Swimming Pool Drowning
Florida has one of the highest rates of swimming pool use in the country, with researchers at Florida State University tallying more than 1.1 million permitted residential pools in 61 of its 67 counties, as reported by property appraiser data. This data excludes public pools, above-ground pools and temporary swimming structures. Many more pools exist that aren’t permitted, thus possibly failing to meet the requirements of the state’s Residential Swimming Pool Safety Act.
At Associates and Bruce L. Scheiner, Attorneys for the Injured, our premises liability attorneys know the prevalence of pools in Florida, combined with year-round sunshine, make it a deadly state for such accidents. It’s also undoubtedly the reason Florida has the highest rate of drowning deaths for children under 14 in the nation. Of these, 60 percent occur in residential swimming pools.
Many of these incidents can be attributed to a lack of pool safety features, which makes the pool an inherently unsafe condition on one’s property. In Lee County, researchers tallied a total of 62,481 permitted residential pools. In Collier, there were nearly 35,000, and in Charlotte, there were more than 25,000. The risk of potential injury at these sites, particularly for young children under the age of 5, is huge.
When a drowning or near-drowning occurs, property owners can be held liable for damages under the premises liability theory of negligence. If the victim is a child, it doesn’t matter if he or she was trespassing at the time of the accident, as property owners can still be responsible under the “attractive nuisance” doctrine.
The Florida Department of Children and Families reports the state loses the equivalent of three preschool classrooms to drowning every single year. Many more will suffer profound and permanent injuries, most notably brain damage due to oxygen deprivation. These kinds of conditions can require lifelong medical care and services. Even considering Florida’s prevalence of pools, this kind of figure is unacceptable.
Hospital admission charges for annual, non-fatal drowning incidents in Florida is roughly $16 million, according to the Florida Department of Health. Of those, commercial insurance pays for about one-third. That means the rest is either covered under residential homeowner’s insurance or is paid out-of-pocket by the victim’s family.Florida’s Residential Swimming Pool Safety Act
Florida legislatures, recognizing the devastating toll of accidental swimming pool drowning—particularly among small children and medically frail elderly persons—passed the Residential Swimming Pool Safety Act, codified in F.S. §515.21-37. The measure went into effect October 1, 2000, and requires all residential pools built after that date to meet the following requirements:
- The pool has to be isolated from access to the home by an enclosure or barrier that is at least 4-feet high with no gaps, openings, indentations, protrusions or other structural components that might allow a small child to crawl under, squeeze through or climb over;
- Pool barriers have to be placed around the perimeter of the pool, and have to be separate from any wall, fence or other enclosure surrounding the yard, unless the wall, fence or enclosure is on the perimeter of the pool, and is thus serving as part of the barrier;
- The barrier has to be placed far enough away from the edge of the water so as to prevent a small child or medically-frail older person from immediately falling into the water if he or she does manage to get inside the barrier;
- Above-ground pool owners need to make sure any ladder, steps or other means of access can be secured, locked or removed;
- If the pool lacks a barrier, it must be equipped with an approved pool safety cover. Alternatively, property owners can choose to equip all windows and doors providing direct access to the pool with exit alarms or self-closing, self-latching devices that are at least 54 inches above the ground.
Property owners who fail to affix at least one pool safety feature as required may not only face civil liability, they could also be found guilty of a second-degree misdemeanor. Property owners can avoid criminal penalties if they repair the problem within 45 days of arrest and also attend a drowning prevention course.
Worse than that, however, is the fact that failure to install the right pool safety features can result in serious injury or death to a child or someone else.
When pools don’t meet these criteria and a drowning subsequently occurs, violation of the law can be presented as strong evidence of property owner negligence. However, our personal injury lawyers recognize it is still critical to prove that the lack of safety features proximately caused the injury or death.Swimming Pool Owner Liability and Attractive Nuisance
In many kinds of premises liability actions, a sufficient warning of the danger can be adequate for the property owner to avoid responsibility. Around a pool, this might be a sign warning parents that no lifeguard is on duty or a requirement that children be supervised at all times.
However, the law recognizes that children, because of their youth and inexperience, may not be able to comprehend or appreciate the danger associated with entering a swimming pool absent appropriate supervision.
An “attractive nuisance” is defined as a dangerous condition on a property that is likely to attract young children. Some examples set forth in previous case law have included abandoned appliances or trampolines, but swimming pools are one of the top forms of attractive nuisance in Florida.
The state Legislature, in recognizing this special kind of risk, provided an “attractive nuisance” exemption to F.S. §768.075, which generally gives property owners immunity for injuries caused to trespassers. That means that while property owners don’t usually owe any duty to protect those who come onto their property without permission, they do have to recognize that a pool could draw a child onto the site, and measures need to be taken to protect them.
Erecting the appropriate barriers and installing adequate locks, alarms and pool covers—as required by state law—are the best way to do this. Although constant supervision is critical to reducing the number of child submersion incidents, when lapses do occur, proper pool safety features can serve to deny, delay or immediately detect unsupervised entry into a pool area.
Failure to enact pool safety features resulting in serious injury or death is almost certainly grounds for a Fort Myers premises liability lawsuit.
If you or a loved one has suffered a swimming pool accident in Southwest Florida, contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.
Call 800-646-1210 for a Free Consultation