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Drowning & Swimming Pool Accidents

These type of unspeakable tragedies can impact you and your family forever. You’ll need an experienced legal partner to help guide you through this process.

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Phoenix Swimming Pool Accident and Drowning Lawyers

Drowning and near-drowning are among the most painful tragedies a family can endure. In just a matter of seconds, water can turn from a play area into a danger zone. These accidents can shatter a life as well as an entire family’s future, finances and stability.

Drowning Accidents are Too Common in Arizona

One of the countless benefits of living in Arizona are the many days of sunshine and clear skies.  According to the National Oceanic and Atmospheric Association, Phoenix ranks fourth in the United States for annual days of sunshine, boasting 211 days of sunshine, which is eighty-five percent of the year.  Yuma, Arizona ranks number one, with ninety percent of sunshine a year.

With eight-five percent of the year being bathed in sunshine, it is no surprise that many Phoenix residents own swimming pools. In many states, a swimming pool is a luxury, however, in Phoenix it is staple.  In fact, Phoenix ranks number one in the United States in residential pool ownership.  Although swimming pools are a great source of entertainment and exercise, it is important for both parents and children to be educated about water safety and pool requirements in order to avoid unnecessary tragedy.

However, swimming pool accidents aren’t the only threat for drowning or secondary drowning. Each year, there are eight water-related incidents for every 100,000 children in Maricopa County.  It is imperative to understand that something as simple as a bathtub, bucket or toilet can pose a serious risk to drowning or secondary drowning.

While it’s common to think of drowning as a problem for children, it’s also a serious issue for someone who knows how to swim. Every year in Maricopa County, twice as many adults die from drowning than children. Across the Valley, from Phoenix to Glendale, Mesa, Scottsdale, Chandler and Peoria, residents of all ages fall victim to the danger of unsupervised water activities. A drowning or near drowning happens 160 times a year, on average, in the Valley.

The Lamber Goodnow Phoenix Injury Law team is dedicated to providing drowning and near-drowning victims and their families with the support, counsel and representation they need. Our attorneys have a proven track record in seeking and securing the maximum compensation to ease the burden of healthcare costs, life care, rehabilitation and more.

Causes of Water Related Accidents and Drownings

There are many different factors that contribute to water related injuries and drownings.  Among the most common issues in water accidents and drownings is negligence, and negligence resulting in wrongful death.  However, many other factors may contribute to water related injuries or drowning.

According to the Centers for Disease Control and Prevention, other factors that contribute to water injuries or drowning include:

Overcrowded Facilities: When a community pool is overcrowded, the risk becomes much larger for children to get injured when others jump into the pool and land on them.  Additionally, when an area is overcrowded, people become more distracted, allowing children to wander, swim in areas that are above their abilities, or run over areas that may be slick with water, which may cause them to fall.

Poorly Trained Staff: Research suggests that being a lifeguard is a very difficult task.  Sitting for long hours, often in hot weather, and watching for a very rare event to occur is difficult for the cognitive and perceptual parts of the human body.  Additionally, lifeguards may often be distracted or poorly trained.  However, the seconds that a lifeguard may be distracted could be the difference between life and death for your child who is struggling in the water.

Improperly Maintained Pools: If a pool has not been properly cleaned there is a chance that the water may become contaminated and make people sick.  Additionally, water that is not clean may be murky, leading to accidents that result from people jumping or diving into shallow waters, or not seeing someone in the pool and jumping on them.

Defective Drains and other Equipment: A common hazard that poses a drowning risk is a defective pool drain design which creates a suction and entrapment hazard.  This happens when the design of the drain allows it to be completely blocked by the swimmer’s body, which creates a vacuum effect, trapping the swimmer against the drain.  This happens frequently with young children, who do not have the strength to break free from the vacuum caused by the drain. Other pool equipment, such as a broken tile, pump defects, a broken diving board, ladder and slide defects and pool filter issues may cause injuries.

Alcohol Use: Drinking in and around swimming pools while alluring, are often a dangerous mix. Alcohol can lead to poor choices and often affects a person’s decision making, coordination and balance. In fact, 70% of deaths for adolescents and adults involve alcohol according to the Centers for Disease Control and Prevention.

Lack of Swimming Lessons/Ability: While it seems obvious, control studies have proven that formal swim lessons can greatly reduce the risk of drowning. Many children – and adults – do not know how to swim, but a proactive approach to learning how should be essential training, especially in warm-weather markets.[1]

Lack of Pool Fences: In states like Arizona, laws are the books requiring pool owners to have barriers, such as pool fencing around their home swimming pools. One study even showed that a four-sided isolation fence can reduce a kids’ risks for drowning some 83% as opposed to a three-sides property line fence. Many children seem naturally drawn to water, but a pool fence can help your children from accessing your pool without your knowledge.[2]

Lack of Supervision: Watch your kids around water, and don’t be “lulled to sleep,” even in situations where a lifeguard may be on duty. For small children, even a toilet or a bucket of water can become hazardous. The tragedy of drowning can happen in a flash – and sometimes quietly – but the consequences can affect families forever.

Failure to Wear Life Jackets: If you and your family are involved in water sports like boating, a life jacket can save your life. In fact, in a 2010 study conducted by the U.S. Coast Guard, 83% of the drowning death victims were NOT wearing life jackets (that report looked at 4,604 boating incidents where 3,153 people were reported injured – and 672 perished).[3]

Who is Most at Risk?

According to the World Health Organization, certain groups of individuals are more at risk, including:

  • Children: Around the world, children from ages one to four suffer the highest drowning rates – followed by kids from five to nine years old. These sobering statistics should serve as an important reminder that close supervision of your kids around water is of paramount importance.
  • Males: Males typically engage in riskier behavior than females, meaning that men are particularly at risk for drowning – with twice the overall mortality rate of women. Swimming alone and drinking while swimming and boating also account for more males being hospitalized than females for non-fatal drowning.
  • If you have increased access to water, you’re also at a greater risk to drowning. That means that people in warmer clients who are around pools, along with individuals living by ponds and irrigation channels, as well as people with occupations such as commercial fishing are more prone to drowning.
  • Travelers are particularly at rick, especially if they’re unfamiliar with the risks of local water features such as rip currents, undertows and rip tides.
  • As unbelievable as it may seem, a bathtub is still the most common place for drowning, which is why small children ALWAYS require supervision around water. People with certain medical conditions like epilepsy are also at a higher risk for drowning.

Injuries

Water related accidents may result in a wide range of injuries in addition to drowning deaths.  Some of the most common injuries include:

Brain Damage: Brain damage can result from a blow to the head of from the lack of oxygen to the brain.  If someone falls from the diving board or dives into water that is too shallow, they may hit their head and brain damage may be one possible consequence.  Additionally, being under water for too long without breathing disrupts the flow of oxygen to a person’s brain and can result in brain damage.  Brain damage may affect a number of daily skills and functions, including a person’s ability to speak, think or even move.

Head Injuries: Brain damage is not the only head injury that may occur in water related accidents.  Other head injuries, may result from diving into shallow water, falling into a pool or an exploding pool filter, including: skull fractures and disfiguring facial lacerations.

Neck and Spinal Cord Injuries: A person that has falls into a body of water, dives into a shallow pool or falls due to a boating incident may break the vertebrae in their neck or back.  Broken vertebrae can be painful and require surgery, or might result in nerve and spinal cord damage and paralysis.  A broken neck or back might mean permanent disability and the need for lifelong care.

Soft Tissue Injuries and Broken Bones:  Muscle strains, torn ligaments and broken arms or legs may result from swimming or diving accidents.  Muscle spasms or strains may occur when ladders or diving boards fail or a person does not judge the distance in which to swim and becomes tired.

Damages

The Lamber Goodnow Phoenix Injury team appraises the details of each water related injury or drowning case to make sure that each family is receiving the damages that they fully deserve.  In Arizona, victims of water related injures may recover present and future medical expenses, present and future lost wages, loss of companionship, diminished quality of life and pain and suffering.

If the victim dies in a drowning accident, certain members of the decedent’s family (A.R.S. Section 12-612(A)) may file a wrongful death claim and recover damages including the loss of love, affection, companionship, care, protection and guidance, pain, grief, sorrow and stress suffered in the present and future, loss of income in the present and future, reasonable medical expenses and reasonable funeral and burial expenses.

Additionally, in some cases, punitive damages may be awarded.  The purpose of punitive damages is to punish the party responsible and to discourage similar behavior in the future.  Punitive damages may be awarded if the negligent act is considered especially reckless or egregious.

How Can You Tell if a Person is Drowning?

Most people have only viewed a person drowning on television and believe that it would be easy to spot.  However, drowning does not look like it is portrayed on television.  It may literally only take seconds for a drowning to occur and may even happen right before your eyes.  It is extremely important to know the signs of drowning.

The major signs of drowning include:

  • Mouths sinking and bobbing up repeatedly.  Many times, a person who is drowning will have their mouth open and their head back with their eyes shut or unable to focus.
  • No call for help.  If you can’t breathe, you can’t call for help.
  • No waiving for help.  A person that is drowning will instinctually use their hands to pull their mouths out of the water so that they are able to breathe.
  • They are upright in the water and may not be kicking their legs or feet.  A person that is drowning may look like they are trying to climb an imaginary ladder.
  • They will not be making noise.  Many times, when children are around water they are yelling, laughing and making noise.  If you do not hear your child, it may be an indication that something is wrong.
  • The incident happens very quickly.  A person who is drowning may only struggle for 20 to 60 seconds before they go under the water.
  • They will not be able to assist their rescuer and may even, out of panic, drag their rescuer under the water with them.  It is very important to understand that a person that is drowning can’t call attention to themselves and will be in a panic.  If you are assisting a person in trouble use rescue equipment or grab the person from behind so that they are not able to pull you under the water.

Arizona Water Safety Laws

Negligence

Most water accidents in which there are injuries or drowning hinge on the legal theory of negligence.  Negligence is a legal theory which refers to when a person fails to behave with the level of care that someone of ordinary prudence would under the same circumstances.

Negligence is broken down into four elements:

  • Duty: The at-fault party owed some type of duty to you. For example, in a swimming pool accident, the person who owns the pool had a duty to install the proper gates and locks on the pool gate.
  • Breach: The at-fault party breached their duty owed to you by failing to exercise reasonable care. For example, the pool owner did not install the gate or the lock on the pool door.
  • Causation: The at-fault party’s actions were the cause of your injury. For example, because the pool owner did not install the proper lock on the door, it caused your child, who was over at their home for a swim party, to open the door and get into the pool unsupervised, causing them to jump in the shallow end of the pool and break their leg.
  • Damages: There is some way in which you may be compensated for your injury.  For example, your child may get medical expenses, and pain and suffering for their broken leg.

People found at-fault for negligent or reckless behavior in Phoenix may also be found liable under the legal theory negligence per se.  In tort law the rule of negligence per se states that if a defendant’s actions violated a safety statute, for example an Arizona statute created for pool safety, then the court will consider the actions negligent without asking whether a reasonable person would have done the same thing.

Examples of Arizona Statutes involving pool safety include:

  • R.S. § 36-1681(B) provides that private swimming pools “shall…be entirely enclosed by at least a five foot wall, fence or other barrier.” The ordinance expressly applies to any home that has residents under the age of six and all swimming pools constructed after June 2, 1991. A.R.S. § 36-1681(D).
  • A.C. R18-5-240(A) requires that “a semipublic swimming pool or spa deck shall be entirely enclosed by a fence, wall, or barrier that is at least 5 feet high.” A.A.C. R-18-5-201 defines a “semipublic swimming pool” as “a swimming pool operated for residents ….”  It distinguishes semipublic pools from a “private residential pool,” which is defined as “a swimming pool at a private residence used only by the owner, members of the owner’s family, and invited guests, or a swimming pool that serves a housing group consisting of no more than three living units….”
  • City of Phoenix Building Code Ordinance G5809 (2013) formally adopts the International Building Code (“IBC”) in Phoenix. In its relevant part, IBC Sec. 3109.4.1 provides that private and public swimming pools shall be covered by a “barrier … not less than 48 inches.” I.B.C. § 3109.4.1-3109.4.3.  The fence requirement contained in the I.B.C. is nothing new to Arizona.  The City of Phoenix Construction Code § 610.01 (1990), which applied before Phoenix adopted any uniform codes, provided that “every swimming pool shall be completely enclosed by a permanent fence, wall or barrier.”  The Phoenix Construction Code law expressly applied to all public and semi-public pools and all private residential homes where the pool is “accessible to children under age six,” which is defined as “whenever a child resides in the house or regularly visits the property.” City of Phoenix Planning & Development Department Pool Barriers Requirement. According to the law, “these barriers are to be required to be installed retroactively, even if the pool was built before 1991”

Additionally, in Arizona negligence laws follow the doctrine of comparative negligence.  Under Arizona Revised Statute Section 12-2505, an injured party is allowed to recover even if they are found to be up to 99 percent at fault.  The victim’s damages will be reduced by the amount in which they are found to be at fault.  However, if a plaintiff intentionally caused or contributed to an injury then they are barred from recovery.

Wrongful Death

However, if a person drowns because of the negligence of another, the victims’ family may sue, alleging wrongful death.  According to A.R.S. Section 12-611, a wrongful death suit may be brought to court if the deceased person could have filed a personal injury case based on the negligent or wrongful conduct that caused their death.  This may be because someone else physically caused the drowning, or because whoever responsible for the pool or waterway was negligent or reckless in the operation of the pool and their behavior caused the drowning.

In a wrongful death lawsuit, the family member starting the lawsuit has the burden of establishing that the defendant acted negligently and that their negligence was the proximate cause of the death of their loved one.  Proximate cause means an event that is sufficiently related to an injury to make the courts deem that the event is the cause of that injury.

Pool Safety Statute

The Arizona State Legislature has recognized the importance of pool safety and passed A.R.S. § 36-1681 to prevent children from gaining unsupervised access to residential swimming pools.

The statute includes requirements such as: pool enclosure height (must be at least five feet high), door and gate measurements, when a wall or barrier is necessary and enclosure distance from the water’s edge

In part, A.R.S. § 36-1681 states:

“A. A swimming pool, or other contained body of water that contains water eighteen inches or more in depth at any point and that is wider than eight feet at any point and is intended for swimming, shall be protected by an enclosure surrounding the pool area, as provided in this section.

  1. A swimming pool or other contained body of water required to be enclosed by subsection A whether a belowground or aboveground pool shall meet the following requirements:
  2. Be entirely enclosed by at least a five-foot wall, fence or other barrier as measured on the exterior side of the wall, fence or barrier.
  3. Have no openings in the wall, fence or barrier through which a spherical object four inches in diameter can pass. The horizontal components of any wall, fence or barrier shall be spaced not less than forty-five inches apart measured vertically or shall be placed on the pool side of a wall, fence or barrier which shall not have any opening greater than one and three-quarter inches measured horizontally. Wire mesh or chain link fences shall have a maximum mesh size of one and three-quarter inches measured horizontally.
  4. Gates for the enclosure shall:

(a) Be self-closing and self-latching with the latch located at least fifty-four inches above the underlying ground or on the pool side of the gate with a release mechanism at least five inches below the top of the gate and no opening greater than one-half inch within twenty-four inches of the release mechanism or be secured by a padlock or similar device which requires a key, electric opener or integral combination which can have the latch at any height.

(b) Open outward from the pool.

  1. The wall, fence or barrier shall not contain openings, handholds or footholds accessible from the exterior side of the enclosure that can be used to climb the wall, fence or barrier.
  2. The wall, fence or barrier shall be at least twenty inches from the water’s edge.”

Additionally, public swimming pools in Arizona must be in compliance with the Virginia Graeme Baker Federal Pool and Spa Safety Act.  The Act includes safety requirements such as the requirements for pool and spa gates, alarms, covers, building requirements, drainage systems and covers, vacuum systems, back-up safety requirements and more. The Act was signed by President Bush on December 2007, to prevent public swimming pool and spa accidents.

Legal Obligations of Property Owners with Swimming Pools

Property owners are obligated to provide a safe environment to their tenants – and that obligation extends to swimming pools. Families should know that landlords and property owners could be held liable in the event of a drowning or near drowning.

Of course, there are countless ways that landlords can inexpensively protect their residents and avoid a drowning tragedy. Self-closing gates, routine maintenance to ensure gates function well, proper locks and barriers for exterior doors and gates, and other basic methods could prevent an injury or even a death.

While landlords could claim they are not responsible for providing or maintaining pool safety before or after leasing a property, the law often says otherwise. Landlords have a duty to provide a safe living environment for children who live in their properties under Arizona premises liability laws.

In the past, a landlord could rent a property to someone “as is.” This meant that any unreasonably dangerous portions of the home had to be accepted by the tenant and the landlord would not be liable for any injuries due to unreasonably dangerous conditions.  However, Arizona, like most jurisdictions, has abandoned the concept that a landlord turns the leasehold over to the tenant “as is.”[4] Now, a landlord owes certain duties to a tenant “to take those precautions for the safety of the tenant as would be taken by a reasonably prudent man under similar circumstances.” Arizona defines a “tenant” to include children to the extent they are residing in the home with their parents.[5]  Therefore, in the case of a swimming pool, if a landlord does not make reasonable repairs and take reasonable safety precautions to fence the pool they may be held liable in the case of an injury or drowning of a child (or adult).

Contact our law firm today at 602-ARIZONA (274-9662) or 1-800-ATEAM-LAW (283-2652) toll free. Speak with a lawyer right away — before speaking with any auto insurance provider if possible. Other steps you can take now!

The Lamber Goodnow Team is well aware of many of the arguments that landlords will try to make after a drowning – and those arguments will fail. Our team has successfully handled drowning and near drowning cases.

Prevention

According to the Drowning Prevention Coalition of Arizona, there is a three-pronged approach to drowning prevention which includes adult supervision, barriers to water access and life vests and coast guard approved CPR classes for adults.

Additional ways to prevent drowning include:

  • Parents and caregivers must be educated and advised that they should never, even for a second, leave small children alone or in the care of another young child while near water. This includes bathtubs, pools, spas, lakes, toilets and irrigation ditches or open standing water.
  • Educating your child about pool safety, including, but not limited to: where they can swim, what activities are appropriate, if they may dive into a pool, what to do if they are struggling in any way, where the pool ladders or steps are located, what to do if another child is struggling in a pool and how to deal with pool or spa drains.
  • Whenever infant, toddlers or weak swimmers are in or around water, a supervising adult with swimming skills should be in the water, within an arms-length, providing, “touch supervision.”
  • Installing pool barriers (In Arizona it is the law).  It is not enough to lock the house doors, children of all ages can think of crafty ways to open a locked door, go through a window or out a doggy door.
  • Parents must educate themselves, including CPR and proper supervision.
  • Install proper drain covers.  Body entrapment and hair entanglement in pool and spa drains may cause injuries and even death.
  • Knowing and appreciating the environment, including water depth, water current and terrain.
  • Enrolling your child in swimming lessons, children are able to begin swimming as young as six months of age.  In Arizona, the Hubbard Family Swim School and Aqua-Tots offer classes to children as young as four months of age through advanced swimmers.  Additionally, both companies offer classes for special needs children.
  • Never consuming alcohol while operating a boat or any type of watercraft.
  • When swimming or taking a bath, children of any age with seizure disorders should be supervised closely by an adult at all times.  Showers are preferable to baths for situations in which a person cannot be supervised directly because of privacy laws.
  • Knowing, and being honest, about you, or your child’s swimming level.
  • Understanding how to choose and fit a life jacket.
  • Recognizing the risk of a “dry,” or delayed drowning.  A dry drowning can occur after inhaling water through the nose or mouth.  In many cases of dry drowning, the water triggers a spasm in the airway, causing it to close up and impact breathing.  Secondary drowning occurs when swimmers have taken water into their lungs.  The water builds up over time and eventually causes breathing difficulties. According to the American Osteopathic Association, signs of dry drowning are: trouble breathing, coughing, irritability, chest pain and vomiting.

Below is a graphic that I think is good, however, I am not sure how to put it in the content.  I was thinking that it may be good running next to the prevention list.

Additional Resources

Why It’s Essential to Seek Representation Quickly in Drowning Cases

While medical care is the most immediate need after a drowning or even a near drowning, legal advice is also critical. Evidence can be lost quickly in situations like drownings, and families need the advice and support only a drowning expert can provide. Too often, families are forced to choose between caring for their loved one and handling the legal and insurance ramifications of a drowning.

The Lamber Goodnow Injury Law team will use our comprehensive services to address all issues that could be related to a drowning – from liability to healthcare costs, damages and lifetime care. Our team partners with experts on swimming pool accidents and brain injuries, as well as renowned scholars and doctors across the country to provide the most comprehensive representation available.

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As with all of our cases, our clients pay nothing out of pocket and we only get paid if we recover money for our clients first.

Free, No Obligation Consult Today

It is never too late to obtain our services. Contact us online or call our firm at 602-ARIZONA (274-9662) or 1-800-ATEAM-LAW (283-2652) toll free.

 

 

[1]  Brenner RA, Taneja GS, Haynie DL, Trumble AC, Qian C, Klinger RM, Klevanoff MA. Association between swimming lessons and drowning in childhood: A case-control study. Archives of Pediatrics & Adolescent Medicine 2009;163(3):203-10.

[2]  Thompson DC, Rivara FP. Pool fencing for preventing drowning in children. Cochrane Database of Systematic Reviews 2000; 2.

[3]  U.S. Coast Guard, Department of Homeland Security (US). Recreational Boating Statistics – 2010 [online]. [cited 2012 May 3]. Available from: http://www.uscgboating.org/assets/1/workflow_staging/Page/2010_Recreational_Boating_Statistics.pdf.

[4]  Schultz v. Eslick, 788 F.2d 558, 559 (9th Cir. 1986).

[5]  McLeod, 163 Ariz. at 9, 785 P.2d at 578 quoting Shannon v. Butler Homes, Inc., 102 Ariz. 312, 317, 428 P.2d 990, 995 (1967);

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