can be gripped by a user for the purpose of resting and/or steadying him/herself. Handholds are required around the perimeter of pools in areas where the depths exceed 3 feet 6 inches. Depth markers must be plain and conspicuous and there are a number of specific requirements for how and where they must appear.
  • Lifeguard training requirements & qualifications – If lifeguards are provided they must hold up to date, nationally recognized certification. They are responsible for the safety and supervision at the pool, spa, or recreational water park.
  • Lifesaving  equipment – requirements include, but are not limited to, a pole not less than 12 feet long, including a body hook; a throwing rope to which has been firmly attached a ring buoy; a telephone which is hard wired and affixed (not a cell phone) with posted names and numbers for emergency personnel.
  • Specials rules applying to water slides, flumes, wave pools, wading pools, zero-depth pools, falling-entry pools, etc . . . this section of the rules concerns recreational water parks. The rules in this area vary greatly depending on the type of water activity and so it is hard to summarize. Suffice it to say the owner/operator of a recreational water park has a duty to make sure staff closely monitor these activities. Wave pools that generate waves more than 3 feet in height must not continue for more than 15 minutes at a time. At all times when a water slide is open an attendant must be on duty at each falling-entry pool or runout and another attendant must be on duty at each entrance to a flume. Radio communication or some other acceptable communication method must be maintained at all times between the attendants. Only one person at a time may go through a flume on a water slide.
  • Inadequate training of pool manager/operator – it is required that each pool and spa covered by these rules be maintained by properly trained individuals. One kind of training that qualifies is the National Swimming Pool Foundation’s Certified Pool/Spa Operator’s Course.

So, if your loved one has been injured or killed and you believe one or more of the rules I’ve discussed in the post were broken, please call me. A phone consultation is free. The advice I give may be a help to you as you weigh your legal options.

Also, I’ve previously blogged about this topic and if that is of interest to you, you can find it here.

Sources –

Georgia Department of Public Health

Georgia Pool Rules

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. Many years ago, in what seems like another life, Pete was a lifeguard. His interest in water safety probably got its start way back then. He is a father to seven and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

 

Homeowner’s Insurance – What If My Child Is Hurt At Another Family’s Home?

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If your child sustains an injury while at another family’s house and there is a homeowner’s insurance policy in effect, your child’s injury claim will almost certainly be covered. Don’t delay in reporting the injury, however, because all policies have a provision that says if timely notice is not given to the insurance company they can deny coverage.

After making sure the injury is reported to the insurance company (preferably in writing), take time to assess what type of insurance claim will be appropriate. There are two types.

The first type of claim under homeowner’s insurance. Many homeowner’s insurance policies contain “Med Pay” or “Medical Payments” coverage. “Med Pay” is no-fault coverage, which means it is available to help compensate you for medical expenses related to your child’s injury no matter how the injury took place. In other words, there is no requirement that you show that anyone was negligent. If you can show that your child was injured on the other family’s property, you can recover under the “Med Pay” coverage.

“Med Pay” is sold in increments and a family may have $1,000, $2,000, $5,000, $10,000, $25,000, $50,000, or more coverage in place. The way this type of coverage works is that you submit your child’s medical bills to the homeowner’s insurance company as you receive them. Some medical providers will even handle the submissions for you. Or, if you prefer, you can have the insurance company mail you (or your attorney) a check for the cost of your child’s medical treatment. I recommend the latter approach because it allows you (or your attorney) to negotiate with your medical providers. Often providers will offer a discount to settle your child’s bill if you ask. You can save money that way and use what you save to pay for your client’s future medical care or other injury related expenses.

The second type of claim under homeowner’s insurance. The second type of coverage is bodily injury liability coverage. This pays only when the owner or someone in the owner’s family is found to be at fault. You have to be able to (usually with the assistance of an attorney) prove that the owner or representative of the owner did something (or failed to do something) that constitutes negligence and that negligence led to your child’s injury.

Even if the homeowner has admitted fault, keep in mind that is is very common for stories to change after a little time goes by. Do your child a favor and document everything. If the homeowner admits fault, get that on a recording or in writing. Get them to admit the specifics of what they did wrong. This will protect you in the event they later change their story (and you would be amazed at how often stories change.)

A bodily injury liability claim allows you to recover more damages than in a “Med Pay” claim. “Med Pay” pays only for your child’s medical expenses. A liability claim pays you for medical expenses, any related lost wages, human losses (pain and suffering), and any damages that flow from your child’s injury.

One question that you may have is whether your child can be held responsible for causing their own injury? This issue arises if your child was doing something that perhaps was a little foolish at the time they were hurt. The answer is: it depends. It depends on the age of your child.

In the Georgia common law there is a legal creature known as the “tender years doctrine.” This doctrine holds that children under a certain age can not be charged with contributory negligence (fault) or assumption of the risk. The younger the child, the less likely they can be found to have contributed to their own harm.

For example, there is a case that holds that a 4 year old child is presumed incapable of negligence. But there is also a case that holds that a child that is 5 years, 10 months old does not get that same presumption. Exactly when a child becomes capable of contributory negligence is not clear in the case law. It seems safe to say that if a child is older than 6 years they might be charged with contributory negligence. But the issue is one for a jury to decide and is very fact specific.

So essentially, with very young children (4 and under) it is clear that they can’t be blamed for hurting themselves. With children older than 6, it is less clear. It will come down to what the courts have called a “subjective, individual standard of care for children.” In other words, the court or jury will have to examine the capacity of the child in question and their behavior and make a judgment call about whether they were capable of preventing the harm to themselves or if the adult in the situation should be charged with full or partial responsibility.

An example from a recent case I handled may help clarify how the doctrine of tender years works in practice.

My client, a 5 year old girl, was dropped off at the home of the Defendant. The Defendant had agreed to babysit my client.

The previous Sunday was Easter Sunday and my client’s mother had pressed out the child’s hair for the occasion. When the mother dropped her daughter off at the Defendant’s house, her hair was up in a ponytail. 

On the evening of the loss, the Defendant loosed the pony tail and let the girl’s hair out and shortly after gave her a lit candle to take into the house (the Defendant was outside talking to a friend on the phone). My client went inside the house unsupervised and while inside her hair caught on fire.

What happened next shocks the conscience. After this 5 year old child was burned, the Defendant told no one, called for no medical attention, and hid the fact from her own husband (by putting panty hose on the girl’s head to conceal the burns). The Defendant put the child to bed and kept her quiet during the night (while she fussed) by giving her Motrin.

All that night, the following morning, and throughout the next day, the Defendant again told no one and called for no medical attention. She did not inform the child’s mother. It was not until nearly 24 hours later, when the child’s mother returned, that her mother discovered the burns. Immediately she called 911 for an ambulance.

In that case, the insurance company didn’t even bring up the tender years doctrine. But, had my client been 7 or 8 or older, the insurance company might have.

One final piece of information. Because “Med Pay” claims are no-fault generally you do not need an attorney if that is the only type of claim you plan to bring. Generally the homeowner’s insurance company will pay the bills up to the limits of coverage without much of a fight. There are exceptions but generally you should be able to handle that without the expense of an attorney. If, however, you believe there was fault, it would be worth your while to consult with an attorney. Keep in mind that the attorney fee on a bodily injury liability claim is paid from the settlement, not from you or your child, and that if there is no recovery there is no attorney fee. So it is a risk free call to the attorney.

If your child has been injured by the negligence of another and you believe there may be grounds for a bodily injury liability claim, please call me. I have been representing families for over 17 years right here in Georgia and would be honored to talk with you. 

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Attorney Pete Pearson practices Child Injury and Wrongful Death Law in the State of Georgia. Located in the Greater Atlanta Metro Area, he is available to help families all over the State of Georgia. He can be contacted directly at Six-Seven-Eight 358-2564 or by Email.