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 July/August 2006

In Over Your Head: Drowning in Liability

By Konor Cormier

As the days grow longer and the mercury begins to rise, the start of another summer inevitably leads many Texans to the nearest cold body of water. This summer, millions of Texans will spend their days seeking relief from the often sweltering heat in lakes, rivers, beaches, water parks, and community swimming pools across the state. Sadly, these recreational activities will inevitably result in a handful of tragedies in the form of drowning deaths.
The National Safety Council estimates that there are over 4,000 drowning deaths nationwide each year.1 While all age groups are susceptible to a drowning accident, roughly 60 children under the age of 14 drown each year in Texas.2 Drowning is the leading cause of accidental death among children under the age of five and the second leading accidental cause for children under 14.3 For every child who drowns, an estimated four more are hospitalized for near-drowning.4 Research indicates that nearly 9 out of 10 drowning victims under age 14 were under some form of supervision when they died.5 Summertime is especially problematic since 80 percent of drowning deaths occur between the months of May and September.6 In the Houston area, the summer of 2006 is already on pace to exceed drowning deaths from the prior year.7
In addition to the tragic loss of life, the aftermath of a drowning death can lead to lawsuits against aquatic facilities that often result in settlements or jury verdicts for millions of dollars. An “aquatic facility” can mean any operation that allows the public or paying patrons to swim in a body of water, whether it be a swimming pool, water park, lakefront, coastal beach, or even hot tubs and spas. Risk management of aquatic facilities can be arduous, but preventative measures far outweigh the prospect of tragic deaths as well as managing any subsequent litigation. The owners, managers, insurers, and employees of aquatic facilities can take many steps to minimize liability should litigation follow an incident at their facilities.
A drowning death at an aquatic facility does not, in and of itself, guarantee liability on the part of any particular party. There are many factors that contribute to drowning deaths, but drowning is, in many instances, one of the most preventable accidental causes of death. A review of drowning deaths from a litigation standpoint emphasizes common mistakes made at some aquatic facilities that increase potential for a drowning death. Recognizing and understanding the allegations against aquatic facilities can lessen both the likelihood that a drowning will occur and the chances a jury would find a defendant liable.

Private Pools
There are few, if any, state statutes or local regulations governing private pools such as those in the backyards of hundreds of Houston-area homes. A private homeowner with a backyard swimming pool is just as exposed to liability after a drowning death as a commercial owner.8 Pool owners often invite others to swim in their backyards without so much as asking about the person’s swimming ability. Great care should be taken when inviting or permitting others, especially children, to swim in a private homeowner’s swimming pool. In Texas, a premises owner owes a social guest the duty to exercise ordinary care, that is, the degree of care that would be used by an owner of ordinary prudence under the same or similar circumstances.9 If someone drowns because a homeowner failed to exercise ordinary care, he or she can be found liable for damages under theories of premises liability and negligence.10
In a highly publicized case in California, the parents of a four-year-old child sued former Mötley Crüe drummer Tommy Lee after the child drowned at Lee’s residence during his son’s birthday party. A jury found that each child had his or her own chaperone and it was unreasonable to think that the premises owner was responsible for the child’s safety.11 While Tommy Lee ultimately prevailed with a defense verdict, the drowning death of an invitee at a private residence can lead to litigation. While most homeowners do not have the deep pockets of a rock musician, plaintiffs may eye the deeper pockets of a homeowner’s insurance policy. To minimize the risk of an accidental drowning, a homeowner having a pool party, especially for children, should hire a certified lifeguard through the local chapter of the American Red Cross, the YMCA, or a community association. Having a lifeguard present increases the safety of guests and can lessen a homeowner’s liability exposure.12 But unlike private pools, many aquatic facilities allow patrons to swim at their own risk without lifeguards.

Unguarded Aquatic Facilities
Many owners and operators maintain swimming pools without monitoring them with personnel such as lifeguards or staff. The most common facilities with unguarded pools are apartment complexes and hotels. In Texas, a number of statutes and regulations govern the construction and operation of these facilities. Pools and hot tubs owned, controlled, or maintained by the owner of an apartment complex or a property owners’ association are subject to detailed requirements for surrounding enclosures by the Texas Health and Safety Code.13 The statutes detail the exact acceptable specifications for fences and enclosures around pools, including all the gates, doors and methods of access.14 The statutes further authorize the recovery of actual and punitive damages, as well as attorney’s fees, for injuries or loss resulting from violations of the statute.15 The injured party can recover from a party who complies with all the statutes, but the owner or operator has knowledge of repeated access to the pool area by unauthorized persons.16
Additionally, the Texas Department of State Health Services sets out various standards for different classifications of pools in the Texas Administrative Code.17 Texas classifies public pools into one of four categories:

  • Class A pool - Pools used, with or without a fee, for accredited competitive aquatic events (collegiate, high school, etc.). Class A pools may also be used for recreation.
  • Class B pool - Any pool used for public recreation and open to the general public with or without a fee.
  • Class C pool - Pools operated in conjunction with hotels, motels, apartments, condominiums, or mo-bile home parks, property owner associations, private organizations, clubs, classes associated with a school, college or university, but not open to the general public. These are often called semi-public pools.
  • Class D pool - Wading pools with a maximum water depth of 24 inches at any point.18

Owners, operators and managers of public or semi-public facilities should be intimately aware of every statute and regulation applying to their particular class of pool or pools. Certain classes of pools require supervision by a trained operator holding certain specific certifications.19 The Texas Administrative Code outlines specific standards for water clarity, placement of float lines, depth markers, “No Diving” warnings, “No Lifeguard” signs where applicable, telephone requirements and placement, and requirements for signs in alternative languages.20 Finally, pool operators should be aware of all local municipal ordinances that may exceed the state statutes and regulatory standards.21
Lack of adherence to any of these administrative rules and regulations will be heavily scrutinized in the event of a drowning death or injury. Failure to follow state or local safety ordinances regulating public and semi-public pools can constitute negligence per se.22 Violation of any of the standards set forth in the Texas Health and Safety Code or state regulations could be considered negligence per se in the event of a drowning death.

Facilities with Lifeguards on Duty
Aquatic facilities that post lifeguards to monitor swimmers face additional regulations in assuming such duties. Amusement parks, summer camps, schools and community associations often operate aquatic facilities staffed with lifeguards. Lifeguards are responsible for preventing potentially hazardous situations, watching people, and responding to emergencies. Perhaps the most common aquatic facilities providing lifeguards are the community pools operated by municipalities and non-profit associations. Non-profit associations and corporations like homeowners’ associations, churches and the local YMCA are often defendants when a drowning occurs at one of their facilities.
In Texas, the presence of at least one lifeguard and a “second responder” are required to be on duty at Class A pools during competitive events, all Class B pools, and all Class C pools with an operable diving board or slide.23 Many organizations, like homeowners’ associations, provide lifeguards even in the absence of regulatory requirements. Again, local ordinances may have more stringent requirements, such as in Houston where at least one lifeguard must be within 20 feet of a public pool at all times in operation.24
In addition to the safety standards for non-guarded facilities, public pools that provide lifeguards are subject to a considerable number of additional rules and regulations. The state regulations require that lifeguards be certified by the American Red Cross or an equivalent aquatic safety organization.25 The regulations further outline mandatory lifeguard assignments, continuous “in service” training and drills, performance audits, elevated chairs, required lifesaving equipment, telephone placement and pool lighting requirements.26 Many managers and lifeguards are taught these principles, but fail to realize the standards are required by law and do not follow through with them. Any facility not following these standards is left exposed to liability for negligence.
A review of lawsuits where a swimmer drowned at a facility with lifeguards on duty reveals repetitive themes of alleged negligence against the responsible parties.27 In wrongful-death lawsuits where the decedent drowned, perhaps the most commonly pled allegation of negligence is that the organization failed to properly supervise its lifeguards.28 Lifeguards, especially at community pools, are often teenagers with little experience. Plaintiffs typically allege that lifeguards inadequately supervised the swimmers or were inattentive in surveillance of the water.29 If the lifeguard is under the age of 17, a plaintiff could even pursue the homeowner’s insurance of the lifeguard’s parents for any negligent conduct by the minor.
Another reoccurring allegation is that lifeguards allowed a pool to become overly crowded and that the organization failed to employ a sufficient number of on-duty lifeguards for the pool or facility.30 Plaintiffs will attack the lack of facility-specific training given to lifeguards and management’s improper positioning of the lifeguards to scan the water.31 At smaller community pools, where the lifeguards see the same children daily, it is often easy for plaintiffs to prove that the lifeguards knew or should have known that the victim was a poor swimmer.32 Finally, lifeguards are often allegedly negligent in the inadequate response time to react and rescue a drowning victim.33 These cases can include allegations that when a child was reported missing, lifeguards failed to conduct an immediate and thorough search of the water.34
Each of these allegations shows a pattern in aquatic facilities operations that led to millions of dollars in jury verdicts and settlements. Every facility operator should be aware of the dominant patterns of negligence:

  • the failure to properly supervise the lifeguards,
  • the failure of the lifeguard(s) to properly monitor the swimmers,
  • the failure to properly train the lifeguard as to the specific facility, and
  • the failure to properly respond in a timely fashion and administer the appropriate lifesaving techniques.

Just as a lifeguard can prevent a drowning by understanding the causes and signs of drowning, operators of aquatic facilities can better prevent liability exposure by understanding their own actions and omissions that can increase the chances of drowning deaths or injuries and the resulting lawsuits.

Conclusion
Insurers, facility owners, and management should be acutely aware of the laws and regulations governing their particular facility. Likewise, these same individuals need to be cognizant of the day to day operations of the lifeguards at their facilities. It is not enough to simply hire someone to watch swimmers. Everyone up the chain, including management and owners, must actively safeguard the safety of patrons by ensuring that the lifeguards are doing their jobs properly. Anything less increases the possibility of needless loss of life as well as costly and avoidable litigation.

Konor Cormier is an associate attorney at MehaffyWeber, PC, and holds a lifeguard certification from Ellis & Associates National Pool and Waterpark Lifeguard Training Program.

Endnotes
1. National Safety Council, Water Safety Resource Fact Sheet (Apr. 13, 2004) available at http://www.nsc.org/library/facts/drown.htm. 2. Safe Kids USA, Clear Danger: A National Study of Childhood Drowning and Related Attitudes & Behaviors (April 2004); Texas Department of Family and Protective Services, See & Save Statistics, available at http://www.dfps.state.tx.us/seeandsave/statistics.asp. 3. Texas Department of Family and Protective Services, See & Save Statistics, available at http://www.dfps.state.tx.us/seeandsave/statistics.asp. 4. Safe Kids USA, Clear Danger: A National Study of Childhood Drowning and Related Attitudes & Behaviors (April 2004). 5. Christy Oglesby, Report: Most Children Who Drown Are Supervised, CNN.com (May 27, 2004), at http://www.cnn.com/2004/HEALTH/05/27/drowning/index.html; Safe Kids USA, Clear Danger: A National Study of Childhood Drowning and Related Attitudes & Behaviors (April 2004). 6. Texas Department of Family and Protective Services, See & Save Statistics, available at http://www.dfps.state.tx.us/seeandsave/statistics.asp. 7. Harvey Rice, Child Deaths by Drowning Keep Rising, Hous. Chron., May 28, 2006, at B1. 8. Vaulx v. Colbert, No. 96-33780 (Tx. App.—Houston[14th Dist.] Sept. 9, 1999, no pet. h.) (not designated for publication), 1999 WL 694857 (parent brought suit against homeowner after their child, a social guest, drowned in their backyard pool). 9. Id. 10. Id. 11. Karven v. Lee, Cause No. SC070820, Los Angeles Co., Cal. (April 2003) (defense verdict in case alleging negligence on the part of homeowner from death of a four-year-old boy in a private pool). 12. The homeowner should request to see a current lifeguard certification because an expired lifeguard certification could even increase liability exposure. 13. Tex. Health & Safety Code Ann. § 757.002 (Vernon 2001). 14. §§ 757.003-757.008. 15. § 757.012. 16. § 757.012(a)(4). 17. 25 Tex. Admin. Code chp. 265, subchp. L (2004) (Tex. Dept. of St. Health Servs., Standards for Pub. Pools & Spas). 18. § 265.182(99). 19. § 265.203(a). 20. § 265.199. 21. See, e.g., Houston, Tex., Code of Ordinances ch. 43, art. II (1968) (Pools for Swimming & Bathing). By way of example, the City of Houston specifically mandates permits, that no intoxicated person may use a public or semipublic pool and that “[c]larity shall be sufficient such that the main drain lying on the floor of the pool at its deepest point is clearly visible or an eight-inch black disk placed in the deepest point of the pool is clearly visible at all times, regardless of whether the pool is or is not in use.” §§ 43-21, 43-22(a), 43-20(e)(2) (1968). 22. Harris v. La Quinta-Redbird Joint Venture, 522 S.W.2d 232, 234 (Tex. Civ. App.—Texarkana 1975, writ ref’d n.r.e). 23. 25 Tex. Admin. Code § 265.199(g)(9) (2004) (Tex. Dept. of St. Health Servs., Standards for Pub. Pools & Spas). 24. Houston, Tex., Code of Ordinances ch. 43, art. II, §§ 43-22(e) (1968). 25. In addition to the American Red Cross, other lifeguard certification programs are run by the Young Men’s Christian Association (YMCA). Also, Jeff Ellis & Associates, Inc.: International Aquatic Safety and Risk Management Consultants, licenses lifeguards for over 99 percent of the private water parks in the United States. 26. 25 Tex. Admin. Code § 265.199(g)-(k) (2004) (Tex. Dept. of St. Health Servs., Standards for Pub. Pools & Spas). 27. In researching this article, the author reviewed jury verdicts and settlements in over 100 lawsuits arising from drowning deaths nationwide from 1990 to 2006 reported in various state reporting services. All information regarding verdicts or settlement is taken from the sometimes limited information reported in these services. 28. See, e.g., Lewis v. Quaker Height’s Homeowner’s Assc, Cause No. ______, Lubbock Co., Tex. (Mar. 2003) (undisclosed settlement amount for death of five-year-old boy under the supervision of three lifeguards in a community pool). 29. See, e.g., Orr v. Spectrum Human Servs., Inc., Cause No. 02-223784-NO, Wayne Co., Mich. (Aug. 2004) ($1 million arbitration award where nine-year-old boy drowned in city pool with three lifeguards on duty); Gorbey v. Del. Co. Children’s Camp, Cause No. 020900944, Philadelphia Co., Penn. (July 2004) ($6,640,000 verdict where both lifeguards on duty left day camp pool unattended resulting in drowning death of eight-year-old boy); Johnson v. Lake Mission Viejo, Cause No. 02CC06188, Orange Co., Cal. (Oct. 2003) ($900,000 settlement where a 17-year-old boy drowned in lake where lifeguard on duty was inattentive). 30. See, e.g., Johnson v. Lake Mission Viejo, Cause No. 02CC06188, Orange Co., Cal. (Oct. 2003) ($900,000 settlement where 17-year-old boy drowned in lake where only lifeguard on duty for entire lakefront had less than one year of experience). 31. See, e.g., Monk v. Dean, Cause No. 03-288, Lauderdale Co., Ala. (May 2004) ($2,500,000 verdict where lifeguard incorrectly positioned poolside rather than on an elevated stand); Terry v. YMCA, Cause No. BUR-L-3869-02, Burlington Co., N.J. (March 2006) ($1,800,000 settlement where an 11-year-old boy drowned because lifeguard was incorrectly stationed pool-side where pool had a blind spot). 32. See, e.g., Lewis v. Quaker Height’s Homeowner’s Assc, Cause No. ______, Lubbock Co., Tex. (Mar. 2003) (undisclosed settlement amount for death of five-year-old boy after lifeguard on duty had signed decedent up for swimming lessons earlier that day). 33. See, e.g., Klinger v. YMCA of Tucson, Cause No. CV-2001-5387, Pima Co., Ariz. ($8,000,000 verdict in death of seven-year-old boy at YMCA pool where decedent was allegedly under water for more than 20 minutes). 34. See, e.g., Maracallo v. Bd. Of Educ., Cause No. 8746/95, Bronx Co., N.Y. (June 26, 2002) (jury awarded verdict of $10,000,000 to parents of 14-year-old boy who drowned in a wave pool where lifeguards and teachers did not search facility and child’s body was not found until the following day)

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