Determining Negligence in a Drowning Accident
There can be many different negligence issues. For example, perhaps structural or mechanical issues were at fault—the area did not have proper emergency equipment available, gates or latches were defective, or the design of the area is poor. In other situations, human error is to blame. The area was overcrowded, staff members were untrained, or Certified Pool Operator Standards were not met. Lifeguards may have been distracted, unskilled, or poorly trained. Whatever happened, our attorneys can get to the bottom of it and fight for you.
If a lifeguard does not pay proper attention to swimmers and someone drowns while on their watch, the lifeguard, as well as the premises' owner, may be charged with negligence. There may be other causes or contributing factors in drowning accidents as well. Defective filters have been known to cause drowning by way of suction. The victim may be dragged underwater with his or her hair caught in the filter and drowned before anyone notices or can free them. In these scenarios, the manufacturer of the defective filter may be held liable.
In some situations, drownings are caused by pure carelessness.
For example, a parent, guardian, or babysitter may walk away from a child when they are swimming. An unsupervised child is at a huge risk for drowning if an experienced swimmer is not there to monitor them. Sometimes, serious accidents are caused by horseplay or running. If one person is knocked unconscious or is pushed into the deep end when he/she does not have strong swimming skills, the results can be disastrous.
Causes of Drowning Accidents
- Untrained staff/lifeguards
- Overcrowded area
- Failure to create a prevention plan
- Broken or missing emergency equipment
- Lack of water clarity
- Defective gates or latches
- Failure to meet industry standards
- Defective equipment or design
- Lack of supervision or lifeguards on duty
- Failure to install fences or barriers
Lifeguard Negligence & Drowning Accidents
The duty of a lifeguard is to prevent and respond to aquatic emergencies, whether it be at a public or private pool area. Unfortunately, there are countless instances where lifeguards fail at their responsibilities, resulting in serious or even fatal injuries. According to Lifesaving Resources Inc., there are more than 100 drowning accidents that occur at guarded facilities every year. If you or a loved one suffered injuries because of a lifeguard’s negligent or careless behavior, you are entitled to seek compensation for the damage caused to you.
The Responsibilities of a Professional Lifeguard
Lifeguards have various responsibilities to prevent people from drowning or sustaining injuries in aquatic facilities. When a person is injured or suffers harm because a lifeguard failed to follow the standards of care, or failed to act at all, that lifeguard would be considered negligent. They would also be considered negligent if they failed to control or stop any behavior that could result in further harm, if they failed to provide care, or if they provided inappropriate care. Lastly, a lifeguard could also be considered negligent if they tried to provide care beyond their scope of practice or level of training.
Other lifeguard responsibilities, according to the American Red Cross, include the following:
- Monitoring activities in and near the water through surveillance
- Preventing injuries by minimizing or eliminating hazardous situations or behaviors
- Enforcing facility rules and regulations and educating patrons about them
- Recognizing and responding quickly and effectively to all emergencies
- Administrating first aid and CPR
Lives Changed Every Year Due to Lifeguard Negligence
In 2010, a family lost their 4-year-old child when he drowned at a summer camp. His drowning was caught on surveillance video. In the video, the young boy struggled to swim to the edge of the pool, and in seconds is seen floating facedown in the water. There were two lifeguards just a few feet away, but it took them eight minutes to notice the boy had drowned. If a lifeguard looks away for even a minute, it could lead to irreversible tragedy.
How a Texas Drowning Lawyer Can Help with Your Case
One of the first things that you should do following a drowning accident is to contact a drowning attorney that you know you can trust. A Texas lawyer can answer your questions and help you take the appropriate action. At Arnold & Itkin, our law firm is passionate about protecting the rights injured, as well as bereaved families. We fight for justice. Many drowning accidents occur in public places, including hotels, water parks, and summer camps. Ensuring that those responsible are called out for their negligence encourages better safety measures, protecting others from enduring similar pain and preventing drowning accidents from occurring in the future.
- Photos of the body of water where the drowning accident occurred
- Police reports / first-responder information
- Work schedules of attendant lifeguards, if applicable
- Interviews with family members, witnesses, or those at the area when the accident occurred
- Results of a safety and surveillance inspection, including a water clarity reading
- Information about drowning accidents that had occurred at the site previously
- Testimony from expert witnesses, including aquatic experts
- Information about the training received by lifeguards, if applicable
Recovering Compensation & Fostering Change in Pool Safety
Families who experience the unthinkable by losing a child, spouse, or other loved one in a drowning accident are left feeling helpless. But, there is something that can be done. Taking legal action offers a way to help a near-drowning survivor or the family of a person who has lost their life in a drowning accident. It allows for the recovery of compensation from the at-fault party (or parties), which can cover expenses like medical treatment and losses like diminished earnings. It can also cover non-economic damages like pain and suffering and loss of companionship. In situations where drownings are caused by negligence, this is the way to find justice.
Holding property owners, manufacturers, and other at-fault parties accountable for drowning accidents has another effect. It shows that lax pool safety standards and carelessness will not be tolerated. It forces these parties to pay for what they have done, and this can lead to changes in their policies and practices. When enough people speak up and do something about drowning accidents, it can foster real change that helps prevent others from suffering similar fates. Our drowning lawyers are committed to seeing things change for the better.
The Creation of the Virginia Graeme Baker Act
Lawmakers passed the Virginia Graeme Baker Pool and Spa Safety Act in 2007, years after a young girl—the law’s namesake—was trapped and killed by a spa drain. It created regulations for pool and spa drains across the nation designed to prevent entrapment. Specifically, the law requires all drains to have a cover designed to reduce the chance of swimmers getting caught by the suction.
Drowning and near-drowning accidents can expose hazards that have gone on for too long. That was the case with Virginia Graeme Baker, a 7-year-old girl who drowned in 2002 after being trapped underwater by a hot tub drain. She was a competent swimmer, but the powerful suction of the drain held her underwater. This was not the first (or last) incident of its kind. Her mother, Nancy Baker, worked for years to get Congress to pass legislation that would eliminate the risk of pool suction entrapment using drain covers and other devices. The Virginia Graeme Baker Act was incorporated as Title 14 of the Energy Independence and Security Act of 2007.
In the year of the law’s creation, there were 74 reported incidents of drain accidents. These accidents resulted in 63 injuries and 9 deaths.
Virginia Graeme Baker Act Requirements
The VGBA required all pools to be fitted with compliant drain covers. To be VGBA-compliant, drain covers must make it more difficult for a seal to form between a person and a drain, reducing the chance of entrapment. Additionally, VGBA requires all pool contractors to check the drains of pools they work on for compliance and inform pool owners of their need to upgrade any violating drain covers.
Safety Vacuum Release Systems
To increase safety, the VGBA also requires that pool owners install a safety vacuum release system (SVRS). An SVRS detects the sudden increase in suction, which occurs when a person is entrapped. The system reacts to increased suction by powering down the pool’s pump, giving the trapped person a chance to swim away. These devices can be mechanical or electro-mechanical. Additionally, SVRS functionality is featured within the software of many modern pumps.
Recognizing the Risk of Drowning & Submersion
According to the Centers for Disease Control (CDC), each day about 11 people die from unintentional drowning. Of these, two are children who are 14 years old or younger. Drowning is ranked 5th among the leading causes of unintentional injury death in the United States and can happen in any pool such as residential, portable pools, the neighborhood pool, the pool at the gym, hotels, water parks, and other facilities.
Over 50% of submersion victims treated in emergency rooms require hospitalization or transfer for further care, which is astounding when compared to the hospitalization rate of just 6% for all other unintentional injuries. These nonfatal drowning injuries can cause severe brain damage that may result in long-term disabilities such as memory problems, learning disabilities, and permanent loss of basic functioning.
Preventing drowning accidents could often be as simple as better education on the Instinctive Drowning Response, which doesn’t look like the movie version of a swimmer yelling for help, splashing around, or making audible noise. More often than not, however, it takes modifications to pool design, security measures, safety gear, maintenance standards, or training to stop certain accidents from happening.
Many factors surround the incidence of drowning and submersion. Two that make a huge difference:
- Fencing – Having a proper, locking fence to keep children out is vital to preventing drowning.
- Swimming lessons – Lack of ability to swim properly also accounts for many cases of drowning. One of the most famous was when Joe Delaney, a running back with the Kansas City Chiefs, drowned in 1983. A makeshift pond created from construction drew the attention of some kids, and when Delaney (who couldn't swim well) went in to save them, he drowned.
Children & Drowning: Silent Danger
Drowning is the leading cause of death for children under the age of four, and Texas is ranked second for drowning deaths in the country.
In 2014, over 73 children died due to drowning accidents in Texas. Across the state, the most drowning deaths have occurred in Harris County. For every of those 73 child fatalities, another 4 children had to be hospitalized or given emergency medical care. Most people have misconceptions about drowning, especially when it comes to young children. In many cases, people assume that a drowning child will cause a loud splash, yell for help, or at least make noises and catch the attention of a nearby adult supervising the situation. Unfortunately, drowning is much more complicated. Drowning is often a very quiet thing—and can happen in a matter of minutes.
Parental Supervision vs. Focused Attention
When people hear about a child drowning, they often jump to pointing the finger at the parents. It is easy to blame poor parenting, but the issue runs much deeper. Many incidents involving children drowning involve heartbroken parents who merely looked away for seconds, were convinced their child was inside the house or had a watchful on them as they swam, only to see their child hurt due to a dangerous defect.
Representatives from The Center for Children and Women note there can be danger in having a sense of security. The situation appears to be safe—and parents can unintentionally let their guard down over time. This is especially true for families who have access to swimming in their backyard or have put their children through swim lessons, making them all the more comfortable or relaxed with the situation as time goes on.
Another danger is the amount of supervision present. The more adults or lifeguards around, the more adults provide only general supervision rather than focused attention. This is known as a diffusion of responsibility.
When there are more parents around, it can result in more casual supervision or more distractions. One parent may start talking to another parent, assuming the other adults are watching the children, while those other adults assume the same thing. All of a sudden—even if just a minute—no adults are fully paying attention to the children in or around the water. In that brief moment, tragedy can easily strike.
Guidelines for Safe Swimming
- Kids and adults should know how to swim before going to a body of water.
- Life jackets should be worn in water by young swimmers—not just for “weak swimmers.”
- Don’t provide simple supervision. Stay attentive and provide visual supervision.
- Put away the phone, book, or pause conversations while children are swimming.
- Set up a secure barrier fence between children and the water.
- Always stay alert and suspect the water when children are missing.
- Be even more vigilant in open water such as oceans, rivers, ponds, or lakes.
- Make sure you know drowning CPR as a parent.
What Is the Instinctive Drowning Response?
Learning the signs of Instinctive Drowning Response can save lives, as most drowning accidents are preventable.
- Distressed Swimmer
Shows signs of anxiety or panic, struggling but keeping head above water. May call, splash, or wave. - Active Drowning Victim
Can’t stay above the surface and may have head thrown back with face upward, arms flapping.
Unable to call for help. - Passive Drowning Victim
Unconscious or below water, immersed and most likely not breathing with face in the water.
Extremely critical condition.
A distressed swimmer is often the individual personified in the movies, while an active drowning victim is limited to being spotted through their facial expressions and quiet struggle. Once a swimmer is an active drowning victim, they typically become submerged in less than a minute.
Recognizing an Active Drowning Victim
To be able to speak or call out, a person must be able to breathe. If someone is not able to breathe, his or her voice will also, logically, not work. The mouth of a person who is drowning sinks below the surface of the water, preventing him or her from safely breathing.
Even though they may surface temporarily, a drowning victim does not have sufficient time to breathe and call for help.
Drowning victims also don’t typically wave for help. If a person is drowning, the body's instincts kick in, causing the victim to extend his or her arms laterally and press down on the surface of the water. This action propels the body upwards and allows the victim to breathe.
Common Signs of Drowning
- Does not respond to the question, "Are you alright?"
- Head is low in the water and mouth is at water level
- Head is tilted back with an open mouth
- Eyes are unable to focus or are closed
- Hair is covering the victim's forehead or eyes
- Not using his or her legs
- Hyperventilating or gasping
- Seems to be swimming without making any progress
- Tries to roll onto his or her back
- Moves as if climbing an invisible ladder
Time Is Critical in Drowning Accidents
Once a person begins drowning, he or she must be rescued in 20 to 60 seconds. This is as long as the body can remain upright in the water. In the case of young children, they may struggle for even less time before their body is worn out, and emergency rescue is required.
Delayed rescue can result in serious injuries or even death.
Sometimes drowning incidents are tragic accidents, but other times, improper supervision by child care providers, lack of lifeguards, or other forms of negligence cause tragic harm.
For a Review with a Drowning Lawyer, Call Arnold & Itkin: (888) 493-1629
If someone you love was seriously hurt or killed in a drowning accident, we can do something about it. Our firm is here to help represent your best interests and fight for justice. All you have to do is get in touch with our law firm as soon as possible. For years, the name Arnold & Itkin LLP has been synonymous with strong advocacy for injury victims. We aggressively pursue justice for our clients.
When you turn to Arnold & Itkin, you're turning to a team that's focused on getting the results clients deserve.
Call us now at (888) 493-1629 for a free consultation.
