- Overview of Swimming Pool Negligence
- FAQ about Swimming Pool Negligence
- Signs of Swimming Pool Negligence
- How to Prove a Negligence Claim
Overview of Swimming Pool Negligence
What is negligence? Negligence is an area of tort law that creates liability for people that fail to take reasonable care in avoiding injury or loss to another person. Generally, ordinary negligence occurs when someone does not act as a reasonable person would in certain circumstances. To prove a case for negligence, one must show that (1) defendant owed a duty to the plaintiff; (2) that duty was breached; (3) the defendant’s actions (or inactions) caused the plaintiff’s injury; and (4) the plaintiff was actually injured in some way.
Swimming pool negligence usually stems from an area of law known as premise liability because swimming pools are considered part of the premises they are located on. Premise liability is the legal notion that all property owners owe at least some level of reasonable care (i.e. duty) to visitors of their property.
This notion also applies to pools—you must take some level of care in protecting those that use your pool. To prove swimming pool negligence, you must show the same elements as basic negligence (duty, breach, causation, and injury). The specific “duty” that is owed differs depending on whether you are a public or private pool owner and the “type” of person that uses your pool (visitors vs. trespassers).
Under Florida law, there are two types of visitors, and respectively, there are different standards of care (i.e. duties owed) for each. Broken down to the simplest terms, the two types of visitors are people that are wanted on the property and people that are not wanted on the property.
First category of visitors: invitees and licensees
The first type of visitor is split up again into two types: invitees and licensees. Both are people that are allowed on the property either because it is open to the public or because they were invited to enter. The duty owed to this group of visitors is the duty to correct and warn of any dangers that the owner knows or should know of by reasonable care that the visitor would not know of or be able to discover through reasonable care. Here are some examples of this:
- If the pool owner knows that there is a cleaning chemical in the pool that is dangerous to humans, but the chemical is clear and it cannot be seen or smelled or detected in anyway by a visitor, then the pool owner has a duty to correct and warn of this danger. If he breaches that duty and the visitor is harmed by the chemical, then the pool owner may be liable for swimming pool negligence.
- Similar example as the one above, but instead, the pool owner didn’t specifically know what chemicals were in the pool; he only knew that workers came over to put chemicals in the pool to clean it. The pool owner “reasonably should’ve known” that their visitor wouldn’t be able to see the dangerous chemicals.
Second category of visitors: uninvited licensees and trespassers
The second type of visitor is the “unwanted visitor,” which are known as uninvited licensees and trespassers. The only duty a pool owner owes to these people is to refrain from willful or wanton injury. Remember, pool owners do have the general duty to maintain their premises in a reasonably safe condition to avoid injuries to invited guests, but there is no duty to these “unwanted” visitors (just don’t purposely injure them).
There is one exception to the law that pool owners do not owe a duty to trespassers known as the attractive nuisance doctrine. An attractive nuisance is any object or condition on the land that is likely to attract children who are unable to appreciate the danger of the object or condition. Examples of the attractive nuisance doctrine include swimming pools, trampolines, and tree houses. Thus, a pool owner may actually still be liable to trespassing children in certain circumstances.
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FAQ about Swimming Pool Negligence
What are examples of swimming pool accidents that cause a basis for a negligence claim?
Here are a few examples of accidents that can occur in a public or private pool that can lead to a negligence claim:
- Slip and fall accidents by the pool
- Injury from the diving board
- Infection or rash
- Broken bones or lacerations
How much can you sue for swimming pool negligence?
This depends on the specifics of your case. In a claim for ordinary negligence, a plaintiff may be awarded compensatory damages. Compensatory damages compensate you for your losses, so the amount of money you get should compensate you for any injuries or harm suffered. This can include any past, present and future expenses incurred, including medical care, lost earnings, and loss of future earnings.
If the claim arises to gross negligence, you may be able to receive punitive damages. Gross negligence is like ordinary negligence in that it also projects liability onto those who do not act reasonably. However, gross negligence goes further than ordinary negligence because it only occurs when the person (defendant) acts so unreasonably that it is almost intentional. Gross negligence is a conscious and voluntary disregard of the need to use reasonable care.
Punitive damages are different because it is money paid to the plaintiff by the defendant in order to “punish” the defendant. Punitive damages are not to reward the plaintiff, but to deter the defendant from repeating his or her reckless conduct. However, there are limitations to punitive damages. In Florida, there is a cap on the amount of punitive damages available in a personal injury lawsuit. Punitive damages may not exceed the greater of:
- Three times the amount of compensatory damages awarded or
- The sum of $500,000. (See the full text of the law here).
What Florida laws are in place regarding swimming pools?
To prevent unintentional drowning and other pool-related injuries, the Florida legislature passed a law that created a set of safety requirements for all swimming pool owners in Florida. This law is known as the Florida Residential Swimming Pool Safety Act.
Important features of this Act include:
- All swimming pools must meet certain safety features;
- All swimming pools in Florida are required to be surrounded by a barrier that meets certain conditions;
- Gates that provide access to the pool must open outward away from the pool and be self-closing with a self-latching lock device.
Signs of Swimming Pool Negligence
Here are some possible signs of swimming pool negligence to look out for:
- Improper barriers: fencing, gates, etc.
- Lack of barriers
- Lack of safety cover
- Easy, open access to the pool
- Poor maintenance of the pool: dirty, cluttered deck, etc.
Remember, just because one of these is true, that does not automatically mean you have a case for swimming pool negligence. Speak with a lawyer to discuss the specifics of your case to determine whether or not there was negligence.
How to Prove a Negligence Claim
In any tort claim, there are elements that must be proven to the court to establish the defendant’s liability (i.e. tort liability). Negligence falls under the umbrella of tort law. Thus, in order to prove that a defendant was negligent, you must prove all four elements of negligence:
- breach of duty
You must prove all four and not just one or two of the elements.
The first element that must be proven is whether the defendant owed a “duty of care” to the plaintiff. The duty of care is a standard in tort law to act as a reasonable person. This duty of care can be owed by a person or a business. For example, landlords who owe a duty of care to those who come on the property, and business owners who owe a duty of care to those who enter the business, including employees and customers.
Breach of Duty:
The second element that must be proven is that the duty of care was breached by the defendant acting (or failing to act) in a certain way. For instance, if a landlord breaches the duty of care by failing to install handrails on a staircase, then the second element has been met.
The third element, causation, is that the plaintiff must prove that the defendant’s actions (or inaction) caused the plaintiff’s injury. In other words, the defendant must have caused the harm to occur.
Causation splits into two types:
- actual cause
- proximate cause
A plaintiff must establish both types of causation in order to prove the element of causation.
- Actual cause is exactly what it sounds like: did the defendant actually cause the harm? Actual cause is sometimes referred to as cause-in-fact.
- On the other hand, proximate cause is an extremely complex concept. Put simply, proximate cause asks whether the defendant’s actions (or inactions) caused a foreseeable consequence. Proximate cause is sometimes referred to as legal cause.
The final element of proof of negligence is damages. For this element, the plaintiff must show that he or she was injured or suffered damage as a result of the defendant’s actions (or inactions). Damages can be proven by personal injury, property damage, and in some cases, punitive damages.
The law of negligence is very complex and can be difficult to understand. Each case has a unique set of facts that make it difficult to determine whether or not you have a solid claim for swimming pool negligence. Let us help you make that determination easier.
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