Who is liable when someone drowns?

There are few things more tragic than a drowning. These accidents often occur in the midst of a fun day. Someone is having a pool party, a birthday gathering or a barbeque and everyone is enjoying their time together. A child wanders too deep or falls in and the unthinkable happens.

Unfortunately, these accidents are not uncommon. The United States Consumer Product Safety Commission (CPSC) recently released a report that found 363 drowning incidents involving children under the age of 15 happened every year from 2014 through 2016. That’s over 1,000 children who died due to an avoidable accident in just three years — the majority of which were children under the age of five.

The CPSC also found that the majority of these accidents happen in residential areas. So what happens if a child or loved one dies when swimming in a neighbor’s pool? Who is responsible? The answer will depend on the details of the situation, but the following provides some basic guidance.

Responsibility and the legal doctrine of attractive nuisance

In North Carolina, a pool can be considered an attractive nuisance. This term basically means that the pool is something that would tempt a small child. Other examples can include a large hole when someone is digging out a basement for a new home or an old refrigerator out on the curb waiting for garbage collection. The rule of law expects homeowners to take extra caution when they have an attractive nuisance on their property. They are required to use what is referred to as a duty of care to protect children from the dangers of an attractive nuisance.

This can take on any number of approaches. When it comes to a pool, it could include a fence or secure covering. It can also include a person designated to watch and play the role of a lifeguard when others are swimming.

Because the law has this expectation, a victim or their loved ones can likely hold a negligent homeowner liable for injuries or death caused by a pool. If the neighbor fails to have a fence around the pool or to keep the gate closed, for example, they may meet the definition of negligence. A neighbor that allows others to use the pool without proper supervision could also qualify as negligent.

Negligence and liability for pool injuries

In order to establish that the homeowner was negligent, the victim or their loved ones generally needs to show the following:

• Duty. First, that the homeowner had a legal duty to keep the victim safe. If the neighbor invited the victim over, this is likely met.
• Breach. Next, that the homeowner did not meet, or breached, this duty. Examples could include the homeowner watching television, drinking alcohol, or otherwise not paying attention or clearly designating someone to serve as a lifeguard.
• Causation and injury. Finally, the victim or their loved ones would need to show that the neighbor’s failure caused an injury or the death of the victim.

You will need evidence to build a successful case. As such, it is wise to seek legal counsel to gather this evidence to meet the negligence elements outlined above and work on your behalf to hold the neighbor accountable for the accident.