Unfortunately, residential swimming pool accidents are common, and the victims are often children or adolescents. The homeowner in these cases may be liable based on a number of theories, including:
Attractive nuisance imposes a duty on the landowner to take reasonable precautions where certain elements are met. Courts may permit use of the attractive nuisance doctrine to hold owners of land liable when children are killed or injured in swimming pools.
For example, the parents of a 2 year-old boy may be able to recover from homeowners who had a pool in their backyard with a diving board and slide. Neither the yard nor the pool was fenced in or barricaded in any way. The homeowners were held liable because children were known to be in the area, they did not erect a fence to protect children, despite knowing that the presence of a playground-type slide was likely to attract children.
Other courts have used negligence to hold landowners liable for injuries to children in their swimming pool. Homeowners can be negligent for failing to restrict access to the pool by a fence or barricade, often in violation of a local ordinance or statute.
For example, if a 7 year-old boy drowned in a neighbor's pool, the neighbor may be found liable for negligently constructing a fence which had gaps large enough to allow the boy to enter the pool.
Willful Or Wanton Misconduct
Landowners can be liable for willful or wanton misconduct for conditions of their premises which allow children to gain access to the property.
For example, homeowners who fail to erect a fence with a self-closing and self-locking gate, as required by permit when they constructed the pool, may be found liable for infliction of intentional, willful and wanton injury and the creation of a trap if a 5 year-old boy enters and fell through the ice on their pool.
Landowners have been held liable for a child's injuries because of the absence or inadequacy of supervision in the use of or access to the swimming pool.
For example, the mother of a 2 year-old girl may be able to recover for inadequate supervision when her daughter drowned in a neighbor's pool. Assume the mother left her child to play with the neighbor's child in the neighbor's yard. The yard had a swimming pool and various playground equipment. After the children had been in the yard about half an hour, the neighbor announced that she was going to visit a friend and instructed the children to not go near the pool. Upon her return, approximately 30 minutes later, she finds the daughter's body floating in the pool. This will likely leave the neighbor liable.
Should I Consult An Attorney?
Child drownings are always very difficult and emotional times. Whether you are the parent of a child who drowned in a pool or you are the owner of a property where a child has drowned, an attorney can help. A personal injury attorney can help explain the law and assert your rights.