For most of us, when we think about a day by the water, we imagine fun: relaxing in a hot tub, sunning on a lounge chair, playing “Marco Polo” in the pool with the kids. Unfortunately, everything that’s fun about the water is like the tip of a sizable iceberg. What lurks beneath the surface is the grave risk of a drowning accident.
From unsupervised children to drunk adults, there are countless ways a day by the pool, in a lake, or out at the beach can go awry, leading to serious injury or even claiming a life. Getting the money you deserve can get complicated, so you should be prepared to discuss your case with an experienced personal injury attorney. In this article, we will give an overview of drowning accidents and cover the basics of how the law deals with compensating victims.
Why Do Drowning Accidents Happen?
Accompanying the many ways to have fun by the water are the countless hazards that can lead to a drowning accident. The Centers for Disease Control and Prevention (CDC) lists the following seven factors as most significantly affecting drowning risk:
- Lack of swimming ability
- Lack of barriers
- Lack of close supervision
- Failure to wear life jackets
- Alcohol use
- Seizure disorders
To put these into context, imagine a typical family barbecue by the pool. The adults are drinking and socializing while the kids are playing in and around the pool. Can you recognize the risk factors likely at play?
- Alcohol use: The adults are drinking, putting both them and the children they are supposed to be monitoring at an increased risk of drowning.
- Lack of barriers: Most family barbecues will not feature a barrier actively regulating access to the pool, which means young children and others not well-suited for such unsupervised access to the water could end up drowning.
- Failure to wear life jackets: You’d be hard pressed to find a pool-side family barbecue featuring many life jackets.
- Lack of swimming ability: In 2014, the American Red Cross reported survey results suggesting more than half of all Americans can’t swim or perform basic swim safety skills. Your average family barbecue likely won’t stray far from the national average.
- Lack of close supervision: If the adults are drinking, there may not be much effective supervision.
- Seizure disorders: The CDC reported that in 2015, about 3.4 million people in the U.S. had epilepsy, so it is not far-fetched to suggest someone at a large outdoor gathering might have a seizure disorder.
As you can see, when a body of water is near, there is a significant risk of drowning even under the most “normal” of circumstances. And these are just the most common risk factors. There are numerous other circumstances that can lead tragedy to strike, making bodies of water far more dangerous than we are usually willing to acknowledge.
Where Do Drowning Accidents Happen?
The places where a drowning accident can happen are as diverse as the risk factors. Drowning accidents happen in most bodies of water, including:
- Bathtubs (primarily infants)
- Private swimming pools (homes, apartment complexes, hotels)
- Public swimming pools
- Water parks
Types of Drowning Accidents: Fatal and Non-fatal
There are two types of drowning accidents: fatal and non-fatal. This distinction becomes significant when seeking compensation, as different legal rules will apply depending on the accident’s outcome. A fatal drowning accident is one that ends with the victim losing their life. A non-fatal drowning, also commonly known as a “near-drowning accident,” is characterized by the victim surviving.
While the tragic consequences of fatal drowning accidents are well known, the harms wrought by non-fatal drownings are frequently overlooked. Though it is generally good news when a drowning victim survives, unfortunately, there’s more to the story. The CDC reports that over 50% of near-drowning victims treated in hospital emergency departments require “hospitalization or transfer for further care.” These victims are often left with life-altering injuries, such as traumatic brain injury (TBI), heart damage, and serious tissue damage. Non-physical issues like emotional distress, anxiety, and PTSD can also result from a near-drowning experience.
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What Are Your Options for Compensation?
If you or a loved one have been involved in a drowning accident, you may be eligible for compensation. Your options are:
- Making an insurance claim
- Filing a lawsuit
- Reaching a settlement
Making an Insurance Claim
Making an insurance claim means filing a claim for compensation with the insurance company of whoever you consider to be at-fault for causing the drowning accident in question. By filing the claim, you are notifying the insurance company that they are financially responsible for the resulting injuries because their policyholder played some role in causing the drowning accident. After you initiate your claim, the insurance company will assign a claims adjuster to your case. The adjuster will investigate your claim and determine whether the insurance company is responsible for paying you.
The insurance route is a less common path to compensation than filing a lawsuit for a couple of important reasons. First, for you, the injured person, to make an insurance claim, the at-fault party must have an insurance policy covering liability for drowning accidents. And often they do not, which means that in many cases, the insurance option is not on the table to begin with. Second, even if the at-fault party has the right insurance coverage, many people bypass the insurance option because of their discontent with the claims process, specifically, its built-in conflict of interest. This conflict arises because the person responsible for investigating and deciding your case, the claims adjuster, works for the insurance company, who will be financially responsible if the adjuster finds in your favor.
Filing a Lawsuit
The more common path to compensation involves filing a lawsuit against the at-fault party. When you file a lawsuit, you are basically telling a court that the person or entity you are suing was responsible for the drowning accident, so they should be held liable for the resulting damages. The court will evaluate the strength of your case at a trial and determine whether to make the allegedly at-fault party compensate you for your damages.
There are two general types of lawsuits you can file, depending on the outcome of the drowning accident. As we mentioned earlier, whether a drowning accident was fatal or non-fatal is an important legal distinction. If the drowning accident was fatal, you will file a “wrongful death” lawsuit. If the drowning accident was non-fatal, your lawsuit will be a “personal injury” claim. Which lawsuit you ultimately file is significant because it will affect whether you are eligible for compensation and, if you are, what type of compensation you can recover. So let’s take a closer look at both.
Wrongful Death Lawsuit
New Jersey defines a “wrongful death” as when a death is “caused by a wrongful act, neglect or default of another.” A wrongful death lawsuit can be brought by the deceased person’s estate whenever the deceased person would have been otherwise able to bring a lawsuit based on their injuries had they not resulted in death. In a wrongful death lawsuit, the estate seeks compensation from the party at-fault for “wrongfully causing” the deceased person’s death. This compensation is usually intended to support eligible surviving family members.
Who Can Recover?
The first important question is who is eligible for compensation in a wrongful death action. At the outset, we should emphasize that you don’t have to be the person filing the lawsuit to be eligible for compensation if the lawsuit is won. Ordinarily, the executor or personal representative of the deceased’s estate will file the wrongful death action. The damages are then divided among surviving family members financially dependent on the deceased person when they died or those entitled to inheritance. Eligible family members may include the following:
- Other people who are shown to be “actually dependent”
An important caveat is that being eligible does not guarantee you will be compensated. Among these eligible family members, the law sets out the following ranking in terms of priority (highest to lowest):
- Spouse and children
- Siblings (and their descendants)
This is, of course, an oversimplification. You should consult an attorney, who can evaluate your specific circumstances and determine whether you and others are eligible.
What Damages Can Be Recovered?
Wrongful death lawsuits also have specific rules concerning what kinds of damages can be recovered. A wrongful death lawsuit is meant to compensate the surviving family members for what they lost when their family member passed. Recoverable damages include the following:
- Lost financial support (what the deceased family member would reasonably be expected to have earned)
- Lost companionship, care, comfort, and guidance
- Lost value of household services done by the deceased family member (childcare, chores, etc.)
- Reasonable medical, funeral, and burial expenses
Notably, under a wrongful death lawsuit, you may not recover compensation for emotional distress or punitive damages (damages intended to punish the at-fault party).
Personal Injury Lawsuit
A personal injury lawsuit is a legal action brought by someone personally harmed by someone else’s acts or omissions (failures to act). The purpose of the lawsuit is to recover compensation from the at-fault party.
Who Can Recover?
The claimant in a personal injury lawsuit is ordinarily the person who was harmed or injured. There are less common circumstances where someone with the proper legal relationship with the injured party (power of attorney, parent, guardian, etc.) can bring a personal injury lawsuit on their behalf. This usually happens when the injured party is incapacitated or otherwise unable to bring the lawsuit themselves. However, filing the lawsuit does not necessarily make you eligible for the resulting compensation if the claim succeeds. The person recovering compensation in a personal injury lawsuit will almost always be the person who was harmed or injured.
What Damages Can Be Recovered?
The damages in a personal injury lawsuit are intended to compensate the victim for their losses. These losses can include things like:
- Lost wages
- Medical expenses
- Pain and suffering
- Mental and emotional distress
- Travel expenses
- Household assistance
Reaching a Settlement
Whether you make an insurance claim or file a lawsuit, there is a strong likelihood that your case will “settle.” A “settlement” is when the parties to a legal dispute strike a bargain where the party accused of being at-fault agrees to compensate the injured party, and in exchange, the injured party promises to not pursue the claim any further. Cases frequently end in settlements because going to court is time-consuming and expensive, so both parties look to resolve the case quickly.
Who Is Responsible for a Drowning Accident?
This is a tricky question that will almost always require a full legal assessment of the facts. The problem is twofold. First, many different parties can be responsible for a drowning accident:
- Homeowners: New Jersey’s state laws view residential pool ownership as a privilege, and homeowners can be held responsible for damages resulting from failures to maintain their pools in a safe condition.
- Other Private Pool Owners and Operators: Similar to homeowners, other private pool owners and operators such as gyms and hotels can be held responsible if their pools are unreasonably safe and a drowning accident results.
- Public Pool Owners and Operators: The same reasoning applies to owners and operators of public pools.
- Public/Private Pool Employees: Lifeguards are often sued for being negligent in their duties to ensure some level of safety for those in and around the pool.
- Boat Owner or Operator: When drowning accidents happen in connection to boating activities, irresponsible boat operators, such as those that drive a boat drunk, can be held responsible for a drowning accident. The same goes for boat owners when an unsafe condition on the boat causes a drowning accident.
- Parents or Caretakers: When a child drowns, the person responsible for their care at the time can be held responsible. This can be the parents themselves or someone like the babysitter or nanny.
Determining who’s responsible requires examining all the relevant facts. Second, despite there being many possible at-fault parties, one will only be held liable if they are considered responsible under the relevant legal standards. To determine who can be held responsible, your attorney will examine the specific facts of your case and compare the “suspects” and their actions with how the law thinks about fault.
Take, for example, the real-life case Leonard v. City of New Brunswick. Mrs. Leonard sued the City of New Brunswick when her eleven-year-old son, Devine, tragically drowned in the Raritan River at Boyd Park. Devine and a friend had been spotted walking in the middle of the river during low tide; both were found dead the next day.
Leonard claimed the City was negligent because the park “created a dangerous condition by not restricting access to the river.” She also pointed out that there were no warning signs concerning the changing tides of the river. The City, however, was able to escape liability because of N.J.S.A. 59:4-8, a law that says public entities are not liable for injuries caused by conditions on public property that is “unimproved,” meaning unchanged from its natural state. The court reasoned the City could not be held liable because the drowning was caused by the river, and the river was “unimproved property.” So, in this case, the City seemed somewhat to blame for failing to put up proper signage, yet the law disagreed, holding that the City is not accountable for injuries on unimproved public property.
The challenges associated with determining who is at fault are also well illustrated by situations where multiple parties could reasonably carry the blame for a drowning accident. This actually happens more often than you’d think.
Consider this hypothetical situation. Imagine a 12-year-old child fatally drowns at an uncle’s house. Suppose the child was being watched by the nanny at the time. But the child only got into the pool because the uncle had failed to install a barrier, which is required by New Jersey’s state law. Both the uncle and the nanny agree that the child was an excellent swimmer. The uncle thinks the child only drowned because the pool light came loose, causing electric shock. Who is responsible?
- The absent minded nanny?
- The irresponsible uncle?
- The company who installed the pool light?
- The manufacturer of the pool lights?
Without further investigation, it’s hard to say. The point is that many people could conceivably carry responsibility for a drowning accident, but at the same time, it’s unclear who of those people can be held legally responsible. It is really a matter of examining the facts and how they square with the law.
When Is Someone At-fault for a Drowning Accident?
Whether you make an insurance claim, file a wrongful death lawsuit, or file a personal injury lawsuit, the legal framework for deciding whether the other party is at-fault is the same. There are two legal theories as to why someone might be at-fault for a drowning accident: intentional tort and negligence. Let’s look at each one more closely.
“Intentional tort” is the technical legal term in civil court for a wrongful intentional act. Someone can be at-fault for a drowning accident if the accident was a result of them committing a wrongful intentional act recognized under the law. The law recognizes multiple intentional torts. Some common ones are:
- False Imprisonment
- Trespass to land
The one relevant to your case will depend on the facts, but drowning accidents resulting from intentional acts most commonly relate to battery. Once your attorney has determined which intentional tort best fits the other party’s conduct, they will then have to prove the elements of that tort for the court to find the other party liable.
Imagine, for example, that Bill pushes John in the pool, and John drowns and dies. The attorney representing John’s estate would first have to determine which intentional tort best fits Bill’s conduct. Here, that is the intentional tort of battery. Someone commits a battery when they intentionally make “harmful or offensive contact” with someone else. That seems to fit Bill’s conduct, pushing John in the pool. Then, in a wrongful death lawsuit based in the intentional tort of battery, John’s estate would have to prove the elements of battery:
- Intent: Bill acted with the purpose of pushing John in the pool.
- Contact: Bill pushed John in the pool.
- Contact was “harmful or offensive:” Pushing John in the pool caused him harm, or a reasonable person in John’s shoes would find being pushed in the pool by Bill offensive.
If John’s estate can prove all three elements, Bill will be held liable for John’s wrongful death. The pattern is the same for any other intentional tort, though different torts will have different elements that need to be proved. For your purposes, you don’t need to be concerned with the technical legal requirements; your attorney will take care of that. You just need to understand that someone can be legally at-fault for a drowning accident if it results from their intentional wrongful act as long as that act is recognized under the law and what they did satisfies the legal elements of that act.
A final clarification: a common misconception people hold when they learn of intentional torts concerns the word “intent.” People often incorrectly believe that for someone to be liable for having committed an intentional tort, they have to have intended the outcome. So, in the drowning context, people might think Bill is not liable for John’s drowning unless he meant for John to drown. This is simply untrue. With intentional torts, the law asks whether the person intended to commit the act, not whether they intended the outcome of the act. Bill could have intended only to scare John. Maybe he never imagined John would drown in the pool. This doesn’t matter. As long as Bill intended to push John, he is responsible for the consequences.
The more common legal theory in a drowning accident lawsuit is the claim that the other party is at fault for causing the drowning accident because they were negligent in a way that caused the accident. “Negligence” is a technical legal term roughly equal to the concept of carelessness. The basic idea is that the law imposes certain responsibilities on us to be careful. A legal responsibility to be careful is known as a “duty of care.” When we fail to be careful where a duty exists, the law says we are responsible if our carelessness causes someone else to be harmed. From that explanation, we can glean four elements:
- Duty of care: There is a legal responsibility to be careful in some way.
- Breach of duty: The accused person has failed to be careful in the way the law requires.
- Injury: Someone suffered an injury.
- Causation: The accused person’s failure to be careful caused that person’s injury.
Consider this simple example. James leaves his two-year-old son, Joe, home with their nanny, Marissa. Marissa mistakenly leaves the pool gate and back door open, and Joe wanders out to the backyard where he tragically drowns and dies. James’s wrongful death lawsuit against Marissa would probably be an action in negligence. To win in court, James would have to prove all of the following elements:
- Duty of care: That Marissa had a duty to keep Joe restricted from accessing the pool.
- Breach of duty: That Marissa breached this duty when she left the pool gate and back door open.
- Injury: That Joe died.
- Causation: That Marissa’s breach of this duty caused Joe’s death.
James would also have to demonstrate that he has actual damages that can be lawfully compensated.
Another common example of the negligence theory in action in the drowning context is “premises liability.” Property owners can be held liable when their negligence in maintaining their property causes injury to someone who was lawfully on their property. The elements of negligence are essentially the same, but the “duty of care” in premises liability cases usually has something to do with keeping the property free of dangerous conditions.
A common premises liability scenario in the drowning context is a drowning victim’s estate suing a homeowner after a drowning accident occurs in the homeowner’s private pool. This was what happened in the New Jersey case of White v. Astacio. Mr. White sued the Astacios after his adult son, Dafiq, fatally drowned in their pool. The Astacio’s had allowed Mrs. Astacio’s sister and brother-in-law to host a party in their backyard. Dafiq, one of the guests, decided to jump into the pool. After jumping in, Dafiq appeared to struggle for a minute or so, prompting the brother-in-law to jump in and bring Dafiq to the surface. Both he and the EMTs attempted CPR, but it was too late. Dafiq unfortunately died.
Mr. White’s wrongful death lawsuit was based on a theory of premises liability and negligence. He argued the Astacio’s were liable because they owed Dafiq a “duty to use reasonable care to keep the premises free from dangerous conditions.” According to Mr. White, the Astacio’s breached that duty by failing to have an easily accessible “shepherd’s crook,” a long pole used to pull people from a pool, and by failing to assign someone to watch the water while guests were in the pool. The court ultimately disagreed with Mr. White’s arguments. Their main reason was that under the circumstances, there was no need for a shepherd’s crook or designated water watcher. This is because when Dafiq drowned, the brother-in-law was watching him and immediately jumped in to grab him; the shepherd’s crook and water watcher would have made no difference. Though Mr. White was unsuccessful in this instance, under different circumstances, property owners like the Astacios are frequently held liable for drowning accidents under a theory of premises liability.
An important concept related to negligence is “comparative fault,” also known as “comparative negligence.” The basic idea is that the law, recognizing that fault is rarely absolute, allows insurance adjusters and courts to adjust how much the at-fault party must compensate the victim proportionate to each party’s relative fault.
Here is an easy example in the drowning context. Imagine Jim suffers a traumatic brain injury after he slips by the pool at his hotel and has a near-drowning accident. Suppose the hotel is at-fault because they negligently left a slippery substance on the ground next to the pool. But, the hotel tells the court that Jim is also to blame because he was drunk, causing him to absent-mindedly slip and fall on the substance; all the other, sober guests managed to avoid the clearly slippery area.
If the court agrees that Jim is somewhat to blame because he was also negligent, they will assign him a percentage of blame, say 15%. His damages will then be reduced by that 15%. An interesting question is what if the claimant is found to be more to blame than the person they are suing? The answer lies in New Jersey’s take on comparative fault, known as a “modified comparative fault rule.” New Jersey’s version of comparative fault holds that if the claimant is found to be more than 50% to blame for the accident, they can’t recover compensation.
Will You Need an Attorney?
We hope that by this point in the article, it’s clear that you will need to consult a personal injury attorney to give yourself the best shot at recovering the compensation for a drowning accident in New Jersey. Below are just a few key aspects of your drowning accident case that will require the expertise of a capable attorney. See our in-depth article here for more information on why you should hire an attorney.
- Determining the viability of an insurance claim
- Holding the insurance adjuster accountable
- Providing sound legal advice
- Navigating the legal system
- Persuading the court
- Negotiating a settlement
Frequently Asked Questions
It depends. There is no definitive answer to this question because it will depend mainly on two factors: what the liability waiver said and the circumstances of the drowning. If you or your loved one signed a liability waiver and you want to sue for a drowning accident, you should consult an attorney and inform them of the waiver. Your attorney can best evaluate whether your claim is still viable in light of the waiver.
Homeowner’s insurance policies do typically cover drowning accidents, mainly under the general liability coverage that covers any accidents that might occur on one’s property. Insurance companies may recommend or require that homeowners with pools purchase a higher amount of liability coverage, since the standard coverage amount would likely be insufficient to cover the damages resulting from a drowning accident.
In a wrongful death lawsuit, two categories of surviving family members are eligible for compensation: those financially dependent on the deceased person when they died and those entitled to inheritance from the deceased person. If you fall into either category, whether you receive any compensation may yet depend on where you fall in the priority rankings. Spouses, children, and parents are usually given priority. The rules on this are complicated, so you should consult an attorney to determine your eligibility.
Yes, you may sue a public entity for a drowning accident at a public pool. However, the government may be “immune,” meaning protected from liability, depending on the circumstances. For example, public entities under New Jersey law are not liable under a theory of premises liability when an accident occurs on public property unchanged from its natural state.
Yes, you may be eligible for compensation through your loved one’s life insurance policy, assuming that you are a beneficiary of their policy and that the policy covers drowning accidents. You may want to consult an attorney for assistance, as life insurance companies are known to use certain tactics to avoid having to pay out on a policy, such as disputing the cause of death. You may need to take legal action to force the insurance company to honor the policy.
Drowning Accident Statistics
Drowning accidents occur at an alarming rate. The Centers for Disease Prevention and Control (CDC) reports that between the years 2005 and 2014, the United States saw approximately ten drowning deaths per day. This figure does not include boating-related drowning accidents, which accounted for an additional 332 deaths in each of those years. Unfortunately, young people are most at risk. About one in every five people who die from accidental drownings are children aged 14 or younger. And for each child drowning death, “another five [children] receive emergency department care for nonfatal submersion injuries.”
Who Should You Contact?
If you or a loved one have been involved in a drowning accident, we extend our deepest condolences. Drowning accidents have the capacity to wreak havoc on undeserving families, making it all the more infuriating when they are caused by another’s intentional acts or carelessness. At Rosenblum Law, our dedicated personal injury attorneys have spent decades leveraging their experience and legal expertise to help drowning accident victims and their families secure the compensation they justly deserve. Don’t hesitate to take the crucial first step. E-mail or call 888-815-3649 for a free consultation.