Residential Swimming Pool Drownings: A Primer

Most swimming pool drowning victims experience serious brain damage after just three minutes underwater, so prevention is key to residential pool safety.

Active supervision is the best kind of prevention, but such watchcare is not always possible. Indeed, most all swimming pool drownings occur when no one else is around, and such supervision is impossible. There are legal standards in place that address these situations, so families can have the resources they need to help their children overcome their injuries, or if the child does not survive, to at least somewhat assuage their grief.


Legal Responsibility

To determine legal duty, some New York courts still use the traditional common law classification system. This process divides victims into:

  • Invitees (people who have express or implied permission to be on the land and whose presence represents an actual or potential economic benefit to the owner),
  • Licensees (permission without a benefit), and
  • Trespassers (neither permission nor benefit).

However, most courts simply ask if the victim had permission to be on the land, effectively eliminating the confusing middle category.

If the victim had permission to be on the land, the owner probably had a duty to inspect the premises (more on that in a minute) and make them safe. On the other end, owners usually owe no duty to trespassers. But there is a major exception.

If the property contains a swimming pool or other place where children are likely to play, the attractive nuisance rule usually applies. Since unsupervised children cannot distinguish between what is safe and what is unsafe, the law protects them by elevating child trespassers to invitees. In attractive nuisance cases, victim/plaintiffs must also prove that the owner knew about the swimming pool or other attractive nuisance, knew that children were likely to play there, and knew that the hazard posed a substantial risk of serious injury.

Another legal exception, the frequent trespasser doctrine, has been largely outlawed by statute. This rule protects hunters and other people who accidentally wander across a property line and are injured.


Establishing Liability

A section in the Uniform Fire Prevention and Building Code contains statewide safety rules for residential swimming pools. Some local ordinances may be different. The general rules include:

  • Alarm: Pools constructed after December 2006 must have audible alarms that go off when someone touches the water. An automatic pool cover is a legally-acceptable substitute.
  • Fence: All pools must be completely surrounded by a fence or barrier that is at least four feet high and “obstruct[s] access to the swimming pool.” If a building wall serves as part of the fence, all doors must be alarmed, have self-latching locks, or other safety mechanisms.
  • Temporary Fence: During construction or major renovation projects, the pool area must be enclosed by a temporary fence, and there must be a permanent barrier in place within 90 days after work is finished.

For liability to attach, there must be a connection between the injury and the dangerous condition. For example, a property owner is liable for damages if a child comes onto the property when no one is home and gets to the pool area by squeezing through a broken fence.

Compensation in these cases includes money for economic damages, such as medical bills, and noneconomic damages, such as pain and suffering. Special rules apply in wrongful death cases.